IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD. DATED THIS THE 18 DAY OF APRIL 2011 PRESENT THE HON’BLE MR.JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRL.A.No. 1976/2005.fA) BETWEEN: State of Karnataka by the P.S,I., Aigali Police Station, Athani Circle, Tq. Athani, Dist: Belgaum. Appellant (By Sri. V.MBanakar, Addi. SPR) AND: Shrishail Yamanappa Dodamani, Aged about 40 years, 0cc: Goundy Coolie Work, R/o Chikkapadasalagi, Tq Jamkhandi, Dist: Bagalkot Respondent (By Sri, Santosh B. Malagoudar. Adv.) This Crl.A.is filed u/S 378(1) & (3) Cr.P.C. b\ the SPP for the State praying to grant leave to file an appeal against the judgment and order of acquittal dated l5032005 passed by the Fast Track Court I, (District and Sessions Judge), Chikodi, in SCNo. 113/2002 acquitting the Respondent/ accused for the offences punishable u/S 49S-A, 307 of IPC. This CrLA. coming on for final hearing this day, Subhash B. Adi, J, delivered the following; JUDGMENT This is an appeal by the State against the Judgment of acquittal passed in S.CNo. 113/2002 dated 150320O5 on the file of Fast Track Court-l, (District and Sessions Judge), Chikodi. 2. The accused- Shrishail Yamanappa Dodamani was charged for the offence punishable under Section 498-A, 307 of LP.C. 3. P,W. I is the wife of the accused, P.W. 11 is the sister of the P.W. 1-complainant. Marriage of the accused with P,W, I was held about 18 years prior to the incident, PEW. I lived with her husband for about 14 years and out of the said wed lock they had three male children. However, the accused was ill-treating and torturing P,W. 1. Thus, she left the house of her husband and lived with her parents. Thereafter, at the advise of the elders, she went back to the house of the accused, However, accused started suspecting her fidelity and started quarrelling and used to assault her, On account of the harassment, P,W. 1 left the house of the accused about one and a half months prior to the incident. About eight days prior to the incident, accused came to the house of PW. 1 asking her to join him, However, P.W. 1 refused to go with him, On 19,03,2001, at about 3,00 p.m, accused came to the house of P.W. 1 and asked her to come with him, At that time, her sister Mallavva, brother Shetyappa, Muttavva, Somanna, Mayappa and Appasab were there, When P,W, 1 refused to go with him, he removed a knife from his pocket and assaulted on her chest, abdomen, left arni and right thigh. She came out screaming. By that time, PW. 11- Mallavva-sister of P,W. 1, father-Ningappa Madar, brohter Shetyappa Madar, Muttavva and Gurappa brought a vehicle and took her to Aigali. Government Hospital. There she was 4 treated by P.W.20-Dr. Prakash. Police got the information over the phone. P.W. 19- Murigeppa, A.S.L, went to the hospital, recorded the statement of P.W. 1 and registered a case and referred the matter to P.W.21-Balachandra, P.5.1. P.W.22-Dr.Sidrama had first seen the P.W. 1. P.W.22, issued wound certificate-Ex.P. 19. P.W.2 1 conducted spot panchanama, recorded the statements of the witnesses, arrested the accused, seized the articles and after completion of investigation, filed charge sheet. 4. On committal, the learned Trial Judge secured the presence of the accused and framed the following charges for the offence punishable under Section 498-A, 307 of IPC. CHARGE 1) That you accused married with complainant Smt. Sugandha about 18 years back from 19.03.200 1 being husband of Sugandha subjected her to cruelty by willful conduct which is of such a nature as is likely to drive her to commit suicide or cause grave ) injury or danger to life, limb or health of Sugandha, you suspected her chastity used to beat her, rn-treated, subjected her to cruelty mentally, physically, harassed her, thereby committed an offence punishable u/S 498(A) IPC within the cognizance of this Court. 2) That you accused on 19.03.200 1 at about 3.00 p.m. at Telsang Village within the jurisdiction of Aigali P.S., Tq. Athani in the house of Ningappa Nargatteppa Madar, father of complainant Sugandha when she was residing with her parents you have stabbed with a knife on the stomach near navel, thigh and left hand elbow with such intention or knowledge and under such circumstances that if by that act you had caused the death of Sugandha, you would have been guilty of murder you have caused grievous injury to Sugandha, attempted to murder her, thereby committed an offence punishable under Section 307 IPC within the cognizance of this Court. 