CRIMINAL APPEAL 2295 of 2005 on 18 November 2005

1. Rama Naika,S/o Sanna Naika,Aged 50 years.

2. Lakshmamma,W/o Rama Naika,Aged 42 years.

3. Santosh,S/o Rama Naika,Aged 25 years.

All are Residing atNo.14, CHESCOM Quarters,K.R.Nagar,Mysore District.… Appellants [By Sri.Venkatesh.D.Pastay, Advocate]

AND :

The State of Karnataka,By its K.R.Nagar Police,Represented by theState Public Prosecutor,High Court Buildings,Bangalore. ... Respondent [By Sri.G.M.Srinivasa Reddy, Government Pleader]

This Criminal Appeal is filed under Section 374Cr.P.C. praying against the judgment dated 18.11.2005passed by the III Additional Sessions Judge, Mysore inS.C.No.337/2003-convicting the appellants/accusedNos. 1 to 3 for the offence punishable under Section 324read with Section 34 of IPC and sentencingappellants/accused Nos.1 and 2 to pay fine ofRs.3,000/- each with default sentence of S.I. for 6months for the offence punishable under Section 324read with Section 34 of IPC and further sentencingappellant/accused No.3 to undergo S.I. for a month andto pay fine of Rs.3,000/- with default sentence of S.I. forfurther period of 3 months for the offence punishableunder Section 324 read with Section 34 of IPC.

This Criminal Appeal coming for hearing on thisday, the court delivered the following:

This appeal by the convicted accused Nos.1 to 3 inS.C.No.337/2003 on the file of the III AdditionalSessions Judge, Mysore is directed against thejudgment of conviction and order of sentence dated18.11.2005 convicting the appellants / accused Nos.1to 3 for the offence punishable under Section 324 readwith Section 34 of IPC and sentencing accused Nos.1

and 2 to pay fine of Rs.3,000/- and sentencing accusedNo.3 to undergo simple imprisonment for one monthand to pay Rs.3,000/- for the said offence.

2. Accused No.1/ appellant No.1 and accusedNo.2/appellant No.2 are husband and wife whileaccused No.3/ appellant No.3 is their son. They areresidents of Hanasoge Village, in K.R.Nagar Taluk.According to the case of the prosecution, on 28.1.2003at about 6.00 p.m. in Hanasoge village, these threeaccused persons by sharing common intention in thebackground of the civil dispute, committed acts ofassault on PW.1-Cheluvamma, her husband PW.2-Ramanaika and their son PW.3-Shankaranaika withchoppers and club with an intention to commit theirmurder and cause grievous injuries for all of them.With those allegations, the appellants were tried for theoffences punishable under Section 307 read withSection 34 IPC and Section 324 read with Section 34IPC. The appellants pleaded not guilty for the chargeslevelled against them and claimed to be tried.

3. The prosecution in order to bring home the guiltof the accused persons examined PWs.1 to 10 and reliedon documentary evidence Exs.P.1 to P.9. Apart fromdenying all the incriminating circumstances appearingagainst them in the evidence of the prosecutionwitnesses during their examination under Section 313Cr.P.C., the accused examined DWs.1 and 2 to supporttheir defence that on the date and time of the allegedincident, accused No.1 was in his workplace at Hunasuras an employee of CHESCOM and accused No.3 wasdischarging his duty as Gate Keeper in a CinemaTheater in Periapatna. The defence of the accused wasone of total denial and that of false implication.

4. The learned Sessions Judge, after hearing bothsides and on assessment of the oral as well asdocumentary evidence, by the judgment under appeal,held that the appellants are guilty of the offencepunishable under Section 324 read with Section 34 IPC.The learned Sessions Judge rejected the defence theory.Nevertheless, the learned Sessions Judge was of the

view that though the prosecution has proved theincident of assault on PWs.1 to 3 by accused Nos.1 to 3at about 6.00 p.m. on 28.1.2003, the acts of assaultcannot be held to have been committed with anintention to commit the murder of PWs.1 to 3, therefore,the ingredients of offence under Section 307 are notattracted. In this view of the matter, the appellantswere acquitted of the charge levelled against them forthe offence punishable under Section 307 read with 34IPC and they were convicted for the offence punishableunder Section 324 read with 34 IPC and sentenced asnoticed supra. Aggrieved by the said judgment, theappellants have presented this appeal.

