Sami vs State of Karnataka

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the offence punishable under Section 332 IPC on a trial held by the Addl. District and Sessions Judge, Mysore.

The facts reveal that on 21.01.2008, P.W. 2-Ayub Ahmed and P.W. 3-Krishna Murthy were on patrolling duty and at about 7.30 a.m., when they came near the main road junction, they found the appellant herein and he was threatening the public and harassing them, they questioned him, but despite the fact that they were on duty as police constables, they told him that they would register a complaint against him. He threatened them stating that they would register the case only if they are alive, saying so, he took out the razor from his pocket and threatened to cause injuries on the neck of P.W. 2. P.W. 2 escaped the blow and at that time, he sustained injury to his left thumb. When again a blow was given, his uniform was torn, and the name plate was broken. P.W. 3 intervened, but the appellant threatened him also and made an attempt to assault with the razor, he sustained injuries on the right wrist and at three other places. He dragged Krishna Murthy to the ground and in turn, he sustained injury near left eye and injuries due to the use of razor at other places. His helmet was damaged, the uniform was torn.

The public came for the help of police constables and it is thereafter that P.W. 2 approached the police station and submitted the complaint (Ex. P2), which came to be registered by P.W. 6 in Cr. No. 10/2008 for the offence under Sections 332, 307 IPC and FIR (Ex. P6) was sent to the Magistrate. In the course of investigation, statement of the witnesses were recorded, injury certificate (Exs. P7 and P8) were secured. The clothes of the injured were seized. MO1 (razor) was also seized. The seized articles were sent to the opinion of expert and the report (Exs. P9 and 10) were secured. On completion of investigation, chargesheet was laid against the appellant for the charge under Sections 332 and 307 IPC.

During the trial, the prosecution examined P.Ws. 1 to 8 and got marked the documents Exs. P1 to P11 and MOs. 1 to 5. The Trial Court heard the counsel and on appreciation of the evidence on record, acquitted him for the charge under Section 307 IPC and convicted for the charge under Section 332 IPC. He was ordered to undergo simple imprisonment for 2 years and to pay fine of Rs. 2,000/- with default sentences. Aggrieved by the conviction and sentence, the present appeal is filed.

Counsel for the appellant is absent. The Apex Court in the judgment reported Surya Baksh Singh Vs. State of Uttar Pradesh, has held that when the accused is not in custody and on the date of hearing, if the counsel is absent, the Court can hear the Government Pleader, look into the records and dispose of the case on merits.

Anyhow, the matter is of the year 2010. There is no representation. Therefore, the matter is taken up for disposal.

I have heard learned High Court Government Pleader for the respondent-state.

It is the contention of appellant in the appeal memo that the evidence is not consistent, cogent and acceptable and that a false case has been filed against the appellant for the said charges. It is also contended that P.W. 1 the attesting witness to the spot mahazar (Ex. P1) has not supported the case and that there is a delay in lodging the FIR. A contention is also taken up that Ex. P11 is tampered and there is over writing and it cannot be relied upon. Further, it is contended that evidence of P.Ws. 2 and 3 are contradictory to each other and there is no evidence to support the interested version of said witnesses. It is also contended that independent witness are not examined.

Learned High Court Government Pleader supports the judgment and order of the conviction and submits that P.Ws. 2 and 3 are the injured witnesses. Their evidence is corroborated by the medical evidence and there are no reasons to call for interference in the impugned judgment and order.

On scrutiny of the evidence led by the prosecution, it reveals that P.W. 7 is the doctor who examined P.Ws. 2 and 3 and issued the injury certificate (Exs. P7 and P8). Ex. P7 is that of Krishna Murthy. He was examined on the date of incident at 9.40 a.m. i.e., within two hours of the incident. It is also stated about the history for injuries suffered and it is consistent with the case of prosecution. He had suffered as many as 4 injuries i.e., superficial incised wound over forehead and dorsum of right hand 2 to 3 numbers each 3 x 1/4 inches bleeding present, incised wound over left leg knee 3 x 1/4 inches bleeding present, contused wound over dorsum of left hand and contused wound over face left side 1/4 x 1/4 inches swollen.

