Sri Yoganarasimham @ Narasimha vs State

A.S. Pachhapure, J.—The appellant has challenged his conviction and sentence for the charge u/s 307 IPC on a trial held by Fast Track Court at Mysore. The facts relevant for the purpose of this appeal are as under:

Hemanth Kumar, the son of PW 1 - Leelavathi had a love affair with Hemalatha, the daughter of appellant. A day earlier to the incident, the daughter of appellant disappeared from the house and the appellant suspected that the son of PW 1 was responsible for this. On the date of incident at about 8.30 p.m., he went to the house of PW 1 and enquired about his daughter. As PW 1 did not answer properly, enraged by the conduct of PW 1, he took out chopper and came to assault PW 1. She sent her children''s inside the house and started running away outside and at that time, appellant chased her and threw the chopper from a distance and the chopper hit the shoulder of PW 1 and she fell down. The appellant went to the place and after taking the chopper, said to have assaulted her again. In the circumstances, due to intervention of others, she was rescued. Ultimately, she approached the police and submitted her complaint (Ex. P1) and on registration of the same, injured was sent to the hospital for treatment and spot mahazar (Ex. P2) was held in the presence of attesting witnesses. Statements were recorded. The injury certificate was collected, the chopper (MO 3) was seized and the clothes of injured (Mos. 1 and 2) were seized and after complying necessary formalities, charge-sheet came to be laid against the appellant for the charge u/s 307 IPC.

During the trial, prosecution examined PWs. 1 to 10, got marked documents Exs. P1 to P15 and Mos. 1 to 3. Statement of the appellant was recorded u/s 313 Cr.P.C. No defence evidence was led. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, convicted the appellant for the charge u/s 307 IPC and ordered him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 5,000/- in default to undergo simple imprisonment for 4 months. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned Counsel for the appellant and learned High Court Government Pleader.

The point that arises for my consideration is:

Whether the appellant has made out any grounds to warrant interference in his conviction and sentence ordered by the Trial Court for the charge u/s 307 IPC?

It is the submission of learned Counsel for the appellant that except close relatives of the injured, no other persons have come forward to support the case of prosecution and therefore, he contends that the interested version of injured and her relatives cannot be accepted to award conviction. It is also his submission that the offence alleged do not fall within the purview of Section 307 IPC and taking into consideration the fact that incident took place due to grave and sudden provocation, the benefit of probation may be extended to the appellant.

On the other hand, learned High Court Government Pleader has supported the judgment and order of the Court below and submits that the evidence of injured is acceptable as it is corroborated by the medical evidence.

The scrutiny of evidence of PW 1 - Leelavathi reveals that a day prior to the incident, her son had disappeared with the daughter of appellant and it appears that there was love affair amongst them. It may be for the reason that appellant did not find his daughter in the house and on that day, he was in extreme tension. On the next day, he is said to have gone to the house of PW 1 and enquired about his daughter. As PW 1 did not answer properly and as she stated that she does not know anything about the whereabouts, he went to assault her and when she started running said to have chased her and threw the chopper, which hit her and she fell down and sustained injuries. It appears that thereafter, he again made an attempt to assault her. This evidence of the injured PW 1 is supported by the evidence of PW 2 - Geeta, the daughter-in-law. Though PWs. 3 and 7 have been examined by the prosecution, they have turned hostile. In the circumstances, it is the evidence of PWs. 1 and 2 and PW 8 - Rajashree, the doctor, which is relevant for the purpose of appreciation.

Perusal of the evidence of PW 8 - Dr. Rajashree reveals that she examined PW 1 on 05.04.2002 at about 8.30 p.m. and on examination she found PW 1 had sustained lacerated wound over the head, left shoulder and back with bleeding. She was admitted in the hospital on 05.04.2002 and discharged on 26.04.2002. X-ray reveals the fracture of skull on right parietal bone. The doctor has certified that these injuries are grievous in nature. It is also in her evidence that such injuries can be caused by the assault with Chopper (MO 3). There is corroboration of medical evidence to the evidence of injured.

It is well established principle that generally, an injured does not implicate the innocent person and also does not leave the person who has really caused harm. There is no reason for PW 1 to unnecessarily implicate the appellant as the person who caused injuries on her. In the circumstances, there is no reason to disbelieve the evidence of PWs. 1 and 2 so far as assault is concerned.

It is relevant to note that appellant being the father of Hemalatha, who was an young girl, as she disappeared a day earlier to the incident, the appellant might be in tension and worrying about his daughter and he might have suspected the son of PW 1 being the person responsible for her disappearance and in these provoked circumstances, he went to the house of PW 1 and when enquired about his daughter she pleaded ignorance and therefore, he suddenly got enraged by the conduct of PW 1 and tried to assault her with the chopper. When PW 1 started running from her house, he chased her and threw the chopper, which hit PW 1 and she fell down and it appears that he again assaulted her with the chopper.

Considering the aforesaid facts and circumstances, it is clear that the appellant was in a grave and sudden provocation, tried to take the life of victim. Hence, the provision u/s 307 IPC is not applicable to the facts on hand solely for the reason, the attempt was in relation to an offence of culpable homicide not amounting to murder, therefore, the provision of Section 308 IPC is applicable and conviction of appellant for the charge u/s 307 IPC by the Trial Court is improper.

Taking into consideration the fact that he entertained anger and he was provoked solely for the reason that his daughter was absent a day earlier to the incident, he was waiting for her and having suspected the son of PW 1 was the person responsible for disappearance of his daughter, said to have assaulted PW 1. Considering these facts and circumstances and the fact that subsequent to the incident, daughter of the appellant has given birth to a child and she is residing happily with the son of PW 1, I think leniency has to be shown in the matter of sentence to be awarded. In the result, the appeal is allowed in part. Conviction of appellant for the charge u/s 307 IPC is set aside.

Appellant is convicted for the charge u/s 308 IPC and he is ordered to undergo simple imprisonment for 6 months and to pay fine of Rs. 5,000/- in default to undergo simple imprisonment for one month.

Appellant is entitled for set off u/s 428 Cr.P.C.

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

The compensation as ordered by the Trial court be paid to PW 1 - Leelavathi, out of the fine amount, if deposited.

An amount of Rs. 5,000/- deposited at the time of admission may be transferred to the Court below and it shall be credited to the State as fine.