5. During the pendency of this appeal, it wasreported that appellant No.1 died on 29.7.2007.Therefore, this court on the basis of such report, on14.12.2007 ordered that appeal against appellant No.1abates. At this stage, it is necessary to note that sub-Section (2) of Section 394 Cr.P.C. directs that everyappeal other than an appeal under Section 377 or under Section 378 and an appeal from a sentence offine only, shall finally abate on the death of theappellant. However, proviso to sub-section (2) providesthat where the appeal is against the conviction andsentence of death or of imprisonment, when theappellant dies during the pendency of the appeal, any ofhis near relatives may within 90 days of the death of theappellant may apply to the Appellate Court for leave tocontinue the appeal and if leave is granted, the appealshall not abate. Appellant Nos.2 and 3 in this case arewife and son of appellant No.1. Though appellant No.1has been convicted for the offence punishable underSection 324 IPC, he was not sentenced to undergoimprisonment for any term. He was sentenced to payfine only. Reading of sub-section (2) of Section 394Cr.P.C. makes it clear that appeal from a sentence offine does not abate on the death of the appellant.Obviously this is with a view to recover the fine amountin the event of the court affirming the sentence from theestate of the convicted accused. Though in this appeal,both judgment of conviction and order of sentence are challenged by appellant No.1, the challenge in so far asit relates to the conviction of appellant No.1 for theoffence punishable under Section 324 r/w 34 IPC maynot survive since there was no sentence ofimprisonment and none of his near relatives havesought for leave to continue the appeal, challenge as tothe sentence of fine would still survive. It is to thatlimited extent, though appellant No.1 has died, theappeal with regard to the challenge as to the sentence offine would be considered.

6. I have heard the learned counsel appearing onboth sides and perused the records secured from thecourt below.

7. The contentions of the learned counsel for theappellant are as under:

that the judgment under appeal is highly perverseand illegal inasmuch as the learned Sessions Judge hasnot properly appreciated the material inconsistenciesand discrepancies brought out in the evidence of PWs.1to 4 which have rendered their testimony highly

unreliable since they are highly interested andmotivated in the light of the admitted civil disputebetween the two families; that the learned SessionsJudge has not assigned any reason for rejecting thetestimony of DWs.1 and 2 except stating that theevidence of DWs.1 and 2 is not convincing, thus there isno consideration of the evidence of DWs.1 and 2 in thejudgment under appeal as such the judgment underappeal suffers from non-consideration of the materialevidence on record; that the evidence on record does notsatisfactorily establish the incident alleged, therefore,the learned Sessions Judge is not justified in holdingthe appellants guilty of the offences alleged.

Alternatively he contended that if for any reasonthis Court were to held that the judgment of convictionrecorded by the court below does not warrantinterference, the order of sentence is harsh andexcessive regard being had to the offence for which theyhave been found guilty.

8. On the other hand, learned Government Pleader sought to justify the judgment under appeal contendingthat the judgment under appeal does not suffer fromany perversity and illegality warranting interference bythis Court.

9. In the facts and circumstances of the case and in the light of the submissions made on both sides,points that arise for consideration in this appeal are:

(1) Whether the judgment under appealsuffers from any perversity or illegalitywarranting interference by this Court?suffers from any perversity or illegalitywarranting interference by this Court?

(2) Whether the order of sentence is harshand excessive regard being had to thenature of the offence for which they havebeen found guilty?and excessive regard being had to thenature of the offence for which they havebeen found guilty?

