1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF AUGUST 2012 BEFORE THE HON’BLE MR. JUSTICE K.N.KESHAVANARAYANA CRL.A.No.2295/2005 (C) BETWEEN: 1. Rama Naika, S/o Sanna Naika, Aged 50 years. 2. Lakshmamma, W/o Rama Naika, Aged 42 years. 3. Santosh, S/o Rama Naika, Aged 25 years. All are Residing at No.14, CHESCOM Quarters, K.R.Nagar, Mysore District. … Appellants [By Sri.Venkatesh.D.Pastay, Advocate] AND : The State of Karnataka, By its K.R.Nagar Police, Represented by the State Public Prosecutor, High Court Buildings, Bangalore. ... Respondent [By Sri.G.M.Srinivasa Reddy, Government Pleader] 2 This Criminal Appeal is filed under Section 374 Cr.P.C. praying against the judgment dated 18.11.2005 passed by the III Additional Sessions Judge, Mysore in S.C.No.337/2003-convicting the appellants/accused Nos. 1 to 3 for the offence punishable under Section 324 read with Section 34 of IPC and sentencing appellants/accused Nos.1 and 2 to pay fine of Rs.3,000/- each with default sentence of S.I. for 6 months for the offence punishable under Section 324 read with Section 34 of IPC and further sentencing appellant/accused No.3 to undergo S.I. for a month and to pay fine of Rs.3,000/- with default sentence of S.I. for further period of 3 months for the offence punishable under Section 324 read with Section 34 of IPC. This Criminal Appeal coming for hearing on this day, the court delivered the following: J U D G M E N T This appeal by the convicted accused Nos.1 to 3 in S.C.No.337/2003 on the file of the III Additional Sessions Judge, Mysore is directed against the judgment of conviction and order of sentence dated 18.11.2005 convicting the appellants / accused Nos.1 to 3 for the offence punishable under Section 324 read with Section 34 of IPC and sentencing accused Nos.1 3 and 2 to pay fine of Rs.3,000/- and sentencing accused No.3 to undergo simple imprisonment for one month and to pay Rs.3,000/- for the said offence. 2. Accused No.1/ appellant No.1 and accused No.2/appellant No.2 are husband and wife while accused No.3/ appellant No.3 is their son. They are residents of Hanasoge Village, in K.R.Nagar Taluk. According to the case of the prosecution, on 28.1.2003 at about 6.00 p.m. in Hanasoge village, these three accused persons by sharing common intention in the background of the civil dispute, committed acts of assault on PW.1-Cheluvamma, her husband PW.2- Ramanaika and their son PW.3-Shankaranaika with choppers and club with an intention to commit their murder and cause grievous injuries for all of them. With those allegations, the appellants were tried for the offences punishable under Section 307 read with Section 34 IPC and Section 324 read with Section 34 IPC. The appellants pleaded not guilty for the charges levelled against them and claimed to be tried. 4 3. The prosecution in order to bring home the guilt of the accused persons examined PWs.1 to 10 and relied on documentary evidence Exs.P.1 to P.9. Apart from denying all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses during their examination under Section 313 Cr.P.C., the accused examined DWs.1 and 2 to support their defence that on the date and time of the alleged incident, accused No.1 was in his workplace at Hunasur as an employee of CHESCOM and accused No.3 was discharging his duty as Gate Keeper in a Cinema Theater in Periapatna. The defence of the accused was one of total denial and that of false implication. 4. The learned Sessions Judge, after hearing both sides and on assessment of the oral as well as documentary evidence, by the judgment under appeal, held that the appellants are guilty of the offence punishable under Section 324 read with Section 34 IPC. The learned Sessions Judge rejected the defence theory. Nevertheless, the learned Sessions Judge was of the 5 view that though the prosecution has proved the incident of assault on PWs.1 to 3 by accused Nos.1 to 3 at about 6.00 p.m. on 28.1.2003, the acts of assault cannot be held to have been committed with an intention to commit the murder of PWs.1 to 3, therefore, the ingredients of offence under Section 307 are not attracted. In this view of the matter, the appellants were acquitted of the charge levelled against them for the offence punishable under Section 307 read with 34 IPC and they were convicted for the offence punishable under Section 324 read with 34 IPC and sentenced as noticed supra. Aggrieved by the said judgment, the appellants have presented this appeal. 