IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 8” DAY OF SEPTEMBER, 2011 PRESENT THE HON’BLE MR.JUSTICE N.K.PATIL AND THE HON’BLE MR.JUSTICE C .R. KUMARASWAMY CRIMINAL APPEAL No.304 OF 2007 ciw CRIMINAL APPEAL No.2632 OF 2006 IN CRL.A.304/2007 BFflWEEN: STATE BY DEODURGA POLICE STATION. APPELLANT (BY SMTANURADHA M DESAI, ADDL.. SPP) AND: GIRIMALLAPPA, S/0. KHANDEPPA, AGED ABOUT 35 YEARS. RIO. DEVARGUDDA, DEODURGA TALUK, RAICHUR DISTRICT. RESPONDENT (BY SRI CHAITANYA KUMAR FOR SRI VEERESH B PATIL. ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 377 CR.P.C. PRAYING TO ENHANCE THE SENTENCE IMPOSED BY THE ADI)L. S.J. AND P.O., FTC-Ill. RAICHUR. IN S.C.NO.73/2006. DATED 17.11.2006 - CONVICTING THE RESPONDENT/ACCUSED NO.1 FOR THE OFFENCE P/U/S. 307 OF IPC ANI) SENTENCING HIM TO UNDERGO IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.5,000/- ID., TO PAYMENT OF FINE HE SHALL UNDERGO S.I. FOR ONE YEAR. IN CRL.A.2632!2006 BEIWEEN: GIRIMALLAPPA. S/O .KHANDEPPA. AGED ABOUT 35 YEARS, R/O. DEVARAGUDL)A. TALUK: DEVDURGA. DISTRICT: RAICHUR. APPELLANT (BY SRI CHAITANYA KUMAR FOR SRI. VEERESH B PATIL. ADVOCATE) ANT): ThE STATE OF KARNATAKA BY DEODURGA POLICE STATION. RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374 (2) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT AGAINST THE JUDGMENT DATED 17.11.2006 PASSED BY ThE P.O., vrC-III, RPJCHUR. IN S.C.NO.73/2006 - CONVICTING THE APPELLANT-ACCUSED NO.1 FOR ThE OFFENCE P/U/S.307 OF IPC AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.5.000/— I.D.. OF PAYMENT OF FINE HE SHALL UNDERGO S.I. FOR ONE YEAR. THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, C.R.KUMARASWAMY J, DELIVERED THE FOLLOWING: COMMON JUDGMENT Criminal Appeal No.2632/2006 is filed under Section 374(2) of Cr.P.C. by the counsel for the appellant/accused against the judgment dated 17.11.2006 passed by the Presiding Officer. Fast Track 3 Court-UI, Raichur In S.C.No.73/2006 convicting the appellant/accused for the offences punishable under Section 307 of Indian Penal Code and sentencing him to undergo Imprisonment for 3 years and to pay fine of Rs.5,000/- In default of payment of fine he shall undergo simple Imprisonment for one year. 2. CrIminal Appeal No.304/2007 is filed under Section 377 of Cr.P.C. by the State Public Prosecutor for the State praying that this Court may be pleased to enhance the sentence Imposed by the Additional Sessions Judge and Presiding Officer, Fast Track Court Ill, Raichur In S.C.NO.73/2006 dated 17.11.2006 convicting the respondent-accused for the offence punishable under Section 307 of Indian Penal Code and sentencing him to under go Imprisonment for 3 years and to pay fine of Rs.5,000/- In default of payment of fine he shall undergo simple Imprisonment for one year. 4 3. These two appeals arise out of the same judgment. Therefore, both the cases were heard together and disposed of by a common judgment. 4. The contents of FIR disclose that Deodurga Police have registered a case in Crime No.65/2004 against accused No. 1-Girimallappa S! Khandeppa. accused No.2-Khandeppa, SI Dodda Girimaliappa and accused No.3-Shankarlinga. SI Khandeppa Pujari for the offences punishable under Section 307 read with 34 of Indian Penal Code on the complaint of Khanderayagouda. 5. The contents of the complaint is as under: Complainant is one Khanderayagouda. He is aged about 52 years. He is an agriculturist and resident of Devaragudda. In the village there is one temple by name Sri. Girimallaiah temple. Khandeppa’s father Dodda Girimallappa was a priest. There was a dispute between the Girimallappa and his brother in connection 5 with performing the rites in the temple. Besides that there was dispute between them in connection with the immovable properties for the past two years. In this regard, Girirnallappa gave verdict in favour of Khandeppa therefore, there was ill will between accused No.1, their sons and Girimallappa. In this regard, Khandeppa and his sons Girirnallappa and Shankarlinga were threatening that they would kill the complainant. 6. That on 21.04.2004 at night complainant along with his wife Paramma and his children were sleeping in their house on the terrace and at 1.00 a.m. an assault was made on the cheek of the complainant. He got up and saw Girimallappa. He was holding a chopper, by the time he wanted to assault one more blow, his wife came and children also woke up and came to the terrace. Below the staircase. Sadri Khandeppa and Shankarlinga were standing there. They saw them from 6 the street light, when they started running Nandanna Dore. Khajappa and Hanumanthraya saw them and then he became unconscious. With an intention to kill him Khandeppa and Shankarlinga were standing in the down stairs and Girimallappa came to the terrace and assaulted the complainant. In fact, assault fell on the cheek instead of neck consequently. he sustained bleeding injuries. 