Karnataka High Court
Sri Venkatesha vs The State Of Karnataka on 15 November, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 834 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 834 OF 2012
BETWEEN:
SRI VENKATESHA
S/O LATE SRI DHASAPPA
AGED ABOUT 24 YEARS
R/A NO.241, KAVERI NAGAR
NEAR ASHWATHA KATTE TEMPLE
2ND STAGE, BANASHANKARI, BANGALORE
REP. BY HIS MOTHER SMT. GOURAMMA
...APPELLANT
(BY SRI. SATYANARAYANA S CHALKE.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP BY THE STATION HOUSE OFFICER
BANASHANKARI POLICE STATION
BANGALORE CITY
...RESPONDENT
Digitally signed by (BY SRI.K. NAGESHWARAPPA, HCGP)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING THAT
COURT OF
KARNATAKA
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE DATED
23.04.2012 PASSED BY THE P.O., F.T.C.-12, BANGALORE IN
S.C.NO.735/2011 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 307 OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
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CRL.A No. 834 of 2012
ORAL JUDGMENT
1. This appeal is filed by the sole accused praying
to set aside the judgment of conviction and order on
sentence dated 23.04.2012 passed in S.C. No. 735/2011
by the Additional Sessions Judge and Presiding Officer,
Fast Track Court - 12, Bengaluru. The appellant - accused
has been sentenced to undergo rigorous imprisonment for
a period of 7 years and to pay fine of Rs.10,000/- and in
default to undergo rigorous imprisonment for a period of
1 year.
2. Factual matrix of the case is that P.W.4 - Smt.
Lakshmamma has filed a complaint - Ex.P.4 stating that
on 10.03.2011, at about 02.30 pm, when she was washing
clothes in front of her house, her neighbor - appellant -
accused came to her house and threw stones on the
sheets of her house, caused damage and claimed that the
said house belongs to him and she has to vacate the
same. Further, he took knife and caused cut injury to her
neck and at that time one Kulli - sister of appellant -
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accused was also present at the spot and she did not stop
the appellant - accused. She immediately went to the
Police Station and the Police took her to the Hospital and
she took treatment. The Police after investigation filed
charge sheet against the appellant - accused for offence
under Section 307 of IPC. Case came to be committed to
the Sessions Court. The Sessions Court framed charge
against the appellant - accused for offence under Section
307 of IPC. In order to prove the charge the prosecution
has examined 9 witnesses as P.W.1 to P.W.9 and got
marked Ex.P.1 to Ex.P.13 and material objects as M.O.1 to
M.O.3. Learned Sessions Judge after hearing arguments
formulated points for consideration and passed the
impugned judgment convicting the appellant - accused for
offence under Section 307 of IPC. Said judgment of
conviction and order on sentence has been challenged in
this appeal.
3. Heard learned counsel for appellant - accused
and learned HCGP for respondent - State.
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4. Learned counsel for appellant - accused would
contend that the complaint came to be registered on
11.03.2011 at 12.45 am and FIR has been handed over to
the Magistrate at 10.00 pm on 11.03.2011 and said delay
has not been explained. The spot has been shown by
P.W.7 - Muniraju who is the son of P.W.4 - injured and
the spot mahazar has been drawn and he was not eye
witness to the incident. Ex.P.10 - wound certificate has
been issued by the General Hospital, Jayanagar,
Bengaluru. P.W.4 has not stated that she had been taken
to General Hospital, Jayanagar, Bengaluru and she had
taken any treatment in that Hospital. P.W.4 is stated to
have taken treatment in Victoria Hospital, Bengaluru, but
no documents pertaining to Victoria Hospital, Benagluru
have been produced. The injury noted in Ex.P.10 - wound
certificate is stated to be simple in nature and if that injury
was life threatening, she ought to have gone to the
Hospital instead of Police Station. No documents are
produced to show that P.W.4 has been admitted to Victoria
Hospital for 5 days from 10.03.2011 to 14.03.2011. What
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is the treatment given to P.W.4 in Victoria Hospital,
Bengaluru, has not been brought on record. The recovery
of M.O.2 - cutter and M.O.3 - blood stained shirt from
appellant - accused as per his voluntary statement under
mahazar - Ex.P.1 has not been proved as P.W.1 and
P.W.2 panchas have not supported the case of
prosecution. Even though M.O. 1 to M.O.3 have been
seized on or before 12.03.2011 there is delay in sending
them to FSL as they are sent to FSL on 07.06.2011.
Panchas to Ex.P.7 - seizure mahazar of the saree - M.O.1
have not been examined even though they are cited as
C.W.5 and C.W.6 in the charge sheet. P.W.7 has stated
that he had produced the saree before the Police on
11.03.2011 but the mahazar has been prepared on
22.03.2011 as per Ex.P.7. P.W.4 has deposed that she had
handed over the saree to the Police and therefore there is
contradiction with regard to production of M.O.1 - saree to
the Police. The material objects M.O.1 to M.O.3 have been
sent to FSL one day prior to the filing of the charge sheet.
M.O.2 - cutter has not been shown to the Doctor for
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getting opinion as to whether it can cause the injury
stated to have been sustained by P.W.4. Ex.P.4 -
statement of P.W.4 on the basis of which case came to be
registered is stated to have been given by P.W.4 in
Victoria Hospital, Bengaluru. Who has recorded the
statement of P.W.4 - Ex.P.4 has not been brought on
record and the said person has not been examined. P.W.3
in his cross-examination has sated that he had sent one
Kanthatraju, ASI, to Victoria Hospital, Bengaluru but he is
neither cited as a charge sheet witness nor has been
examined. Conviction has been rendered on the basis of
sole testimony of P.W.4. As there is dispute with regard to
the property in which P.W.4 is residing and in respect of
which Hakku Patra has been issued in favour of appellant
- accused, sole testimony of P.W.4 cannot be the basis for
conviction as there is a property dispute between P.W.4
and the appellant - accused. P.W.4 has stated that
appellant - accused assaulted her with knife but what is
seized is a cutter. On these grounds he prayed for allowing
the appeal and acquit the appellant - accused.