5. During the pendency of this appeal, it was reported that appellant No.1 died on 29.7.2007. Therefore, this court on the basis of such report, on 14.12.2007 ordered that appeal against appellant No.1 abates. At this stage, it is necessary to note that sub- Section (2) of Section 394 Cr.P.C. directs that every appeal other than an appeal under Section 377 or 6 under Section 378 and an appeal from a sentence of fine only, shall finally abate on the death of the appellant. However, proviso to sub-section (2) provides that where the appeal is against the conviction and sentence of death or of imprisonment, when the appellant dies during the pendency of the appeal, any of his near relatives may within 90 days of the death of the appellant may apply to the Appellate Court for leave to continue the appeal and if leave is granted, the appeal shall not abate. Appellant Nos.2 and 3 in this case are wife and son of appellant No.1. Though appellant No.1 has been convicted for the offence punishable under Section 324 IPC, he was not sentenced to undergo imprisonment for any term. He was sentenced to pay fine only. Reading of sub-section (2) of Section 394 Cr.P.C. makes it clear that appeal from a sentence of fine does not abate on the death of the appellant. Obviously this is with a view to recover the fine amount in the event of the court affirming the sentence from the estate of the convicted accused. Though in this appeal, both judgment of conviction and order of sentence are 7 challenged by appellant No.1, the challenge in so far as it relates to the conviction of appellant No.1 for the offence punishable under Section 324 r/w 34 IPC may not survive since there was no sentence of imprisonment and none of his near relatives have sought for leave to continue the appeal, challenge as to the sentence of fine would still survive. It is to that limited extent, though appellant No.1 has died, the appeal with regard to the challenge as to the sentence of fine would be considered. 6. I have heard the learned counsel appearing on both sides and perused the records secured from the court below. 7. The contentions of the learned counsel for the appellant are as under: that the judgment under appeal is highly perverse and illegal inasmuch as the learned Sessions Judge has not properly appreciated the material inconsistencies and discrepancies brought out in the evidence of PWs.1 to 4 which have rendered their testimony highly 8 unreliable since they are highly interested and motivated in the light of the admitted civil dispute between the two families; that the learned Sessions Judge has not assigned any reason for rejecting the testimony of DWs.1 and 2 except stating that the evidence of DWs.1 and 2 is not convincing, thus there is no consideration of the evidence of DWs.1 and 2 in the judgment under appeal as such the judgment under appeal suffers from non-consideration of the material evidence on record; that the evidence on record does not satisfactorily establish the incident alleged, therefore, the learned Sessions Judge is not justified in holding the appellants guilty of the offences alleged. Alternatively he contended that if for any reason this Court were to held that the judgment of conviction recorded by the court below does not warrant interference, the order of sentence is harsh and excessive regard being had to the offence for which they have been found guilty. 9 8. On the other hand, learned Government Pleader sought to justify the judgment under appeal contending that the judgment under appeal does not suffer from any perversity and illegality warranting interference by this Court. 9. In the facts and circumstances of the case and in the light of the submissions made on both sides, points that arise for consideration in this appeal are: (1) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? (2) Whether the order of sentence is harsh and excessive regard being had to the nature of the offence for which they have been found guilty? 10. There is no dispute that PWs.1 and 2 are husband and wife while PW.3-Shankaranaika and PW.4-Sharada are their children. They are also residents of Hanasoge village in K.R.Nagar Taluk. PWs.1 to 4 and accused No.1 to 3 are relatives. It is also an admitted fact that there was civil dispute 10 between the two families pending for over a several years. It is in the background of this admitted fact, the learned counsel for the appellant contended that the appellants have been falsely implicated in the case. The learned Sessions Judge has considered this argument and has held that the motive is a double edged weapon and it could be a ground for committing the offence as well as for false implication. Therefore, the learned Sessions Judge has considered the evidence on record and has come to a conclusion that the evidence of PWs.1 to 4 is consistent and cogent and inspires the confidence of the Court and their evidence with regard to the site of injury and the nature of the weapon with which such injury has been caused, gains corroboration from medical evidence. 