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Judgment
Subhash B. Adi
Appeal by the accused nos. 1, 3 and 4 against the judgment of conviction in S.C. No. 365/2001, dated 31.12.2005 on the file of Fast Track Court - II, Kolar.
Accused nos. 1 to 6 were charge-sheeted and tried for offences punishable under Sections - 143, 447, 307 read with 149 of I.P.C. The Trial Court acquitted accused nos. 2, 5 and 6 and convicted accused nos. 1, 3 and 4 for offences punishable under Sections - 447, 307 read with Section - 34 of I.P.C. It is against the judgment of conviction, accused nos. 1, 3 and 4 are before this Court.
The case of the prosecution as unfolded before the Trial Court was that the accused nos. 1, 3 and 4 are sons of accused no. 2, Accused nos. 5 and 6 are two wives of accused no. 2. PW-1, PW-2 and PW-4 are cousin brothers. PW-3 is their relative. There was a dispute between the accused and PW-1 with regard to sharing of land and boundary.
On 05.09.2000, while PW-1 was forming a canal for water flow to his land, at that time accused nos. 1 to 6 all at once came to the spot and picked up a quarrel alleging that the land where the canal was formed by the PW-1, belonged to the accused. When PW-1 tried to convince the accused that he is not encroaching on the land of the accused, at that time on account of previous enimity, accused no. 4 tried to assault PW-1 with a chopper on his head. However, PW-1 escaped the said blow, PW-1 raised his right hand, as a result, his right hand was chopped of severing from the elbow and sustained grievous injuries. Accused nos. 2 and 1 also assaulted with club. Accused nos. 3, 4, 5 and 6 assaulted with hand. At that time, PW-2 and PW-3 came to the spot and pacified the quarrel and took FW-1 to SNR Hospital, Kolar.
CW-12, ASI attached to the Kolar Town Police got the MLC at Exhibit - P4 at about 6.47 p.m. He went to SRN Hospital and recorded the statement of the injured PW-1 and accordingly he registered the ease in crime no. 171/2000, for offences punishable under Sections 143, 147, 148, 447, 323, 324 and 307 read with 149 of the IPC. An information was also sent to the Batlahalli police station as the incident had occurred within the jurisdiction of Batlahalli police station. Batlahalli police station registered the case in Crime No. 13/2000 and at 2.30 p.m. on 06.09.2000 and the FIR was sent as per Exhibit P9, which was received by the Jurisdictional Magistrate, Chintamani at 8.00 p.m. on 06.09.2000. Further, PW-8 investigated the matter and filed the charge-sheet.
On committal, all the accused were brought before the learned Sessions Judge. In their presence, the learned Sessions Judge framed the following charges:
That on 05.10.2000 at about 2.00 p.m., near the land of CW-1, G.A. Shivashankara Reddy, Gownicheruvapalli, you A1 to A6, were members of unlawful assembly with common object to murder CW-1 and thereby committed an; offence punishable u/s 143 IPC.
On said date, time and place, in prosecution of common objection of the said assembly you, trespassed into the land of CW-1 and there by committed an offence punishable u/s 447 read with Section 149 IPC.
On the said date, time and place, in prosecution of said common objection of assembly you, A4 cut off the right hand of CW-1 with chopper, and also A1 of A6 assaulted CW-1 with an intention to murder and that you caused hurt to CW-1 by the said Act and there by committed an offence punishable u/s 307 read with Section 149 IPC.
All accused pleaded not guilty and claimed to be tried. The prosecution to prove the charges examined PW-1 to PW-12, marked Exhibit - P1 to P13 and produced MO1 to M03, namely, the chopper and two clubs. On defense side three witnesses were examined as DW-1 to DW3 and Exhibit D1 to D10 were marked.