6 ‘V 5. Before the trial court, the prosecution in order to prove the charge, examined P.W. 1 to P.W.24, marked Ex.P. 1 to Ex.P. 19. On the defence side, portion of the statement of P.W.3 and P.W.4 were marked as Ex.D. 1 and Ex.D.2 and portion of statement of P.W. 11 was marked as Ex.D.3 and Ex.D.4. M.O.1-Petticoat, M.O.2-Blouse, M.O.3-Saree, M.O.4- Knife, M.O.5-Sample earth, M.O.6-Blood stained earth and M.O.7-Kerchief were marked and produced. 6. The Trial Court disbelieved the evidence of P.W. 1- injured witness and also observed that P.W. 11 and P.W. 13 are the eye witnesses to the incident and their evidence does not support the case of the prosecution and by the judgment impugned in this appeal, acquitted the accused. As against the said judgment, the State is in Appeal. 7. We have heard Sri. V.M.Banakar, learned Addi. SPP for the State and Sri. Santosh B. Malagoudar, learned counsel for the accused. 7 I 8. P.W.2 to P.W.6 who were examined as eye witnesses to the incident have not supported the case of the prosecution. Similarly, P.W. 11 has partially supported, P.W. 13 another relative has not supported the case of the prosecution. P.W.9 and P.W. 10 witness to the spot mahazar and seizure mahazar have not supported the case of the prosecution. P.W.7 is the Tahsildar who recorded the statement of P.W. 1 as per Ex.P.5. P.W.8-Baiasaheb carried the FIR to the Court. P.W.9- Ramanna is the witness to the spot maha.zar-Ex.P.7. P.W. 14- Allauddin took the injured in his vehicle to Aigali Government Hospital. P.W. 15 is witness to Ex.P. 11, P.W. 16 witness to the seizure of blood stained clothes under Ex.P. 12 have not supported the case of the prosecution. P.W. 17 is witness to the seizure of the weapon has also not supported the case of the prosecution. P.W. 18 took the articles to FSL. P.W. 19-ASI recorded the statement of P.W. 1 in the hospital. P.W.20 is the Doctor who treated P.W. 1. P.W.2 1 is the 1.0, P.W.22 is another Doctor who treated P.W. 1. P.W.23 is witness to the spot mahazar Ex.P.16. P.W.24 is the A.S.I who got the articles from FSL, Bangalore, after examination. 9. From amongst 24 witnesses examined on behalf of the prosecution, except P.W. 1 —injured witness. P.W. I 9-A.S.I who recorded the statement of P.W. 1, P.W.20-Doctor. P.W.2 1-1.0, P.W.22-another Doctor, the material witnesses such as eve witnesses have not supported the case of the prosecution. 10. The entire case of the prosecution is dependent on the evidence of injured P.W. 1—Smt. Sunanda T Sugandha, wife of the accused. In her evidence, she has stated that she lived with her husband-accused for 13 to 14 years. Accused used to assault and ill treat her. He was not properly feeding her. There were several panchayaths. Even after that, he had not improved. On the date of the incident, at about 2.00 p.m. when she was sleeping, accused came and assaulted her with knife on her chest, left hand, right thigh and abdomen. When she ran out screaming, accused ran away from the place with knif€., at that time, Muttavva and Mallavva came and took her ‘.4 — C, me! a’ ‘-I me CDme CD eq m ‘t w CD : ‘t CD me a CD ‘ CD L( CD 0 0 t 91 eq WI Cl) 0 ‘ a’ Cii CD me CD I WI f a a CD CD CD WI 0 0 0 > me CD ! ‘ a’ S 0 a’ 0 a 1 cv 08ot CDI a’ a g ge’g. WI eq me a e a’ B4 ft 0 o a’ 00a’BCD e 0 0 WI 0 g g’ i meg’ g , me CDme CD a IC a’ CD t I -Os 8 0 • a a’a’ so I0 0 p.m. She has also stated that accused assaulted on her left hand, right thigh, chest and abdomen. P.W.22-Doctor who examined P.W. 1 has issued wound certificate-Ex.P. 14. He has examined the complainant at 4.30 p.m. on 19.03.2001 i.e., within one and half hour of the incident and found four injuries as under: (1) C.L.W. over lateral aspect of left arm 6 cm x 3cmx2cm. (ii) C.L.W. over just below the lateral aspect of left mammary area measures 6 cm x 4 cm x 2 cm. (iii) C.L.W. over left renal angle measures 4 cms x 4 cms x 4 cms. (iv) C.L.W over medial aspect of Rt. Thigh measures2cmsx 1 ½cmx 1cm. P.W.22 is the Doctor who examined the injured and took x ray, has given report-Ex.P. 19. It shows fracture of 6th rib out axiller lime (left side). 