11. With regard to the incident, the criminal law was set on motion by the complaint lodged by PW.1 in the form of statement recorded by PW.7-Puttaraj, Head Constable in the Hospital in K.R. Nagar. The said report is marked as Ex.P.1 in the case. According to the overt 11 acts attributed in the complaint against accused Nos.1 to 3, accused No.2 assaulted PW.2 on the head with chopper, accused No.1 assaulted PW.3 with a chopper, accused No.1 assaulted PW.2 on head with a club and PW.3 on the right palm with a club. The incident said to have occurred in front of the house of the accused on the road at about 6.00 p.m. while PWs.1 and 4 were returning to their house from the bus stand side. PWs.1 to 4 in their oral evidence have reiterated the facts stated in the complaint except for some minor changes as to the place from which PWs.1 and 4 were coming and the immediate cause for the incident. According to the complaint averments, PW.1 was collecting water from a tap near the house of the accused; that at that time her son and daughter, PWs.3 and 4 after alighting from the bus were proceeding towards the house; that at that time the dog of the accused started barking at PWs.3 and 4; that therefore PW1 with a view to drive the dog away pelted a stone at it; that on seeing this, accused Nos.1 to 3 came there holding choppers and clubs and assaulted PW.1; that 12 on seeing this, when PW.2 husband of PW.1 came there, he was also assaulted and when PW.3 went to the rescue of his mother he was also assaulted. However in the evidence before the court, there are some minor discrepancies in this regard. In my opinion, the learned Sessions Judge has rightly not viewed discrepancies in this regard seriously. Minor inconsistencies and discrepancies bound to appear when evidence is sought to be projected through human agency that too long lapse of time after the incident. There is no inconsistency as to the substratum of the case of the prosecution. Of course PWs.1 to 4 are closely related to each other and on that ground, their evidence cannot be discarded. PWs.1 to 4 have consistently stated about overt acts of each of the accused. In the cross- examination of these witnesses, there is nothing to indicate that their evidence is unreliable. The presence of PWs.1 to 4 in the village at time is not disputed. 12. The evidence of PWs.1 to 4 with regard to the assault on each of them with reference to the weapons 13 gets corroboration from the contents of the wound certificate. No doubt, the Doctor who treated them in the Hospital is not examined for the reason that he resigned from the job. However another Doctor, Dr.Mahadev who has been working in the Hospital has been examined as PW.9. He produced medical records and has spoken about its contents. The wound certificates as per Exs.P.7 to P.9 have been issued by a Government Hospital in discharge of official duty. There is a presumption as to the regularity of the official acts. The contents of Exs.P.7 to P.9 are not seriously disputed nor challenged by the accused. The contents of the wound certificates clearly indicate the part of the body on which PWs.1 to 3 sustained injuries. The site of the injury is consistent with overt act on the part of the accused as stated by PWs.1 to 4 in their evidence. Of course two independent witnesses examined by the prosecution as PWs.5 and 8 whose names finds place in Exs.P.1, have not supported the case of the prosecution and they have been declared hostile. Therefore, their evidence is of no assistance to the prosecution. 14 Nevertheless, there are no reasons to discard the evidence of PWs.1 to 4 with regard to the incident of assault. Therefore, in my opinion, the learned Sessions Judge has not committed any error in placing reliance on the evidence of PWs.1 to 4. 13. Of course perusal of the judgment under appeal indicates that the learned Sessions Judge except stating that testimonies of DWs.1 and 2 is not convincing has not set out the reasons as to why their testimonies are not convincing. The learned Sessions Judge ought to have assigned reasons for not accepting the testimony of DWs.1 and 2. As noticed supra, DWs.1 and 2 have been examined by the accused to prove the plea of alibi on the part of accused Nos.1 and 3. Therefore, it is for the accused to prove the said plea satisfactorily. Merely on the ground that the learned Sessions Judge has not assigned any reasons for not accepting the testimony of DWs.1 and 2, the judgment under appeal cannot be termed as perverse or as illegal. Therefore, let me consider as to whether the learned 15 Sessions Judge is justified in not acting on the testimonies of DWs. 1 and 2. 