The State of Karnataka vs Praveen Devadiga

Mohan M. Shantana Goudar, J.—The respondent-sole accused, in S.C. No. 17/2008 is convicted by the Fast Track Court, Puttur, Dakshina Kannada District, by the judgment dated 28.7.2011 for the offences punishable under Sections 324 and 326 of IPC. He is sentenced to undergo imprisonment for a period of one year for the offence punishable under Section 324 of IPC and three years for the offence punishable under Section 326 of IPC. Both the sentences were directed to run concurrently. Accused was also given the benefit of set off under Section 428 of Cr.P.C.

At the time of delivering the impugned judgment by the trial Court, the accused was in custody for one year 10 months and 15 days. He has not filed appeal questioning the judgment and order of conviction passed by the trial Court. Consequently, during pendency of this appeal he suffered full sentence of three years as imposed by the trial Court and is released from prison.

This appeal is filed by the State questioning the impugned judgment acquitting the accused for the offences punishable under Sections 307 and 506 of IPC. The State argues that the accused had attempted to commit the murder of the victim- P.W. 2 and therefore, he is liable to be punished for the offence punishable under Section 307 of IPC.

Case of the prosecution in brief is that the accused is the relative of P.W. 1; accused and his wife used to stay in the house of P.W. 1 whenever they come to their place; at 3.30 p.m. on 23.8.2007, the accused demanded certain sums of money from P.W. 1; as the request of the accused was not met by P.W. 1, the accused suddenly took a bottle and assaulted P.W. 1; at that point of time, P.W. 2 tried to intervene and she was also assaulted by the accused; thereafter, the accused lifted P.W. 2 and threw her in a well; P.W. 1 and others rescued P.W. 2 from the well and thereafter she was taken to the hospital for treatment.

The first information came to be lodged by P.W. 1 as per Ex. P1 in the hospital wherein he was taking treatment. Complaint came to be registered in Crime No. 50/2007 of Kadaba Police Station by P.W. 14-Sub-Inspector of Police. After completion of investigation, P.W. 14 laid the charge sheet.

In order to prove its case, the prosecution in all has examined 14 witnesses and got marked 8 Exhibits and 5 Material Objects. On behalf of the defence, one witness was examined and 5 Exhibits were got marked. D.W. 1 is none other than the accused himself.

Defence of the accused is that P.W. 1 outraged the modesty of his wife viz., Prathibha while they were proceeding to the temple; after returning home, the wife of the accused Prathibha told about the same to the accused and being annoyed, the accused suddenly assaulted P.W. 1 and thereafter P.W. 2.

P.Ws. 1, 2, 3, 4 and 8 are the eye witnesses to the incident in question. P.W. 5 is the sister-in-law of P.W. 1. She came to the spot immediately after the incident. Same is the evidence of P.Ws. 7 and 9. P.W. 6 is the doctor who treated the injured P.Ws. 1 and 2 and issued wound certificates as per Ex. P4 and P5. The intimation was sent to Police Station and consequent upon which the police came to the hospital and registered the case. As aforementioned, P.W. 7 is also the sister-in-law of P.W. 1. She came to the spot immediately after the incident. P.W. 8 is the neighbour of P.W. 1, who has turned hostile. P.W. 9 is the elder brother of P.W. 1. He has not supported the case of the prosecution during his cross-examination. P.W. 10 is the Police Constable who took the FIR to the jurisdictional Magistrate. P.W. 12 is the witness for spot mahazar under which MOs. 1 to 5 were seized. P.W. 12 is the Police Constable who arrested the accused on the next date of the incident. P.W. 13 is another Police Constable who took the articles to Forensic Science Laboratory. P.W. 14 is the Investigating Officer.

Case of the prosecution mainly rests on the evidence of P.Ws. 1, 2, 3, 4 and the doctor- P.W. 6. The doctor has deposed that P.W. 1 has sustained simple injuries. Ex. P4, the wound certificate also discloses that P.W. 1 has sustained two lacerated wounds which are very minor in nature. However, the doctor has further deposed that P.W. 2 sustained one grievous injury apart from five simple injuries. The wound certificate at Ex. P5 also discloses that injury No. 4 is grievous in nature.

Since all other injuries are stated to be simple in nature and as the said fact is not disputed by anybody, we need not discuss the other injuries suffered by P.W. 2 for the purpose of deciding this case. However, according to the doctor- P.W. 6, injury No. 4 is a grievous injury. In our considered opinion, the said opinion of the doctor is not correct for the following reasons:--

"Injury No. 4 sustained by P.W. 4 is as under:--

"4. Lacerated wound over the back of the left shoulder cut aspect of the left shoulder. 2 cm below the acromion fossa 6cm x 4cm x 3cm. The deltoid muscle was found cut. Bleeding present."

The said injury does not fall in one of the 8 classifications prescribed under Section 320 of IPC. It is no doubt true that injury No. 4 is of some seriousness, but the same cannot be treated as grievous injury for deciding the criminal case. Only if an injury falls within one of the 8 classifications prescribed under Section 320 of IPC, then the injury can be classified as grievous injury. Since the injury cannot be classified as one the grievous injuries as detailed in Section 320 of IPC, the trial Court, in our considered opinion is not justified in convicting the accused for the offence punishable under Section 326 of IPC.

However, the question still to be considered is as to whether the accused intended to commit murder of P.W. 2 by throwing her in the well. In this context, it is relevant to note the evidence of P.W. 2 herself. She has admitted in the cross-examination that the accused had not thrown her in the well and that he did not assault her near the said well. Consequently, no blood stains were found near the well. D.W. 1-accused has testified that he has not lifted P.W. 2 and threw her in the well as alleged against him. On the other hand, he has deposed that since P.W. 2 was annoyed with the act of P.W. 1 of outraging the modesty of Smt. Prathibha, wife of the accused, P.W. 2 felt insulted and she herself jumped in the well. She was frustrated because of the said conduct of P.W. 1. The evidence of D.W. 1-accused fully supports the admission of P.W. 2 in her cross-examination that accused did not throw her in the well and she was not assaulted by the accused near the well.

In view of the aforementioned evidence on record, more particularly of the victim herself, we are of the opinion that the trial Court is justified in acquitting the accused of the offences punishable under Section 307 and 506 of IPC. The material on record does not disclose that the accused had attempted to commit the murder of P.W. 2.

Since the judgment and order of acquittal acquitting the accused for the offences punishable under Sections 307 and 506 of IPC by the trial Court is just and proper, no interference is called for.

Hence, appeal fails and accordingly, the same stands dismissed.