Manu vs State

A.N. Venugopal Gowda, J.—1. The appellant was tried along with his parents, for the offences punishable under Ss. 341, 324, 307 read with S. 34 of IPC. The Trial Judge convicted the appellant for the offence under S. 324 IPC and ordered his release on probation of good conduct, on execution of a self bond and furnishing one surety. Feeling aggrieved, this appeal was filed.

PW-1 is the complainant and Ex. P1 is the complaint. Case was registered in the respondent Police Station, in Crime No. 403/2006, for the aforesaid offences. PW-9 conducted the investigation and filed the charge-sheet. After compliance under S. 209 Cr.P.C., the case was committed to the Court of Sessions and was registered as S.C. No. 75/2008. The accused appeared and pleaded ''not guilty'' and claimed trial. In support of the case of prosecution, PWs 1 to 10 were examined and Exs. P1 to P13 and M.Os. 1 to 5 were marked. Statement of the accused under S. 313 Cr.P.C. was recorded and the accused denied the incriminating circumstances. Accused No. 1 got himself examined as D.W. -1 and marked Exs. D1 to D13. Considering the rival contentions and on perusal of the record, the Judgment dated 30.11.2009 was passed acquitting all the accused of the charges for the offences punishable under Ss. 341 and 307 read with S. 34 IPC. Accused Nos. 1 and 2 were acquitted of the offences punishable under S. 324 read with S. 34 IPC. However, the third accused i.e., the appellant was convicted for the offences punishable under S. 324 IPC.

Sri A.H. Bhagavan, learned advocate, firstly contended that the presence of the accused No. 3 at the scene of occurrence has not been established. Secondly, the case of the prosecution being that the appellant assaulted PWs 1 and 3 with chopper and the deposition of PW-10 and Exs. P4 & P5 having shown lacerated wound and not a deep incised wound, the finding of guilt recorded by the Trial Judge is perverse. Thirdly, PW-2, brother of PW-1 and son of PW-3, having stated, that in the scuffle, they were pushing each other, and PW-10, who issued Exs. P4 to P6 having stated that the injuries are Macerated wounds and simple injuries'' and that the same could be caused, if they fall on a hard surface of the ground or when came in contact with the object like stone, the appreciation of the evidence by the Trial Judge is perverse. Learned advocate submitted that the oral evidence being totally inconsistent with the medical evidence and the prosecution case being doubtful, the appellant is entitled to the benefit of doubt. He contended that evidence of PW-10 and Exs. P4 and P5 does not support the case of the presence of accused No. 3 and hence, his presence at the scene of occurrence and use of M.O. 1 for inflicting of the injuries on PW-1 and PW-3 is completely ruled out. Fourthly, PWs 1, 2, 3, 4, 6 and 8 are the sons, daughter-in-law and father and being interested witnesses, their evidence cannot be relied upon. Fifthly, evidence of PW-6, who came after the incident and when the injured was shifted to the hospital could not have been relied upon. PW-7 being a person working in the land of PW-3 and as such an interested witness, his evidence cannot be relied upon. PW-5 being a mahazar witness, has no relevance to prove the incident i.e., the accused No. 3 having assaulted PW-1 and PW-3 with M.O. 1. Learned counsel submitted that the impugned Judgment being perverse and illegal, is liable to be set aside.

Sri B. Visweswariah, learned HCGP, on the other hand submitted that there being correct appreciation of the evidence by the learned Trial Judge, the finding of guilt recorded not suffering from infirmity, is not liable to be interfered with. Learned counsel made submissions in support of the finding recorded against the accused No. 3 by the learned Trial Judge.

The prosecution has not assailed the impugned Judgment, acquitting all the accused of the charge for the offences under Ss. 341 read with S. 34 IPC, S. 307 read with S. 34 IPC and also the acquittal of accused Nos. 1 and 2 in respect of the charge for the offence under S. 324 read with S. 34 of IPC. Hence, the consideration is confined to the finding recorded in the impugned Judgment, in respect of the charge for the offence punishable under S. 324 IPC, against accused No. 3 i.e., the appellant.

Perused the record for the purpose of appreciating the rival contentions. The point for consideration is, whether the finding of guilt recorded against accused No. 3 is sustainable?

Ex. P1 is the complaint lodged by PW-1. It was stated therein, that accused No. 3 assaulted PW-3 on his head with a sickle (M.O. 1) and that accused No. 1 assaulted P.W. 1 with a reaper (M.O. 2) and both sustained injuries. PW-1 and PW-3 were treated by PW-10. Ex. P4 is the wound certificate pertaining to PW-1. It shows ''one lacerated wound on the frontal region of the head measuring 4x2 cms. and bleeding through gum'', which is opined to be "simple in nature". The wound certificate of PW-3, marked as Ex. P5, shows Macerated wound over head frontal region measuring 4x2 cms. and bleeding through ear'', which PW-10 has opined as "simple in nature".

PWs 1 to 4 and PWs 6 to 8 have stated that PWs 1 and 3 were assaulted by accused No. 3 with a chopper, marked as M.O. 1. PW-10, who treated PWs 1 to 3 and issued the wound certificates, Exs. P4 to P6, has admitted as follows:

"It is true to suggest that MO. 1 is a sharp cutting edged weapon. It is true to suggest that the weapon like MO. 1 with its cutting edge causes incised wound or slashed wound. It is true to suggest that in Ex. p.4 and 5 no such incised or slashed wounds are found. It is true to suggest that if a person is assaulted by the tip of MO. 1 that causes a deep wound. It is true to suggest that in Ex. p.5, such deep wound is not mentioned. It is true to suggest that MO. 1 and 2 were not sent to me for my opinion regarding the injuries with reference to those weapons. The witness is given a scale and asked to mention the size of tip of the MO. 1. (On measuring the tip of MO. 1 the witness says that is 1cm wide). It is true to suggest that in Ex. P.5 none of the injury''s size is one cm.

