State vs Somashekara

N. Ananda, J.—The respondent (hereinafter referred as "accused No. 1) and accused No. 2 were tried for an offence punishable under Section 307 r/w 34 IPC. The learned Sessions Judge acquitted accused No. 2 of an offence punishable under Section 307 r/w 34 IPC and convicted accused No. 1 for an offence punishable under Section 324 IPC. Therefore, the State has filed this appeal against the judgment of acquittal of accused No. 1 for an offence punishable under Section 307 r/w 34 IPC.

The learned Government Pleader has filed a memo reading as hereunder:-

"The Counsel for the Appellant-State submits that after verification it is found that no appeal has been preferred by the Respondent/Accused against his conviction for the offence punishable under Section 324 IPC passed in S.C. No. 123/2009 on the file of the Prl. District & Sessions Judge, Mysore. Further, he is also submitting Fax Message received from the District Prison, Mysore stating that the Respondent/Accused has undergone imprisonment in Central Prison, Mysore, from 04.10.2010 to 05.01.2013, i.e., till his date of release from the prison. Hence, this Memo may kindly be taken on record, in the interests of justice."

The learned Government Pleader would submit that accused No. 1 has not filed appeal against judgment of conviction for an offence punishable under Section 324 IPC. He has undergone imprisonment in terms of impugned judgment. Therefore, the only point that would arise for determination is whether the learned Sessions Judge should have convicted accused No. 1 for an offence punishable under Section 307 IPC.

We heard Sri Vijayakumar Majage, learned Government Pleader for the State and Sri Vishwanatha Poojary K, learned counsel for accused No. 1.

At the outset, it is necessary to state that the State has not filed appeal against acquittal of accused No. 2 of an offence punishable under Section 307 r/w 34 IPC though accused Nos. 1 and 2 were tried for an offence punishable under Section 307 r/w 34 IPC.

It is seen from the evidence on record that husband of P.W. 3-Padmavathi and accused No. 1 - Somashekara are direct brothers. Accused No. 2-Rathnamma is the mother of accused No. 1. P.W. 4-Puttaswamy is the father of accused No. 1 and husband of accused No. 2. During the year 2008, they were residing in their own house at Vinayakanagar, Mysore. It is the case of prosecution that on 23.07.2008 at 2.30 p.m. accused No. 1 was making a hole by driving knail into asbestos sheet covered on the roof of house which was in occupation of P.W. 3 and her husband P.W. 3 asked accused No. 1 not to drive knails on asbestos sheet as rain water would seep into their house. Accused No. 1 told her, it is their house and it is their will and wish to drive knails into the roof and she has no business to question him. It is the case of prosecution, when P.W. 3 was getting down from upstairs to inform the matter to her husband, accused No. 1 confronted her and assaulted her with a chopper and caused grievous injuries with such intention and knowledge by his acts, if he had caused death of P.W. 3, he would have been held guilty of an offence punishable under Section 307 IPC.

The prosecution has mainly relied on the evidence of P.W. 3-Padmavathi and medical evidence of P.W. 1 - Dr. N. Ramanaik and P.W. 8 - Dr. N. Rachegowda.

On re-appreciation of evidence of P.W. 3 - Padmavathi we find her evidence is consistent and credible. She had promptly lodged first information. P.W. 4 - Puttaswamy who is none other than the father-in-law of P.W. 3 - Padmavathi has not supported the case of prosecution, so also the neighbours of P.W. 3. The evidence of P.W. 3 finds in substantial corroboration from the contents of first information lodged by P.W. 3. There are no reasons to suspect the evidence of P.W. 3 that she was assaulted by accused No. 1 with a chopper.

The crucial point for determination is:

"Whether the acts committed by accused No. 1 would attract an offence punishable under Section 307 IPC or in the alternative an offence punishable under Section 326 IPC?"

In the discussion made supra, we have narrated the relationship between parties and background of occurrence. It appears there was a dispute regarding enjoyment of house property between P.W. 3 - Padmavathi and husband of P.W. 3 on one side and accused on other side. The accused were residing in the ground floor. P.W. 3 and her husband were residing in upstairs. The quarrel between accused and P.W. 3 took place when accused No. 1 attempted to drive knails into asbestos sheets covered on the roof of house of P.W. 3. The occurrence was not premeditated. Accused No. 1 had assaulted P.W. 3 with a hammer which he was using to drive knails into asbestos sheet covered on the roof and caused injuries to her. From the medical evidence of P.W. 1 - Dr. N. Ramanaik, we find P.W. 3-Padmavathi suffered lacerated with incised wounds one over the head and other on the left hand. P.W. 1 has not given dimensions or measurement of injuries. The description of injuries as both lacerated and incised wounds is rather vague. P.W. 3 - Padmavathi has deposed that accused No. 1 assaulted her with a chopper, in which event, she would have suffered incised injuries/cut injuries.

The learned Government Pleader would submit that P.W. 3-Padmavathi had suffered fractures. The prosecution has examined P.W. 8 - Dr. N. Rachegowda to prove that after the incident X-rays were taken and X-rays showed fracture of 3rd and 4th of metacarpals of left hand of P.W. 1. At this juncture, it is relevant to state that P.W. 8 has produced X-rays but he has not produced opinion of Radiologist. P.W. 3 - Padmavathi has not deposed that accused No. 1 had assaulted on her palm with chopper and caused fractures. P.W. 3 has deposed that she had suffered fracture of her skull bones. The evidence of P.W. 3 is contrary to medical evidence. In the circumstances, the learned Sessions Judge was justified in convicting accused No. 1 for an offence punishable under Section 324 IPC. There are no reasons to interfere with the impugned judgment.

The appeal is dismissed.