11 11. No doubt, the prosecution has not proved the recovery of M.O.4-knife, Even P.W. 1 has not identified M.O.4 used by the accused to assault. However. P.W, 1 in her complaint Ex,P, 1 and in her evidence has consistently stated with regard to her marriage with the accused about 18 years prior to the incident and difference between them and living with her parents. The complaint, evidence of P.W. 1 corroborate with the evidence of doctor P.W22 and the wound certificate Ex.P, 14. In the crossexamination of P.W, 1, suggestion is made that P.W. 1 had left the house of accused and has been living with her parents, that there is a government hospital at Telasanga and a hospital at Athani is at a distance of 18 kms and P,W, 1 has been living for the past five years in her parents’ house. Though there are some minor discrepancies as regard to going to the hospital at Athani but they are not material to the prosecution case, There is no dispute as regard to the place of incident, P.W. I in her complaint as well as in her statement has stated that the incident took place in her parents’ house and there is consistency in her statement 12 0 made before the police as well as in the evidence with regard to dispute between herself and the accused. Accused frequently used to come to her house calling her to join him and she has refused. Evidence also discloses that on the date of the incident, they fought for half an hour. She tried to prevent the accused from assaulting her and sustained injuries. The evidence of P.W. 1 shows that the incident took place at 2.00 p.m., she reached the hospital at Aigali at 4.30 p.m. and Doctor has examined her at 4.30 p.m. on the same day. Merely because the other witnesses have not supported the case of the prosecution, when the evidence of the injured- complainant is credible and reliable, it cannot be disbelieved. The injuries are inflicted on the body of the injured-P.W. 1 has been stated by P.W.20-Doctor who examined the injured. Complaint is registered within one and half hour of incident. There is no reason to doubt the evidence of P.W. 1 as she is injured and there is no reason to falsely implicate the accused. It is not in dispute that .the complainant-P.W. 1 has suffered four injuries. Her evidence as to the injuries is 13 0 supported by the evidence of PW2O the Doctor and the wound certificate ExP. 14. Place of incident is also not in dispute. There is no delay in filing the complaint and also reaching the hospital. In the light of this evidence and there being no reason to doubt the credibility of evidence of PW. I and there being no reason to falsely implicate the accused, just because the other witnesses have not supported the case of the prosecution, that does not mean that the evidence of injured should be disbelieved. We are of the opinion that the evidence of PW. 1 is acceptable and reliable. 12. The trial court has disbelieved the statement of RW. I on the ground that the other witnesses viz, RWs2,3,1 I and 13 whose names are referred in the complaint and who are eye witnesses have not supported the case of the prosecution. The Trial Court has also observed that as per the complaint ExPl. at the time of incident, PW. I was in the house along with her parents Mallavva and others Whereas, PW. 1 in her evidence has admitted that she was sleeping alone. On this $ ‘4 observation, trial Court has disbelieved the evidence of P.W. 1 as it is not supported by the evidence of P.Ws.2, 3, 11 and 13. 13. No doubt, in the complaint P.W. 1 has stated that P.Ws. 2, 3, 11, 13 and others were also present. The discrepancy between her statement before police and her evidence does not goes to the root of the prosecution case. When the accused assaulted she came out. The persons referred above took her to the hospital. But it is stated that they were present when she came out of the house and they took her to the hospital. However, evidence of P.W. 1 has consistency as regard to accused coming to the house of the complainant and inflicting injuries which is supported by wound certificates Ex.P.19 and Ex.P.14. Ex.P.19 shows fracture of 6th rib out axifler lime (left side). The injuries mentioned in Ex.P.1 have been stated by P.W.1 in hr complaint and in her evidence. When there is injured eye witness and injuries were examined by Doctor within one and half hours of the incident, there must be strong reason to disbelieve the injured witness. 