7. As stated earlier, occurrence of the offence is intervening night between 21.04.2004 to 22.04.2004 at 1.00 a.m. The FIR was received by the learned Magistrate on 22.04.2004 at 1.00 a.m. through P.C.No.492 of Deodurga Police Station. 8. The contents of the charge sheet reveals that accused Nos. 1 to 3 were charge sheeted for the offence punishable under Section 307 read with 34 of Indian Penal Code. Its contents further discloses that on 21.04.2004 at 1.00 a.m. accused with a common 7 intention and due to previous enmity assaulted PW 1 by means of a chopper on his cheek consequently, he sustained grievous injuries. Accused Nos.2 and 3 were standing below the staircase. 9. PW1 is the injured. He has deposed that he knows accused Nos. 1 to 3. In their village there is a temple called Mylarlinga Amatheshwara Temple. There was dispute in respect of this temple between the accused and their brothers. To resolve these disputes, he had acted as a mediator. After making an enquiry, he decided that it should be partitioned. Decision of the mediator was not satisfied to the accused. 10. He further deposed that on 21.04.2004, after taking food, he along with his family members i.e. charge sheet witnesses 2 to 4 were sleeping on the terrace. To climb terrace there was staircase but there was no gate for it. In the mid night at 1 O’clock he received a blow. He was assaulted by means of a 8 chopper on his cheek. Then he woke up and saw accused No. 1-Girimallappa. Then the accused got down through the stairs. Accused Nos.2 and 3 were present below the stairs. Accused No. I got down from the stairs and went away. He has sustained injuries on his cheek, bleeding was present. He sustained fracture, when he raised cry, charge sheet witnesses 5 to 7 came there. Since he decided the dispute, accused No.1 with an intention to kill him has assaulted him on that night. His son Mallikaijun had been to Deodurga. Then he was shifted to Government hospital and it was 5.00 a.m., police came and enquired him and recorded his statement-Ex.P1 and obtained his signature. His signature is obtained on it. From Government hospital Deodurga. he was shifted to District hospital, Raichur. Then they referred him to Victoria Hospital. Bangalore. There was electricity supply on the terrace on that day, street lamp provided light on that day. Bed sheet, 9 blood stained towel, banian and underwear were also shown to him and they were marked as Mos, 1 to 4. 11. This witness was cross-examined by the learned counsel appearing for the accused in the Court below. During his cross-examination, he states that his statement was recorded in the Hospital, what he stated before the Police was recorded. Though this witness was cross-examined at length, nothing was elicited in his cross-examination to disbelieve his evidence. 12. PW2 is the wife of injured. She has deposed that, she knows the accused for the past two and a half years. Her husband and herself were sleeping in the terrace. At 2 O’clock, her husband woke up. Accused No.1 was holding chopper and he alighted from the staircase. Accused No.1 has assaulted her husband by means of chopper on his cheek. After hearing the noise, charge sheet witness Nos.5 and 7 came there. They shifted her husband in an auto rickshaw to government l0 hospital, Deodurga. Police came and enquired her. There were light on that day. There was a dispute between the accused and his brothers. Her husband has decided the dispute. Therefore, accused has assaulted her husband. Apparel of her husband was bloodstained and they were marked as Mos. 1 to 4. 13. PW3 Malllkarjun Is the son of the injured. He has deposed that, on 21.4.2004 at night, his father, mother and his brother Shivanagowda were sleeping. In the mid-night at 1 O’clock he heard the sound of his father. Then he went near his father and found that there was lnjtuy found on his cheek. He saw accused No.1 gettIng down from the staircase and he was holding chopper. Accused Nos.2 and 3 were standing there. Accused No.1 alIghted from the staircase and all the three ran away. Police came and enquired and recorded his statement. Ii 14. During his cross examination he states that, he got up. others did not wake up. He saw accused No.1 in the staircase. He has omitted to state before the police that he brought auto rickshaw and shifted his father to the Deodurga. 