Vs. State of Karnataka  Insc 93 (11 February 2004)
Raju & Arijit Pasayat. Arijit Pasayat,J.
High Court of Karnataka found the appellant guilty of offences punishable under
Section 307 of the Indian Penal Code, 1860 (in short 'the IPC') and sentenced
him to undergo rigorous imprisonment for two years, by upsetting the order of
acquittal recorded by the Trial Court. Three accused persons were acquitted,
but the High Court did not interfere with the order of the acquittal of two
other persons (A-2 and A-3), who are brothers of the appellant and faced trial
scenario giving rise to the present appeal is as follows:
1.5.90, between 11.00 to 11.30 a.m. PWs. 1, 3 and 6 to 9 had gone to a hotel to
take tea. While they were taking tea, appellant (A-1) came there. The sister of
the three accused persons was supposed to be the mistress of one Narasimha @ Dasi.
When A-1 reached near PW-3 and the others, he was questioned by PW-3 as to why
he and his brothers had assaulted Narasimha. There was verbal exchange between
P-3 and A-1. A-1 left the place. After taking tea, PW-3 and others went towards
Vishvas Cut-piece Stores. Suddenly, three accused persons reached there, and
quarreled with PW-3 and stated that it was none of his business, if Narasimha
was assaulted. A-2 and A-3 held shirt collar of PW-3 and in turn PW-3 also held
his collar. While pulling and pushing was going on, the appellant went out and
brought a weapon (Machu) and assaulted PW-3 on his head, left hand and thigh.
receiving the injuries, PW-3 fell down and he was taken to the hospital where
he was treated by doctor (PW-10).
complaint was lodged by Krishna (PW-1) which was reduced to writing
by the officer-in-charge (PW-11). He visited the place of occurrence, and
next day, A-1 gave information about the concealment of weapon by him and he
took PW-11 and other witnesses to the place where weapon of assault (Machu) was
concealed in a pushcart. The same was seized. After completion of investigation
charge sheet was placed. Accused persons pleaded innocence and faced trial.
Trial Court did not believe the evidence of PWs 1, 3 and 6 to 9 on the ground
that being friendly with PW-3 were interested witnesses. It is noted that PWs 1
and 8 resiled from their statements made during investigation partially.
Holding that the evidence of PW-3 was not very cogent and credible, the order
of acquittal, as noted above, was recorded. The State of Karnataka filed an appeal before the High
Court which by the impugned judgment confirmed the acquittal of A-2 and A-3 but
held acquittal of A-1 was uncalled for, convicted him for the offences
punishable under Section 307 IPC, and sentenced him to undergo imprisonment for
counsel for the appellant submitted that the High Court ought not to have
interfered with the well- reasoned order of the Trial Court. Cogent reasons
were given to discard the evidence of the injured witness and PWs 1, and 6 to 9
who claimed to be the eyewitnesses.
PWs 1 and 8 did not support the prosecution version. That being so, the
judgment of the High Court is vulnerable. The genesis of the controversy has
not been established in view of the admission of PW-3 that he had not met Narasimha,
and therefore the question of his asking A-1 about the differences between the
accused and Narasimha is highly improbable. It is also submitted that offence
under Section 307 IPC is not made out.
contra, learned counsel for the respondent-State submitted that the High Court
noticed the infirmities in the conclusions arrived at by the Trial Court. It
noticed that the cogent evidence of the injured witness and the eyewitnesses
was discarded on unsustainable grounds.
there is no scope for interference with the impugned judgment.
to be noted that the Trial Court referred to the evidence of the eyewitnesses,
and observed that only on the ground that the eyewitnesses were friendly with
PW-3, their evidence was not to be discarded. It is strange that the Trial
Court having observed that their evidence was not to be discarded only on the
ground of friendship, did so without indicating any plausible reason as to how
their evidence suffers from any infirmity otherwise. It is a fairly well
settled position in law that the evidence of a witness who is related to either
the deceased or the injured is not to be automatically rejected,
notwithstanding the fact that it is cogent, credible and trustworthy. The
reasons indicated by the Trial Court to discard the evidence have no acceptable
or supportable basis. So far as genesis of controversy is concerned, it is to
be noted that the Trial Court itself with reference to the evidence came to
hold that there was exchange of hot words between accused and PW-3. The Trial
Court has even gone to the extent that there was no ostensible reason for PW-3
to abuse A-1 during the course of such occurrence. Therefore, the plea that if
genesis of occurrence has not been established is clearly without substance, and
High Court has rightly not accepted it. The Trial Court though referred to the
evidence of PW-3 the injured witness did not indicate any reason as to why his
evidence was not worthy of credence. Mere cryptic observation of general nature
that it appears to be suspicious is without any material to support the
conclusion and is indefensible.
High Court has rightly acted on the evidence of PW- 3 and other eyewitnesses.
We find no infirmity in their evidence. Even though PWs-1 and 8 had resiled
from the statements made during investigation to some extent, their evidence
does not get wiped out in toto, as the evidence of such witnesses does not get
the only question which needs to be dealt with relates to the applicability of
Section 307 IPC. The evidence of the eyewitnesses goes to show that they tried
to intervene and save PW-3 from being assaulted by the appellant A-1, but he
continued to assault PW-3. The first blow was on a vital part, that is on the
though other blows were on non-vital parts, that does not take away the rigor
of Section 307 IPC. It is to be noted that in spite of interference by five
persons, appellant continued to assault PW-3. This clearly indicates the
intention of the appellant A-1.
sufficient to justify a conviction under Section 307 if there is present an
intent coupled with some overtact in execution thereof. It is not essential
that bodily injury capable of causing death should have been inflicted.
the nature of injury actually caused may often give considerable assistance in
coming to a finding as to the intention of the accused, such intention may also
be deduced from other circumstances, and may even, in some cases, be
ascertained without any reference at all to actual wounds.
Sections makes a distinction between the act of the accused and its result, if
any. The Court has to see whether the act, irrespective of its result, was done
with the intention or knowledge and under circumstances mentioned in the Section.
Therefore, it is not correct to acquit an accused of the charge under Section
307 IPC merely because the injuries inflicted on the victim were in the nature
of a simple hurt.
above position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983 (2) SCC 28) and in
(Criminal appeal No. 1034 of 1997 decided on 4.2.2004).
rightly held by the High Court, evidence on record clearly establishes
commission of offence punishable under Section 307 IPC. The sentence of two
years as awarded cannot be called to be in any manner higher or
appeal is dismissed. The appellant who is on bail is directed to surrender to
custody to serve remainder of his sentence.