The Trial Court relying on the evidence of PW-1. the injured, PW-2, PW3 and PW4 stated to be the eye-witnesses, PW-10. the Doctor, who examined the injured, held that the evidence of PW1 to PW-4 is credible and reliable as PW-1 being injured, he has stated the overt-act against accused nos. 1, 3 and 4 and further stated that accused no. 4 assaulted with the chopper, which resulted in severing of the right hand from the elbow. Relying on the averments in the complaint wherein PW-1 has stated that the accused intended to kill him and he escaped the blow and as a result he sustained grievous injury to his right hand the Trial Court convicted accused nos. 1, 3 and 4 for offences punishable under Sections - 447, 307 read with Section 34 of IPC, as the accused had a common intention to commit murder of PW-1. It is against the said conviction accused nos. 1, 3 and 4 are in appeal.
Heard the learned counsel Shri. Shankarappa for accused nos. 1, 3 and 4 and the learned State Public Prosector, Shri. Bhavahi Singh, for the Respondent: - State.
Shri. Shahkarappa the learned counsel referred to Exhibit P1, the statement of the injured and pointed out that PW-1 in his complaint has alleged that accused nos. 4 assaulted with a chopper. Accused nos. 4 and 3 with clubs and other accused with the hand According to PW-1, the incident had occurred at 2.00 p.m. on 06.09.2000, he was brought to SNR Hospital at 6.00 p.m. on 06.09.2000. Even according to CW-12. Who recorded the statement of PW-1, he had reached the hospital at 6.25 p.m. and on the basis of the MLC received by him, he recorded statement on 05.09.2000 itself. Whereas, the FIR, Exhibit - P-13 has reached the learned Magistrate at 3.00 p.m. on 06.09.2000 i.e., nearly after a delay of 18 hours after registering the FIR He submitted that PW-4 in his evidence has admitted that he accompanied PW-1 to the hospital and he is stated to be the eye-witness, whereas his statement was not recorded on the same day. Neither PW-12 nor PW-8 have explained the reason for the delay of 18 hours in sending the FIR. This delay creates serious doubt as to the correctness of the statement of PW-1, to support the same he also relied on Exhibit - P2, the further statement of PW-2 recorded by Investigating Officer. Wherein PW-1 in his further statement recorded on 19.12.2000 alleges that accused no. 1 assaulted on his right hand with a chopper. Since he was frightened he could not mention the name of accused no. 1 assaulting with the chopper.
Learned counsel relying on this he submitted that the genesis of the offences has not been disclosed by the police and the Very genesis has been suppressed as the complaint and the further statement of PW-1 are mutually contradicting to each other and it creates serious doubt as regard to the correctness of the statement of PW-1.
Further, to support his contention the learned counsel submitted that it also corroborates from the evidence of PW-1 recorded on 19.12.2000, that the information was received by the Batlahalli police station on 05.09.2000 at 2.30 p.m., whereas the FIR has reached the learned Magistrate on 06.09.2000 at 8.00 p.m. though the distance between Chintamani and Batlahalli is 13 kms. To support the very same contention the learned counsel also relied on evidence of FW-2 and contended that PW-2 in his evidence has stated that before they went to Kolar Hospital, they had informed the Batlahalli police station, however, no case is registered, no statement is recorded on the said day, however, the Batlahalli police has not explained as to what happened to the said information.
Secondly, the learned counsel for the accused submitted that the evidence of PW-2 and PW-3 is nothing but an improvement from the statement which they made before the police u/s - 161 of the Cr.P.C.
He further submitted that the presence of PW-2 and PW-3 is doubtful. To support the same he relied on the evidence of PW-2 in the cross-examination before the Investigating Officer and submitted that when they went to the spot, accused no. 4 had a chopper and accused nos. 1 and 3 with the clubs had assaulted PW-1. Accused no. 1 assaulted with the club above the left eye and the accused no. 3 assaulted with the club on left chest and accused no. 4 assaulted with a chopper on the right shoulder and the accused no. 4 handed over the chopper to accused no. 1. Learned counsel referred to evidence of PW-8, the Investigating Officer who in his cross-examination has stated that PW-2 has not stated that the accused no. 1 assaulted above the left eye with the club, accused no. 3 assaulted on the left chest and accused no. 4 assaulted with the chopper on the right shoulder PW-8 has also admitted that PW-3 has not stated before him that the accused left the clubs and took only the chopper while leaving the place. He submitted that the Investigating Officer has stated that he has stated that PW-2, PW-3 have not stated that they have seen the accused assaulting PW-1.