P.W. 7 has also examined P.W. 2-Ayub Ahmed, the police constable and issued the injury certificate (Ex. P8). He suffered two injuries i.e., incised wound over right thigh 3 x 1/4 inches bleeding and contused wound over left hand swollen. The doctor states that razor (MO1) could cause the injuries aforesaid. So perusal of the evidence of P.W. 7 would clearly indicate that P.Ws. 2 and 3 had sustained injuries aforesaid. Therefore, the evidence of P.W. 7 and the injury certificates (Exs. P7 and P8) supports the version of prosecution.

So far as the incident is concerned, P.Ws. 2 and 3 are the witnesses who support the case of prosecution. They were police constables on patrolling duty on the date of incident. When they found that the appellant was demanding money from the people and was harassing them, they questioned him, the appellant gave threat to the police constables and he took out the razor and caused injuries to both P.Ws. 2 and 3. Both these witnesses consistently state in their evidence having sustained injuries at the hands of appellant with the weapon razor which was taken out from his pant pocket. Though, a contention is there in the appeal memo that there is inconsistency, the scrutiny of evidence of P.Ws. 2 and 3 does not reveal any such inconsistency.

P.Ws. 2 and 3 are the injured witnesses. Generally, the injured does not implicate the innocent and does not leave the person who has really committed the crime. On this principle, if the evidence of P.Ws. 2 and 3 is looked into, I do not find any grounds to reject their version. There is consistent and cogent evidence of these two witnesses which have been supported by the medical evidence and therefore, there is no need for the investigating officer to place on record the evidence of independent witnesses.

It is P.W. 4 who took the injured to the hospital for the purpose of treatment. He also speaks about the injured having sustained injuries while they were on duty in the morning and having taken them in the vehicle for the purpose of medical examination. The evidence of P.W. 4 also supports the version of prosecution. Though P.W. 5 has not supported the case of prosecution so far as seizure mahazars (Exs. P3 and P4), it is relevant to note that he was called to the police station, he saw P.Ws. 2 and 3 both having suffered injuries and they having caused an act of assault on a boy in the morning on that day. Therefore, the evidence of P.W. 5 also come to the help of prosecution and corroborates the version of P.Ws. 2 and 3.

P.W. 1, the attesting witness for the spot mahazar (Ex. P1) supports the version of prosecution as regards drawing of mahazar (Ex. P1). P.W. 6 is the PSI who received the complaint of P.W. 2 and register the same in Cr. No. 10/2008 for the offence under Sections 332 and 307 IPC and sent FIR (Ex. P6) to the Magistrate. It is just 2 1/2 hours of the incident that the complaint was lodged and the FIR was sent to the Magistrate. The delay that occurred in lodging the FIR is not abnormal. It was the first duty of P.Ws. 2 and 3 to take treatment in the hospital and then lodge a complaint in the police. It appears that the delay is not misused by the prosecution to falsely implicate the appellant.

P.W. 8 is the police officer who held the investigation, recorded the statement of witnesses, sent the injured to hospital, collected relevant documents and thereafter, filed chargesheet against the accused. The scrutiny of evidence placed on record by the prosecution would clearly show that there is consistent, cogent and acceptable evidence for the offence under Section 332 IPC. No grounds are made out by the appellant to warrant interference in the impugned judgment and order.

Even as regards the sentence is concerned, it is relevant to note that accused was demanding money from the public and he was harassing the people and he threatened the police officials who came to discharge their duty. The offence as such is serious. Therefore, the Trial Court was justified in awarding imprisonment for 2 years and to pay fine. Looking to the material placed on record, from whatever angle it is seen, I am of the opinion that the Trial Court was justified in convicting the appellant for the charge under Section 332 IPC. There is no merit in this appeal.

Therefore, the appeal is dismissed. Conviction of the appellant for the charge under Section 332 IPC and sentence therein are affirmed.

The Trial Court is directed to secure the presence of appellant to undergo the sentence.