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5. Learned HCGP appearing for the respondent -
State would contend that P.W.4 is the injured and she has
specifically deposed regarding this appellant - accused
throwing stones on her house and assaulting her with
knife on her neck and causing injury. The sole testimony
of P.W.4 - injured is sufficient to convict the appellant -
accused for offence under Section 307 of IPC. The injury
caused to P.W.4 is on neck which is a vital part. He
supports the reasons assigned by the trial Court in
convicting the appellant - accused. On these grounds he
prayed for dismissal of the appeal.
6. Having heard the learned counsel for the parties
and considering the material placed on record, the
following point arises for my consideration.
Whether the trial Court has erred in
convicting the appellant - accused for offence
under Section 307 of IPC?
7. My answer to the above question is in the
Affirmative for the following reasons:
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P.W.4 is the injured and incident is stated to have
taken place on 10.03.2011 at 02.30 pm when P.W.4 was
washing clothes in front of her house. After the incident,
P.W.4 is stated to have gone to the Police Station. The
Police are stated to have taken P.W.4 to General Hospital,
Jayanagar, Bengaluru and after treatment, she was
referred to Victoria Hospital, Bengaluru. As per Ex.P.10 -
wound certificate P.W.4 has been examined by the Doctor
at 04.40 pm i.e, 2 hours 10 minutes after the incident.
P.W.4 in her entire evidence has not stated that she had
been taken to General Hospital, Jayanagar, Bengaluru.
P.W.4 has deposed that she had been taken to Victoria
Hospital, Bengaluru. The prosecution has not brought on
record the documents pertaining to Victoria Hospital,
Bengaluru, for having given treatment to P.W.4 in the said
hospital. P.W.9 - the Doctor has stated in Ex.P.10 -
wound certificate that the same has been issued after
receipt of records from the Victoria Hospital, Bengaluru
and she has handed over the records of the Victoria
Hospital to the Investigating Officer. The Investigating
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Officer has not produced any records pertaining to Victoria
Hospital, Bengaluru. What is the treatment given to P.W.4
at Victoria Hospital, Bengaluru has not been brought on
record. In Ex.P.10 - wound certificate, as per the history
noted, assault has taken place at 02.00 pm on 10.03.2011
but as per the version of P.W.4 the incident has taken
place at 02.30 pm.
8. Ex.P.4 - the statement on the basis of which
case came to be registered has been recorded when P.W.4
was admitted in Victoria Hospital, Bengaluru. The Police
Official who recorded the said statement has not been
cited as a charge sheet witness nor has been examined.
P.W.3 in the cross-examination has stated that he had
sent Kantharaju - ASI to record the statement of P.W.4.
Said Kantharaju - ASI has not been cited as charge sheet
witness and he has not been examined as a prosecution
witness. Therefore, the prosecution has not brought on
record as to who recorded Ex.P.4 - statement of P.W.4
when she was admitted in Victoria Hospital, Bengaluru. On
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the said statement - Ex.P.4 there is a signature of the
Doctor and who is that Doctor has not been brought on
record and the Doctor has not been cited as a witness or
not been examined to establish as to whether the injured -
P.W.4 was in a condition to give statement at that time.
9. M.O.2 - cutter and M.O.3 shirt of appellant -
accused have been recovered under mahazar - Ex.P.1
from the house of appellant - accused. P.W.1 and P.W.2
are panchas to Ex.P.1 - mahazar and they have not
supported the case of the prosecution. Recovery of M.O.2
- cutter and M.O.3 - blood stained shirt at the instance of
appellant - accused under mahazar has not been proved.
P.W.4 has stated that she was assaulted with a knife but,
what is recovered under mahazar - Ex.P.1 is a cutter
which is at M.O.2.
10. There is a dispute with regard to property
between appellant - accused and P.W.4 and it is brought
on record in the cross-examination that Hakku Patra in
respect of the said property has been issued in favour of
appellant - accused. Considering the aspect that there was
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a dispute with regard to the property between P.W.4 and
appellant - accused, the sole testimony of P.W.4 cannot
be based for convicting the appellant - accused. The sole
testimony of P.W.4 cannot inspire the Court to convict the
appellant - accused for offence under Section 307 of IPC.
Without considering all these aspects learned Sessions
Judge has erred in convicting the appellant - accused for
offence under Section 307 of IPC. Considering the above
aspects benefit of doubt is to be extended to the appellant
- accused.
11. In view of the above the following;
ORDER
i. Appeal is allowed.
ii. The judgment of conviction and order on sentence
dated 23.04.2012 passed in S.C. No. 735/2011 by
the Additional Sessions Judge and Presiding Officer,
Fast Track Court - 12, Bengaluru is set aside.
iii. The appellant - accused is acquitted for offence
under Section 307 of IPC.
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iv. Fine, if any, paid by the appellant - accused is
ordered to be refunded to him.
Learned counsel for appellant - accused submits that
the appellant - accused is in custody and he is lodged in
Central Prison, Bengaluru. Registry is directed to issue
intimation to the said prison authorities for release of
appellant - accused if he is not required in any other case.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