The counsel further referred to the statement u/s 161 of Cr.P.C of PW-2 and pointed out that PW-2 except making general statement, he was not present on the spot when the incident took place. PW-2 in the examination-in-chief and cross-examination is nothing but improvement. Similarly, he relied on evidence of PW-3 and submitted that PW-3 had also stated that he has given statement before the police that the accused nos. 1 and 2 assaulted with the club and accused no. 4 assaulted with chopper. Accused no. 1 assaulted over the left eye, accused no. 4 handed over the chopped in the hands of accused no. 1. However, PW-8 in the cross-examination has admitted that the PW-3 has not stated that accused nos. 1 and 2 assaulted with club and accused no. 4 assaulted with the chopper on the left hand and right shoulder. He has also not stated that accused no. 1 handed over the chopper to the accused no. 4. Relying on the evidence of PW-2, 3 and 8, he submitted that in the evidence PW-2 and PW-3 have made improvement and their presence at the time of the incident is doubtful.
The learned counsel submitted that presence of PW-2 and 3 is doubtful, as PW-1 in his cross-examination, has stated that after the incident PW-2 and 3 came to the spot. However, in the cross-examination PW-1 has admitted that, when the incident took place no villagers had come. If this evidence is appreciated, the presence of PW-2 and 3 is doubtful.
Learned Counsel for the appellants relying oh Ex.P1 -statement of PW-1 recorded by CW-12 - Police submitted that though PW-1 in his statement alleges that accused No 4 assaulted with the chopper, however, in his further statement recorded on 19.12.2000 as per Ex.P2, he has admitted that the accused No. 1 has assaulted, not accused No. 4. He also submitted that, there is inordinate delay in filing the complaint. The evidence of PW-1. - injured does not show as to whether accused No. 1 assaulted or accused No. 4 assaulted and if his evidence is not acceptable, even if the evidence of PW-4 is considered, it does hot prove that the accused No. 4 assaulted PW-1 and he submitted that the evidence of PWs-1 to 4, who are the main witnesses viz., injured and eyewitnesses, their evidence is not credible and reliable, as there is improvement and also contradictions and submitted that, the trial court without appreciating the evidence in its proper perspective has erroneously given a finding that the evidence of PWs-1 to 4 supports the case of the prosecution and further submitted that, the judgment of the trial court requires to be reversed.
On the other hand, Sri. Bhavani Singh learned State Public Prosecutor submitted that, the discrepancies pointed out by the learned Counsel for the accused are not material discrepancies, they do not go to the root of the prosecution case. They are improvements, but these improvements even if it is ignored, the evidence of PWs-2, 3 and 4 is credible and reliable. Both PWs-2 and 3 have supported the case of the prosecution that they went to the scene of occurrence and have seen the incident. PW-4 not only has seen the incident, but has also accompanied the injured to the hospital Hence when there are injured witness coupled with the eyewitnesses, the prosecution has proved the charge beyond reasonable doubt as against accused Nos. 1, 3 and 4. He supported the findings of the trial court.
In the light of the above submissions, the point that arises for consideration is:
Whether the conviction of accused Nos. 1, 3 and 4 calls for interference?