14. DW.1 is the Assistant Engineer working in Sub-Division of CHESCOM at Hunasur where accused No.1 was employed as a Mechanic. However, the evidence of DW.1 indicates that on the relevant date namely 28.1.2003, he was not the Assistant Engineer of that Sub-Division and one H.K.Ramesh was the Assistant Engineer of that sub-Division and said Ramesh was presently working in Belur Sub-Division. Said Ramesh has not been examined before the Court. DW.1 by merely producing the attendance register of the employees working in the said sub-Division has stated that on 28.1.2003 accused No.1 reported for duty as usual and signed the attendance register. According to him the working hours of all the workers was between 8.30 a.m. and 7 or 7.30 p.m. He further stated that Hanasoge village is at a distance of 40 kms from Hunasur and if one travels by bus atleast 1½ hours is required to cover the said distance. The attendance 16 register has been marked as Ex.D.8. No doubt as per the entries found in Ex.D.8, on 28.1.2003 accused No.1 reported for duty as it bears his signature. There is no dispute that accused No.1 was working as a mechanic and he was required to go out of the office to attend to the complaints if any on the power supply lines. Therefore, since DW.1 was not the Assistant Engineer at the relevant point of time, he was not in a position to state as to whether accused No.1 had gone out of the office after subscribing his signature in the attendance register. Therefore, from the evidence of DW.1, it cannot be definitely stated that on that day, accused No.1 was in the office at Hunasur till 7.00 or 7.30 p.m. Possibility of accused No.1 having come back to the village by 6.00 p.m. cannot be completely ruled out. Therefore, in my opinion, the evidence of DW.1 does not convincingly prove the presence of accused No. 1 in the office of the sub-Division at Hunasur at about 6.00 p.m. on 28.1.2006. On the other hand, the consistent evidence of PWs.1 to 4 establishes the presence of accused No.1 in the village and his participation in the 17 incident. Therefore, the learned Sessions Judge, in my opinion, has not committed any error in discarding the testimony of DW.1. 15. According to DW.2, at the relevant point of time, he was working in the Cycle stand of Sharada Theater at Periapatna and at that time accused No. 3 was working as Gate keeper in the said Theater. According to him, the working hours of the gate keeper was between 10.00 a.m. to 12.00 in the mid night. He has further stated that while accused No.3 was working as gate keeper in Sharada Theater he was staying in his grand mother’s house in Periapatna. Except the oral say of DW.2 that at the relevant point of time accused No. 3 was working as a gate keeper in Sharada Theater at Periapatna, no documentary evidence is produced to probabilise this fact. It is not as if no document is available to establish the said fact if accused No. 3 was working as a gate keeper in the said theater. In the absence of any documentary evidence, oral evidence of DW.2 to the effect that accused No. 3 was working as a 18 gate keeper in the said theater cannot be accepted. Assuming for the purpose of argument, as stated by DW.2, accused No.3 was working as a gate keeper in Sharada Theater, Periapatna, the evidence of DW.2 does not clearly indicate as to whether accused No.3 was on duty in the said theater on 28.1.2003. Therefore, the evidence of DW.2 cannot be a basis to hold that accused No.3 was not in the village. In this view of the matter, the learned Sessions Judge has rightly not placed any reliance on the testimony of DW.2 also. Therefore, there was no reason for doubting the testimonies of PWs.1 to 4 with regard to the participation of accused Nos.1 to 3 in the incident and committing the acts of assault on PWs.1 to 3. Therefore, the learned Sessions Judge in my opinion, is justified in holding that the appellants are guilty for the offence punishable under Section 324 r/w 34 IPC. 16. As noticed above, the learned Sessions Judge has acquitted the appellants for the offence under Section 307 r/w 34 IPC and since the State has not filed 19 any appeal against that part of the judgment, there is no need to consider as to whether the acts of assault committed by the accused was with an intention to commit the murder of PWs.1 to 3. The judgment of conviction recorded by the learned Sessions Judge is sound and reasonable regard being had to the evidence on record and does not suffer from any perversity or illegality warranting interference by this Court. 17. As noticed supra, the learned Sessions Judge sentenced accused Nos.1 and 2 only to pay fine while sentencing accused No.3 to undergo imprisonment for one month and to pay fine of Rs.3,000/-. The sentence of imprisonment of accused No.3 appears to have been passed keeping in mind that he was in custody for a period of more than one month. Having regard to the nature of the acts committed by the appellants on PWs.1 to 3 as also the nature of the weapons used, in my opinion, the sentence of fine ordered by the learned Sessions Judge cannot be termed as harsh or as excessive. As could be seen from the record, the 20 appellants have already deposited the fine amount. In this view of the matter, I find no ground to interfere with the order of sentence also. Hence, the appeal lacks merit. Therefore, the appeal is dismissed. SD/- JUDGE RS/*