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Judgment
A.N. Venugopala Gowda
Petitioners who faced trial for the offences punishable under Ss.341, 323, 324 and 506 read with S.34 of IPC in C.C. No. 333/2005, in the Court of JMFC at Pandavapura, were acquitted by a Judgment/Order dated 30.10.2009. Prosecution filed Crl. A. No. 93/2009 in the Sessions Court at Mandya. Learned Sessions Judge allowed the appeal in part. Order of acquittal for the offences under Ss.341 and 504 IPC was confirmed. However, the order of acquittal in respect of the offences under Ss.323, 324 and 506 IPC was set aside. Accused No. 1 was found guilty of the offence under S.324 and 506 IPC. Accused No. 2 and accused No. 3 were found guilty of the offences under Ss.323 and 506 IPC. Accused No. 1 was sentenced to pay fine of Rs. 5, 000/- for the offence under S.324 IPC., in default, to undergo S.I. for 6 months. Accused No. 1 was further sentenced to pay fine of Rs. 2, 000/- for the offence under S.506 IPC., in default, to undergo S.I. for 3 months. Accused No. 2 and accused No. 3 were sentenced to pay fine of Rs. 1, 000/- for the offence under S.323 IPC., in default, to undergo S.I. for 3 weeks. They were further sentenced to pay fine of Rs. 1, 500/- for the offence under S.506 IPC and in default, to undergo S.I. for 3 months. Out of the fine amount, when realised, Rs. 2, 500/- each was ordered to be paid as compensation to the complainant and his son i.e., PWs 1 and 2. Feeling aggrieved, accused have filed this criminal revision petition. Sri C.R. Gopala Swamy, learned advocate, contended that though the essential ingredients of Ss.323, 324 and 506 IPC has not been established by adducing credible evidence, petitioners have been found guilty and illegally sentenced. Learned counsel submitted that, other than the interested testimony of CWs 1 and 2/PWs 1 and 2 and the police team - PWs 10 and 11, there is no evidence of whatsoever nature on the basis of which the petitioners can be held guilty of the offences under Ss.323, 324 and 506 IPC. He submitted that, PW-2 is the complainant and PW-1 is his son and that they have deposed falsely, on account of the enmity in the Village. He submitted that alleged eye-witnesses PWs 3, 4 and 5 have not supported the prosecution case and were treated as hostile witnesses. Even the spot mahazar Ex.P5 has not been approved since PWs 6 and 11 did not support the prosecution case and the witnesses were treated as hostile witnesses. He submitted that Exs.P6 & P7 issued by PW-9 shows that injuries are simple in nature. Learned counsel submitted that MO-1 has not been recovered on the statement of any of the accused and the spot mahazar witnesses having not supported the prosecution case, presence of MO-1 on the spot has not been established and even otherwise, Exs.P6 and P7 does not show any injury having been caused by use of MO-1. Learned counsel submitted that the findings recorded by the Appellate Court are perverse and illegal and hence, interference in the matter is called for.
Sri Vijayakumar Majage, learned High Court Government Pleader, on the other hand, would submit that the view taken by the learned Sessions Judge is justified, since the two victims have deposed and the prosecution has brought home the guilt of the accused for the offences under Ss.323, 324 and 506 IPC.
In view of the rival contentions and the record of the case which was perused, point for consideration is, whether the Appellate Court is justified in holding the petitioners guilty of offences under Ss.323, 324 and 506 IPC?
PW-2 is the complainant. Ex.P1 is the complaint. PW-1 is the son of PW-2. PWs 3, 4 and 5 were examined by the prosecution to prove the occurrence of the incident in question, i.e., they were examined as eye-witnesses. PWs 6, 7 and 11 were examined to prove the spot mahazar Ex.P5. PWs 3, 4, 5 and 6 & 11 have not supported the prosecution case. However, the evidence of the injured is credible. The mere fact that the alleged eye witnesses and the spot mahazar witnesses did not support the prosecution case is not fatal, on account of the availability of Exs.P6 & P7 and deposition of PWs 8, 9 and 10.
PW-1 who is the son of PW-2 has stated that, on 11.08.2005, himself and his father were in the land doing some work and at that time, the accused picked up a quarrel with his father and accused No. 1 stabbed his father with a long chopper on his abdomen, left rib and left hand. He has stated that on account of his intervention, A1 assaulted him on his left shoulder and left hand and the other accused assaulted his father by hands and threatened to kill him.
PW-2 has stated that, on 11.08.2005, he and his son/PW-1, were carrying on work in the land and at about 8.30 a.m., the accused came there armed with a long chopper and on account of the previous ill-will, he was stabbed on his abdomen by a chopper. According to him, when his son PW-1 intervened, he was also assaulted. He has stated that, accused No. 2 caught hold the neck of his son and felled him down and accused No. 3 stamped him and all the accused threatened to kill them.
Evidence of PWs 1 and 2 with regard to the stabbing by use of a long chopper has not been established, since Exs.P6 & P7 show the injuries to be simple in nature If there was a stabbing, naturally, blood would have oozed out and the shirt which PW-2 was wearing would have had blood stains and the same would have been seized by the police. Even the seizure of MO-1 at the spot has not been established. The incident occurred at 8.30 a.m. and the complaint was lodged at about 6.15 p.m. on the same day and the chopper - MO-1 alleged to have been found at the spot. The statement of PW-10 to the said effect is highly unbelievable. PWs 6 & 11 - spot mahazar witnesses, have not supported the prosecution case. Causing of grievous hurt by use of dangerous weapon has not been established. Thus, the finding of guilt for an offence under S.324 IPC is unjustified. The case of the prosecution against the accused for the offence under S.324 has not been established beyond all reasonable doubts. In the face of order of acquittal passed by the learned Magistrate, the Appellate Court was not justified in finding the accused guilty of the offence under S.324 IPC. However, the evidence of PWs 1 and 2 and the evidence of PWs 8, 9 and 10 makes out that, on account of the altercation between PWs 1, 2 and the accused, the accused voluntarily caused the hurt. Medical certificates issued by PW-9, marked as Exs.P6 and P7, do show the injuries caused to PWs 1 and 2 by the voluntary action of the accused. To the said extent, the finding of guilt recorded by the Court below for the offences under S.323 read with S.506 IPC is justified. In the result, revision petition is allowed in part. The Judgment dated 24.04.2010 passed in Crl.A.No. 93/2009 is modified. The conviction of A1 for the offence under S.324 and the consequential sentence imposed on him is set aside. Accused No. 1 having joined accused No. 2 and accused No. 3 has committed the offence under S.323 IPC and hence, stands convicted for the said offence.
The finding of the Appellate Court with regard to the offences under Ss.323 and 506 IPC having been well founded, is confirmed. The petitioners are sentenced to pay fine amount of Rs. 1, 000/- each, for each of the offences under Ss.323 and 506 IPC.
Each of the petitioners have already deposited Rs. 2, 500/- pursuant to the order dated 03.01.2006 passed in Crl.P.No. 18/2006. In view of the said payment, there is no need for the petitioners to deposit the fine amount as ordered herein. The said deposited amount, if not already disbursed to the injured, the same be released in favour of PWs 1 and 2.