According to the prosecution case, PW-1 is an injured witness. PW-1 has given a statement before CW-12. In the statement, PW-1 at the inception itself has alleged that, accused No. 4 - Srinivasa Reddy assaulted with chopper on the right shoulder. PW-10 - Doctor has stated that PW-1 had suffered four injuries. Amongst four injuries, the right hand was chopped off from almost elbow joint and other lacerated injuries. The statement of PW-1 in Ex.P1 and the evidence of PW-10 -Doctor show that PW-1 had suffered injuries. In the evidence PW-1 has also stated that, accused Nos. 1 and 3 assaulted with the club i.e., accused No. 1 assaulted with the club on little above the left eye, accused No. 2 on the left chest and accused No. 4 assaulted with the chopper. No doubt, in the cross-examination, he has stated that, accused No. 4 handed over the chopper to accused No. 1
To doubt the statement of PW-1 and his evidence before the court learned, Counsel for the accused had relied on the further statement of accused No. 1 as per Ex.P2. No doubt, in Ex.P2, there is a contradiction as to the overt act on PW-1. In the complaint, he has stated that, it is accused No. 4 and in the further statement, it is stated as accused No. 1, however, in his evidence, he is consistent as far as the overt act by chopper by accused No. 4.
PW-2 though has stated that the accused Nos. 1 and 3 assaulted with club and accused No. 4 assaulted with the chopper, but his presence is doubtful, as in the cross-examination, he has stated that, he gave the statement before the Police, whereas, PW-8 in his cross-examination has stated that, PWs-2 and 3 did not give any statement as to the overt acts by accused Nos. 1, 3 and 4. Even in his statement recorded u/s 161 of the Code of Criminal Procedure, PW-2 does not state that he was present at the time of incident. This is corroborated by the evidence of FW-1. PW-1 in his evidence has stated that, when the accused were present, no one came from the village, only after the accused left the place, the villagers came. Further, he has stated that PWs-2 and 4 did not come to the rescue of PW-1.
However, the presence of PW-4 is stated in the statement given by PW-1 before the Police as per Ex.P1 and in his evidence and also in the cross-examination. This is also evident from the evidence of PW-4, who has stated that, he was present when the accused assaulting and has also stated that he went along with the injured. The incident had occurred at 2 p.m., PWs-1 and 4 have gone to Devaraj Urs Hospital in Kolar and from there they went to S.N.R. Hospital, Kolar at 6.00 p.m. PW-1''s statement was recorded at around 6.25 p.m., though the time is not specifically mentioned, but the information was received by CW-12 at 6.25 p.m. PW-10 - Doctor in his evidence has also stated that, along with PW-1, PW-4 had come. This evidence also shows that PW-4 was not only present at the scene of occurrence, but also accompanied the injured to the hospital. No doubt, his statement is not recorded by the Police, but that lapse on the part of the Police does not vitiate the entire case of the prosecution. As far as presence of PW-4 is concerned, PW-4 categorically has stated that, he had seen the incident and tried to pacify the quarrel. In the cross-examination, even the accused have suggested the presence of PW-4. Hence, there is no reason to doubt the presence of the PW-4.
Learned Counsel for the appellants had submitted that, there is an inordinate delay in sending the FIR, however, it is not in dispute that, the statement of PW-1 was recorded by CW-12 and it is riot in dispute that CW-12 was not available for recording the evidence, as he was dead by that time, but the statement made in Ex.P1 and the evidence of PW-1 corroborates and there is no attempt to improve the case except in the evidence of PWs-2 and 3.
No doubt, there are some minor improvements and the contradictions, but that by itself does not dislodge the credibility of the injured witnesses. If Ex.P1 and the evidence of PWs-1 and 4 is considered, it clinchingly proves that the injured had identified the accused and further. PW-4 has supported the case of the prosecution, as he had seen the incident. When the credibility of the evidence of PW-1 cannot be doubted as he is injured and there is no reason to falsely implicate the accused.
The evidence of PWs-1 to 4 shows that accused Nos. 1 and 3 assaulted with the dub but the corresponding injury No. 2 shows bleeding, but the weapon used does hot suggest that, it could have caused a bleeding injury on the body of PW-1. Even injury No. 3 is scratches and is also bleeding injury. The evidence shows that the accused Nos. 1 and 3 assaulted with club but does not correspond with the injury Nos. 2, 3 and 4. May be, PW-1 has suffered those injuries, but there is doubt as to whether accused Nos. 1 and 3 could have caused such injury by means of club. There is even suggestion that there is possibility that in the scuffle, such injury might have been caused. The evidence of PWs-2 and 3 is not credible, but the evidence of PWs-1 and 4 is credible and reliable, which shows that accused No. 4 has assaulted with chopper and PW-10''s evidence supports the evidence of PWs-1 and 4, which shows that PW-1 had suffered grievous injury on right hand, which resulted in chopping of his hand by means of a chopper, the trial court on proper appreciation of the evidence has rightly found that accused No. 4 has assaulted with the chopper on the right hand of PW-1. However, the findings as regard to accused Nos. 1 and 3 are concerned, it creates serious doubt as to whether they assaulted PW-1 and caused injury Nos. 2 to 4. The corresponding injuries do not suggest that such injuries could have been caused by means of club.