0 ‘5 Except suggesting that there was dispute between P.W. 1 and the accused and accused was insisting P.W. 1 to join him and she was refusing and she was living with her parents, no other material suggestion is made in the cross-examination. There is suggestion to P.W.20-Doctor that such injuries are possible if a person falls on a sharp object. Even if Doctor’s evidence is accepted, at the most one injury may be caused. But as per Ex.P. 14 and evidence of P.W.20, four injuries are found on the body of P.W. 1 at different parts. The argument of learned counsel for the accused that there is possibility of P.W. 1 falling on sharp object and sustaining injuries, cannot be accepted. When there is consistent evidence of P.W. 1 corroborated with the medical evidence of Doctors-P.W.20 and P.W.22, Ex.P. 14 and Ex.P. 19-wound certificates and x ray report, it proves that P.W. 1 sustained injuries. There is no suggestion that accused had not gone to the house of P.W. 1. P.W. 1 has stated that eight days prior to the incident, accused came and took up quarrel and so also on the date of incident. In the quarrel, P.W. 1 sustained injuries. 16 Considering these evidence, we find that the trial court committed error in not believing the evidence of injured witness P.W, 1 and also committed an error by acquitting the accused only on the ground that there is no consistency in the statement of the complainant and her evidence as regard to the presence of RWs, 2,3,11 and 13. As far as presence of these witnesses is concerned, even in evidence she has stated that they came and took her to the hospital. Thus, we do not find any reasons to disbelieve the evidence of PW. 1. 14. Further, from the averments made in the complaint as well as evidence of PW. 1, it shows that the marriage between PW. 1 and the accused was held 18 years prior and they have three children and all the three children are living with the accused. It also shows that accused was repeatedly asking PW. I to joint him Evidence of P.W. I also shows that quarrel took place for half an hour In the complaint also PW. I has stated that eight days prior to the incident, accused had came to her house asking her to join him and she had refused.rn4 17 Considering these circumstances, we fmd that the accused husband of P.W. I was repeatedily requesting P.W. 1 to join him, ma be for the reason that he has got groin up children staying with him and on the date of the incident also as per the evidence of P.W. 1, quarrel took place for half an hour. It appears that there was altercation between accused and P.W. I and in a provocation accused appears to have caused the injuries. In grave and sudden provocation for the refusal of P.W. 1 to join him inspite of his repeated request, accused appears to have caused the injuries. No doubt, the injuries are grievous in nature. However, there was no intention for the accused to cause the grievous injury or to take away the life of P.W. 1. Having lived for 14 years together and thereafter quarrel has started after having three grown up children Accused must have come to the house of P.W. 1 asking her to join him and it is also dear that P.W. 1 had joined him on the advise of elders and thereafter she had left the housL of thc accused about 1 months prior to incident These circumstances show tiat ‘icc iscd r gravc ant udden 0 18 provocation has caused the injuries and it is not with an intention to cause grievous hurt or to take away the life of RW1. 15. In these circumstances, though the accused has caused injuries, there was no intention. Hence, we find that accused having caused injuries in a grave and sudden provocation is guilty of an offence punishable under Section 335 of IPC. 16. The Trial Court has totally discarded the evidence of P.W. 1 and has acquitted the accused only on the ground that there is contradiction in the statement of PW. 1 before the police and in her evidence, ignoring that she is injured witness. Giving importance to the witness who have not supported the ease of the prosecution, in our opinion when the evidence of injured witness is clear, there is no reason for the trial court to disbelieve the said evidence and acquit the accused. i1ir 19 17. In these circumstances, we find that the judgment of acquittal passed by the trial court is to be set aside and in the circumstances of the case, accused is liable to be convicted for offence punishable under section 335 of IPC. We have heard the learned Addl. SPP and Sri. Santosh B. Malagoudar, learned counsel for the accused regarding the sentence. Considering the circumstances and evidence and relationship between the parties, the accused is convicted and sentenced for the offence punishable under Section 335 of LPC. with 5,1 for 3 months with fine of2,OOO/ in default to undergo further sentence of SI for one month, The detention during the course of trial may be given set of under Section 428 Cr.P,C. Sal JUDGE mkc