15. PW4 Shivanagouda is the son of injured. He has deposed that, on 21.4.2004 at night his father, his mother and his brother and sister were sleeping. At night 1 O’clock his father raised a cry. At that time, he saw accused No.1 alighting from the staircase. He was holding chopper. He has assaulted his father on his cheek by means of a chopper. When accused No.1 was alighting from the staircase, below of staircase accused Nos.2 and 3 were present. All the three went away. Then at night they brought auto rickshaw. His father was shifted to government hospital. Deodurga. M.O.5- handy stone, M.O.6- bloodstained mud and M.O.7- sample mud were marked. 12 a 16. During his cross examination he states that, police have not examined and enqulred him. 17. PW5 Nandanna Is a member of the Panchayat. He deposed that, the accused and his brothers were having a dispute and they requested to conduct a panchayat. During the panchayat It was decided that the property should be divided equally. Accused did not agree for the same. About 2 years 5 months back at about 1.30 am., he was sleeping in the house. He heard the weeping sound from the house of PW1 and he proceeded there and he saw that PW1 has sustained injuries on his cheek, his clothes were bloodstained. During his cross-examination he states that, there was a dispute between PW1 and Llngaiah’s son Qirimallappa and proceedings under Section 107 of Cr.P.C. was pending. PW5 went to participate In the panchayat. About 3 or 4 years back, panchayat was conducted in a Samudaya Bhavan by the side of the Amareshwara V 13 temple. During panchayat it was decided that,, the property should be divided between the accused and his brothers. The decision of the panchayat was not accepted by the accused. No writing was done in this respect. For the first time he is deposing before the Court about the panchayat. 18. PW6 has deposed that, about two years back he had been to the house of PW 1. He saw the apparel of PW1. He saw injured and his clothes were bloodstained. During his cross examination he states that, his eye sight is not good and he is unable to hear. There was a dispute between the accused and PW1 in connection with the Mutt and the land. 19. PW7 is the Dr.Patil Prabhakar. He has deposed that, on 22.4.2004 at about 7.00 a.m., Khanderayagouda has come to his hospital with a history of assault by Girimallappa. He treated him. He also sent intimation to Deodurga police. There was 4” of 14 injury on the cheek. There was a deep injury and it was bleeding. He gave first aid treatment and referred him to District hospital, Raichur. The Medical Officer. District HospitaL Raichur referred the injured to the Dental hospital, Bangalore. There was a certificate issued by the Bangalore Dental College. On the basis of that he opined that, there was a fracture on the mandible. It was a grievous injury. He has issued Ex.P2. The injury was caused six hours prior to his examination. When a person was sleeping and if he is assaulted by means of chopper. injury mentioned in Ex.P2 can result. 20. During his cross examination he states that, there was a damage to the mandible and there was deep injury, flesh was seen. Injury to the mandible is not sufficient to cause death. If a person falls on a sharp edge, such injury can result. The report of the Bangalore Dental College indicates that, there was fracture of mandible. He did not take any Xray from 15 District Hospital, Raichur. The injured brought X-ray on 13.6.2004. According to Ex.P2, the injured has sustained simple injuries. He also denies the suggestion put to him that injured has sustained only simple injuries. 21. PW8 is the witness for spot panchanama. He is also witness for seizure panchanama. Under seizure panchanama, bed sheet and apparel injured was seized. This witness has turned hostile to the side of the prosecution. 22. PW9 is the witness for seizure of blood. bloodstained clothes and bed sheets. This witness has turned hostile to the side of prosecution. 23. PW1O has deposed that, he has affixed his signature to Ex.P5. This witness has turned hostile to the side of prosecution. During his cross examination he states that, on 13.6.2004 accused No.3 led him and 16 S.. police to the place where chopper was thrown. To that effect, panchanama was drawn. 24. PW1 1 has deposed that, he has affixed his signature to Ex.P5. His signature was obtained at Deodurga police station. He has turned hostile to the side of the prosecution. During his cross examination he states that, no panchanama was drawn at Devaragudda Cart track. 