PW-1 though in the statement has stated that the accused tried to assault him with, intention to kill him, accused No. 4 wanted to assault on his head, however, in the evidence, PW-1 nowhere has stated that there was any threat for his life except stating that he assaulted on his hand, it cannot be termed as assault on the vital part of the body and would have resulted in death of PW-1.
In these circumstances, in my opinion, even the assault by accused No. 4 cannot be termed as an attempt to murder. However, accused No. 4 has assaulted with the chopper and the same is resulted in grievous injury of severing of hand front the elbow joint, it certainly proves the offence punishable u/s 326 of IPC. Hence, I find that accused No. 4 has committed an offence punishable u/s 326 of IPC. As far as accused Nos. 1 and 3 are concerned, the evidence is insufficient to hold that they assaulted PW-1 with the club
As far as offence punishable u/s 447 of IPC is concerned, there is absolutely no evidence to prove that accused had trespassed into the land of PW-1 and assaulted as there is a dispute regarding channel & bund and even the scene of occurrence was near the channel. In these circumstances, I find no material to hold that the accused have committed an offence punishable u/s 447 of IPC. In these circumstances, I pass the following;
ORDER
This appeal is partly allowed. The judgment of conviction of accused Nos 1, 3 and 4 for an offence punishable under Sections 447, 307 read with Section 34 of IPC, is hereby set aside, Accused Nos. 1 and 3 are acquitted and accused No. 4 is convicted for an offence punishable u/s 326 of IPC.
Heard the learned Counsel on the sentence.
Learned Counsel for the accused No. 4 submitted that accused No. 4 was 22 years at the time of the incident. Incident had occurred about 11 years back and both accused and PW-1
are close relatives, the dispute was as regard to land and there is no more dispute between the parties. He submitted that, accused No. 4 has got a wife and a child and dependants and there was no serious motive to take away the life of PW-1 and incident occurred in a heat of passion in a sudden quarrel. It is in these circumstances, accused No. 4 could be punished with fine and sentence may be reduced for the term for Which he had already served as under trial prisoner and conviction Sentence.
On the other hand, Sri. Bhavani Singh, learned State Public Prosecutor submitted that, the accused No. 4 has been convicted for an offence punishable u/s 326 of IPC, which is punishable with imprisonment for life or even upto 10 years, as such, reasonable sentence be imposed.
It is not in dispute that the incident had occurred in a village and both the parties are related to each other. It is also not in dispute that at the time of incident, the accused No. 4 was 22 years and now almost 11 years have lapsed and as a subsequent development, the parties are in good terms, however, that by itself is not a mitigating circumstance not to impose any sentence, but at the same time keeping in view of the circumstances and also taking into consideration that the incident had occurred in connection with the land dispute and there was no premeditation to commit the offence, in these circumstances, I find that accused No. 4 could be sentenced for a period of 11/2 years'' simple imprisonment with fine of Rs. 50.000/-, in default, to undergo further S.I. for three months. Out of fine amount of Rs. 50,000/-, Rs. 40,000/- be paid to PW-1 and Rs. 10,000/- be appropriated towards State account.
Accused No. 4 shall, surrender before the trial court to serve the sentence. On failure of the accused No. 4 surrendering before the trial court, the trial court shall take steps to secure the presence of accused No. 4 and commit him to prison for serving the sentence.
Accused is entitled for set-off u/s 428 of Cr.P.C.