10. There is no dispute that PWs.1 and 2 arehusband and wife while PW.3-Shankaranaika andPW.4-Sharada are their children. They are alsoresidents of Hanasoge village in K.R.Nagar Taluk.PWs.1 to 4 and accused No.1 to 3 are relatives. It isalso an admitted fact that there was civil dispute between the two families pending for over a severalyears. It is in the background of this admitted fact, thelearned counsel for the appellant contended that theappellants have been falsely implicated in the case. Thelearned Sessions Judge has considered this argumentand has held that the motive is a double edged weaponand it could be a ground for committing the offence aswell as for false implication. Therefore, the learnedSessions Judge has considered the evidence on recordand has come to a conclusion that the evidence ofPWs.1 to 4 is consistent and cogent and inspires theconfidence of the Court and their evidence with regardto the site of injury and the nature of the weapon withwhich such injury has been caused, gains corroborationfrom medical evidence.

11. With regard to the incident, the criminal lawwas set on motion by the complaint lodged by PW.1 inthe form of statement recorded by PW.7-Puttaraj, HeadConstable in the Hospital in K.R. Nagar. The said reportis marked as Ex.P.1 in the case. According to the overt

acts attributed in the complaint against accused Nos.1to 3, accused No.2 assaulted PW.2 on the head withchopper, accused No.1 assaulted PW.3 with a chopper,accused No.1 assaulted PW.2 on head with a club andPW.3 on the right palm with a club. The incident said tohave occurred in front of the house of the accused onthe road at about 6.00 p.m. while PWs.1 and 4 werereturning to their house from the bus stand side.PWs.1 to 4 in their oral evidence have reiterated thefacts stated in the complaint except for some minorchanges as to the place from which PWs.1 and 4 werecoming and the immediate cause for the incident.According to the complaint averments, PW.1 wascollecting water from a tap near the house of theaccused; that at that time her son and daughter, PWs.3and 4 after alighting from the bus were proceedingtowards the house; that at that time the dog of theaccused started barking at PWs.3 and 4; that thereforePW1 with a view to drive the dog away pelted a stone atit; that on seeing this, accused Nos.1 to 3 came thereholding choppers and clubs and assaulted PW.1; that on seeing this, when PW.2 husband of PW.1 came there,he was also assaulted and when PW.3 went to therescue of his mother he was also assaulted. However inthe evidence before the court, there are some minordiscrepancies in this regard. In my opinion, the learnedSessions Judge has rightly not viewed discrepancies inthis regard seriously. Minor inconsistencies anddiscrepancies bound to appear when evidence is soughtto be projected through human agency that too longlapse of time after the incident. There is noinconsistency as to the substratum of the case of theprosecution. Of course PWs.1 to 4 are closely related toeach other and on that ground, their evidence cannot bediscarded. PWs.1 to 4 have consistently stated aboutovert acts of each of the accused. In the cross-examination of these witnesses, there is nothing toindicate that their evidence is unreliable. The presenceof PWs.1 to 4 in the village at time is not disputed.

12. The evidence of PWs.1 to 4 with regard to theassault on each of them with reference to the weapons gets corroboration from the contents of the woundcertificate. No doubt, the Doctor who treated them inthe Hospital is not examined for the reason that heresigned from the job. However another Doctor,Dr.Mahadev who has been working in the Hospital hasbeen examined as PW.9. He produced medical recordsand has spoken about its contents. The woundcertificates as per Exs.P.7 to P.9 have been issued by aGovernment Hospital in discharge of official duty. Thereis a presumption as to the regularity of the official acts.The contents of Exs.P.7 to P.9 are not seriouslydisputed nor challenged by the accused. The contentsof the wound certificates clearly indicate the part of thebody on which PWs.1 to 3 sustained injuries. The siteof the injury is consistent with overt act on the part ofthe accused as stated by PWs.1 to 4 in their evidence.Of course two independent witnesses examined by theprosecution as PWs.5 and 8 whose names finds place inExs.P.1, have not supported the case of the prosecutionand they have been declared hostile. Therefore, theirevidence is of no assistance to the prosecution.

Nevertheless, there are no reasons to discard theevidence of PWs.1 to 4 with regard to the incident ofassault. Therefore, in my opinion, the learned SessionsJudge has not committed any error in placing relianceon the evidence of PWs.1 to 4.