25. PW12 has deposed that, he was working as Assistant Executive Engineer In the GESCOM Deodurga. He has deposed that, on request of the Circle Inspector of Police, he has furnished Ex.P6. As per Ex.P6, that on 21.4.2004 and 22.4.2004 there was supply of electricity In the night at Devaragudda village. During his cross-examination he states that, police have not enquired with regard to log book entry. Line man was one Sharanappa. He has not enquired Sharanappa. VI 17 He Is not personally aware whether supply of electricity was there or not on the date of Incident. 26. PW13 Is the Medical Officer of Government Dental College, Bangalore. He has deposed that, Khanderayagowda was referred from District Hospital. Raichur to Bangalore Dental Hospital. He examined Khanderayagowda on 27.4.2004 at 9.25 a.m. He dressed the mandible and Injured has sustained Injury to the mandible. There was a fracture on the lower jaw. He referred the patient to the x-ray department. According to the x-ray report, Khanderayagowda has sustained fracture on the rIght side mandible. He has made entry In the register. He has produced x-ray which was marked as Ex.P8. He has also Issued certificate to Khanderayagowda. 27. During his cross examination he states that, based on the clinical examination and also x-ray report, he states that, Khanderayagowda has sustained V 18 a.’ fracture. Khanderayagowda was examined by Dr.Mobln. 12 molar teeth wifi be there in the human being. If a person is assaulted by means of wrist or fall on a ground, such injury cannot result. Injury Nos.2 and 3 are the corresponding injuries. He has not sent report to the District hospital, Raichur. He Is unable to tell In what position the Injured has sustained Injuries. Even after sustaining Injury. Injured can walk. The injury sustained by the Injured Is not danger to the human life. 28. PW14 is the PSI. He has deposed that, between 7.1.2004 to 7.9.2005 he was working as a PSI at Deodurga police station. On 22.4.2004 at 7.00 a.m. he received MLC memo from the government hospital, Deodurga. Then he proceeded to the hospital. He recorded the statement of the injured Khanderayagowda, then he returned to the police station and regIstered a crime and prepared the HR and €1 19 transmitted the same. Ex.Pl is the statement of injured. Ex.P 1(a) is the signature. Again he proceeded to the hospital and panche, banian, underwear, towel were seized under Ex.P4 panchanarna. They were marked as Mos. 1 to 4. Then he proceeded to Devaragudda and inspected the spot which was pointed out by Shivannagowda. The spot was terrace of the complainant’s house. At the spot bed sheet, one small stone, bloodstained mud were found. He seized the same. Stone and mud were also bloodstained. He also collected the bloodstained stone and sample mud and were marked as M.Os.5 and 6. He has recorded the statements of the charge sheet witness Nos.2, 3, 4 and 6. He has also recorded the voluntary statement of the accused. Accused No.3, led panchas to Karigudda road and pointed out the place where the chopper was kept, but chopper was not found there. In this regard, he drew the panchanama as per Ex.P5. On 13.6.2004 he received wound certificate of Khanderayagowda from the 20 I. government hospital, Deodurga. He also received certificate from the dental surgeon. Further. Investigation of the case was handed over to Circle Inspector of police. He subjected accused Nos.2 and 3 to judicial custody. 29. DurIng his cross examination he states that, there were houses In and around the house of complainant. During snmmer persons used to sleep on the terrace. In Deodurga then were two parties and there were cases pending under Section 107 of Cr.P.C. The prosecution wItnesses 1 to 5 and Girimailappa have Initiated proceedings under Section 107 of Cr.P.C. Then *as dispute between accused No.2 and his brothers In connection with the property belonging to Mutt. 30. PW15 was working as Circle Inspector of Police from 07.10.2002 to 11.09.2005 at Deodurga. He took up further Investigation of this case. He perused the Investigation made so far. Accused No.1 was .1 21 absconding. He laid charge sheet against accused Nos.1 to 3. 31. During his cross-examination. hestates that at Deveragudda there is a Mutt by name Amareshwara temple. Accused No. 1 was the administrator of the Mutt. In that Mutt, they used to perform prayer. The Mutt was having immovable property. In this regard, there was civil dispute. There were two parties in Devaragudda. 107 Cr.P.C. proceedings were pending against both the parties. 32. Statement of the accused was recorded. Accused denied the prosecution allegations. 