In case of bite by human being, there will be teeth mark at the injury. It is true to suggest that no such bite marks were seen on Mallesha. It is true to suggest that the injuries mentioned in Ex. p.4 to 6 could be caused if a person falls on the hard surface of the ground in a scuffle and comes in contact with the object like stones."

From the above, it is clear that there was no incised or slashed wound found on P.W. 1 or PW3.

Accused No. 1 in this case, having lodged a complaint in respect of the very same incident, against PWs 1 to 4 and wife of PW4 - Channamma, a case in Crime No. 404/2006 was registered in the Mandya Rural Police Station. After investigation, charge-sheet was filed against the PWs. 1 to 4 and said Channamma for the offences punishable under Ss. 143, 148, 324, 326, 307 read with S. 149 IPC. The case having been committed after compliance under S. 209 of Cr.P.C., was registered as S.C. No. 46/2008 in the Sessions Court at Mandya. After trial, by a separate Judgment dated 30.11.2009, PW-1 in this case, was found to be the aggressor and was convicted for the offences punishable under S. 324 IPC i.e., for having caused injury to the father of the appellant herein, arraigned as accused No. 1, in this case.

From the finding recorded in S.C. 46/2008, vide Judgment dated 30.11.2009, which has attained finality, it is clear that the father of the appellant, arraigned in this case as accused No. 1, was assaulted by PW-1 in the present case and the injuries found were; (1) lacerated injuries to right, middle and ring finger, (2) incised wound 3 cms. over the left parietal area of the head and the medical evidence i.e. that of PW-3 and Ex. P2 therein, reveal that there was fracture of middle phalanx finger and distal phalanx ring finger. Thus, it is clear that PW-1 was found to be aggressor and accused No. 1 i.e., father of the appellant herein, was found to be the victim, with injuries, noticed supra. The blood stains found on M.Os. 1 to 5, may be that of accused No. 1, since, Exs. P12 and P13 marked through the I.O. have not been proved by examination of the authors thereof.

The main plank of argument of Sri A.H. Bhagavan, learned advocate is that, since there is no sickle injury found on PWs 1 & 3, the entire prosecution story must fall to the ground.

While appreciating the variance between medical evidence and the ocular evidence in a case, oral evidence of eye witness should get primacy. However, when the evidence of eye witness is totally inconsistent with the evidence given by the doctor, then the evidence is required to be appreciated in a different perspective. It is well settled principle of law, that when medical evidence specifically rules out the injury claimed to have been inflicted as per the eye witnesses'' version, then the Court can draw adverse inference, that the prosecution version is not trustworthy.

In the case of MANI RAM v. STATE OF U.P., , 1994 SCC (Cri) 1242, PW-2, the sole eye witness therein, stated that the two appellants chased the deceased and both of them fired at him from the kattas, while he was running. However, according to post-mortem report, injury 7, which was caused by a fire arm was situated on the right shoulder and front of upper arm and outer part. There was no injury either on the back or anywhere behind the shoulder. Since the prosecution case was, that the deceased was fired at, while he was running, fire arm injuries should have been there on his back. In view of the discrepancy, Apex Court, by observing that where the direct evidence is not supported by expert evidence, then the evidence is wanting in the most material part of the prosecution case and therefore, it was held that it would be difficult to convict the accused on the basis of such evidence.

In the present case, on the face of the evidence led by the prosecution, the medical evidence of the injury sustained by P.W. 1 and PW3 assumes significant importance. All the eye-witnesses have categorically stated that P.W. 1 and PW3 were assaulted by the use of sickle, marked as M.O. 1, whereas the medical evidence given by Dr. G. Purushotham/PW-10, specifically indicates that there was no incised or slashed wound found on PW-1 and PW-3 and that the ''injuries are simple in nature''. Had there been use of the sickle, marked as M.O. 1, there would have certainly been an incised or slashed wound inflicted on either PW-1 and PW-3. Thus, evidence of PW-10 having assumed importance, the learned Trial Judge has failed to appreciate the case in the correct perspective. PW-1 having been found to be the aggressor in S.C. No. 46/2008, he having inflicted grievous injuries - incised wound on accused No. 1 in this case, the finding of guilt recorded against the accused No. 3, having no credible evidentiary support, the finding recorded against the accused No. 3 in the impugned judgment being perverse, is liable to be set aside.

In the scuffle, as admitted by PW-2, there was pushing of each other and hence, the injuries shown in Exs. P4 & P5 might have been sustained due to a fall on a hard surface of the ground. The blood stains found on the shirts, marked as M.Os. 3 to 5, may be the one which oozed out from the grievous injury inflicted on accused No. 1, by PW-1, in the present case, as he was found guilty by the learned Trial Judge, in S.C. No. 46/2008.

In the light of the fact that there are civil cases between the parties and the eye witnesses examined are the sons and daughter-in-law of PW-3 and are interested witnesses, the prosecution case is full of doubts and as such, the accused No. 3 is entitled to the benefit of doubt.

In the result, the appeal is allowed and the impugned Judgment of conviction and Order of sentence is set aside. The appellant - accused No. 3 is acquitted of the charge for the offence punishable under S. 324 IPC.