33. The sum and substance of the finding of the Trial Court is as under: 34. PW1 has stated that in respect of temple property there was a dispute between the accused and their cousin, to resolve the dispute about two and half 2’) years back elders were gathered in the temple and having heard the both the parties a decision was taken in the Panchayat, but the accused was not satisfied with the decision. PW5 stated that himself, PW1 and other elders of village in the Panchayat resolved the dispute between the accused and their cousin for which accused did not agree. Admittedly. cases were booked between PW.1 and PW.5 on one side and accused and others on the other side under Section 107 of Cr.P.C. The relationship between the accused and PW1 was not cordial. 35. The Trial Court has observed at Para-5 that PWs. 5 and 6 have stated that, on that night having heard the noise near the house of PW1, they went there and saw injury to the mandible of PW1 and bloodstains to the clothes of PW 1 They stated that PW 1 was taken to Hospital. PW7 stated that he was Senior Specialist in Deodurga Government hospital, on 22.04.2004 he 23 examined PW1 In the hospital who had come with his relatives with the history of assault by one Girimallappa (A-i). He Infonned the Police and noticed 4”Xi/4” muscle deep cut Injury on the mandible of PW1 with blood oozing. PW7 also stated that having given first aid to PW1 sent him to Raichur District Hospital, who had referred him to Bangalore Dental College Hospital, from where he received the certificate. On the basis of which he has given certificate as per Ex.P2 certifying that mandible of PW1 was fractured and It was grievous Injury. PW7 also stated that such injury would be caused by assaulting with a chopper to the person who had slept facing upwards. PW13 was the Assistant Dentist In the Government Dental College. Bangalore. He has stated that on 27.04.2004 he examined PW1, who was referred by District Hospital Raichur, noticed a sutured and dressed wound in the mandible of PW1 from left mental foramen to right mandible angle. PW13 had referred PWi to the radiologist from where he got V 24 report EX.P7. On the basis of which he made an entry in the register Ex.P7. At Ex.P7-a that the mandible of PW1 was fractured from last tooth of left side upto the last tooth of right side. Ex.P8 is the x-ray taken by radiologist while examining PW 1. 36. The Trial Court has also observed that PW12- Assistant Executive Engineer has stated that on the night in between 21.04.2004 and 22.04.2004 there was supply of electricity to the Devaragudda village. 37. The Trial Court has mentioned in its judgment at para- 11 that the evidence of PWs 1 to 4 is corroborating with each other with regard to the incident in which PW1 suffered injury to mandible. They have stated that soon after PW 1 suffered assault he awoke and made cry. they saw accused No.1 in the terrace. getting down from the staircase holding the chopper. Accused No.1 was not a stranger to PWs1 to 4, they could easily identify him. Regarding the 25 a presence of accused No.1 in the terrace, immediately after PW1 suffered the assault, PWs1 to 4 speaks about this. The possibifity of PW1 suffering such an injury to his mandible as suggested by defence cannot be accepted. The Injury is definitely due to assault with sharp edged weapon. The circumstances i.e., time and place chosen by accused No.1 to attempt on PW1 clearly indicate that he intended to take life of PW1. Non- examination of Laxml and Lingainma daughters of PWs 1 and 2 is not fatal to the prosecution case. When the incident occurred in. the mid night, that too in the terrace of the private house, one cannot expect the independent witnesses. The discrepancy in the evidence of PWs1 to 4, with regard to the position of sleeping of PW1, position of assailant at the time of assault, places where PWs2 to 4 had slept, are quite natural since prosecution is focussing its case after two and half years of the incident Non-marking of blood stained bed sheet, non-recovery of incriminating article V 26 chopper on the basis of the voluntary statement of accused No.3 themselves are not sufficient to disbelieve the prosecution case. They are not material discrepancies and Infinnities to take away the entire prosecution case. Hence, accepting the evidence of PWs1 to 4, It is held that accused No.1 made an attempt to cause death of PW1 by assaulting with chopper. 38. The trial Court has held that, accused No.1 was guilty of the offence punishable under Section 307 of the Indian Penal Code. The Trial Court considering that accused No.1 Is the head of Matadipathy and he dealt only one blow, he did not repeat the blow. In such circumstances, lenient view be taken In the matter of sentencing him. It has come In the evidence that, accused No.1 is unmarried and he is Matadipathy. It Is also the prosecution case that, accused No.1 dealt only one blow with chopper on PW1. There was no previous conviction as alleged against accused No.1 for similar 27 V