13. Of course perusal of the judgment underappeal indicates that the learned Sessions Judge exceptstating that testimonies of DWs.1 and 2 is notconvincing has not set out the reasons as to why theirtestimonies are not convincing. The learned SessionsJudge ought to have assigned reasons for not acceptingthe testimony of DWs.1 and 2. As noticed supra, DWs.1and 2 have been examined by the accused to prove theplea of alibi on the part of accused Nos.1 and 3.Therefore, it is for the accused to prove the said pleasatisfactorily. Merely on the ground that the learnedSessions Judge has not assigned any reasons for notaccepting the testimony of DWs.1 and 2, the judgmentunder appeal cannot be termed as perverse or as illegal.Therefore, let me consider as to whether the learned Sessions Judge is justified in not acting on thetestimonies of DWs. 1 and 2.

14. DW.1 is the Assistant Engineer working inSub-Division of CHESCOM at Hunasur where accusedNo.1 was employed as a Mechanic. However, theevidence of DW.1 indicates that on the relevant datenamely 28.1.2003, he was not the Assistant Engineer ofthat Sub-Division and one H.K.Ramesh was theAssistant Engineer of that sub-Division and saidRamesh was presently working in Belur Sub-Division.Said Ramesh has not been examined before the Court.DW.1 by merely producing the attendance register ofthe employees working in the said sub-Division hasstated that on 28.1.2003 accused No.1 reported for dutyas usual and signed the attendance register. Accordingto him the working hours of all the workers wasbetween 8.30 a.m. and 7 or 7.30 p.m. He further statedthat Hanasoge village is at a distance of 40 kms fromHunasur and if one travels by bus atleast 1½ hours isrequired to cover the said distance. The attendance register has been marked as Ex.D.8. No doubt as perthe entries found in Ex.D.8, on 28.1.2003 accused No.1reported for duty as it bears his signature. There is nodispute that accused No.1 was working as a mechanicand he was required to go out of the office to attend tothe complaints if any on the power supply lines.Therefore, since DW.1 was not the Assistant Engineer atthe relevant point of time, he was not in a position tostate as to whether accused No.1 had gone out of theoffice after subscribing his signature in the attendanceregister. Therefore, from the evidence of DW.1, itcannot be definitely stated that on that day, accusedNo.1 was in the office at Hunasur till 7.00 or 7.30 p.m.Possibility of accused No.1 having come back to thevillage by 6.00 p.m. cannot be completely ruled out.Therefore, in my opinion, the evidence of DW.1 does notconvincingly prove the presence of accused No. 1 in theoffice of the sub-Division at Hunasur at about 6.00 p.m.on 28.1.2006. On the other hand, the consistentevidence of PWs.1 to 4 establishes the presence ofaccused No.1 in the village and his participation in the incident. Therefore, the learned Sessions Judge, in myopinion, has not committed any error in discarding thetestimony of DW.1.

15. According to DW.2, at the relevant point oftime, he was working in the Cycle stand of SharadaTheater at Periapatna and at that time accused No. 3was working as Gate keeper in the said Theater.According to him, the working hours of the gate keeperwas between 10.00 a.m. to 12.00 in the mid night. Hehas further stated that while accused No.3 was workingas gate keeper in Sharada Theater he was staying in hisgrand mother’s house in Periapatna. Except the oralsay of DW.2 that at the relevant point of time accusedNo. 3 was working as a gate keeper in Sharada Theaterat Periapatna, no documentary evidence is produced toprobabilise this fact. It is not as if no document isavailable to establish the said fact if accused No. 3 wasworking as a gate keeper in the said theater. In theabsence of any documentary evidence, oral evidence ofDW.2 to the effect that accused No. 3 was working as a gate keeper in the said theater cannot be accepted.Assuming for the purpose of argument, as stated byDW.2, accused No.3 was working as a gate keeper inSharada Theater, Periapatna, the evidence of DW.2 doesnot clearly indicate as to whether accused No.3 was onduty in the said theater on 28.1.2003. Therefore, theevidence of DW.2 cannot be a basis to hold that accusedNo.3 was not in the village. In this view of the matter,the learned Sessions Judge has rightly not placed anyreliance on the testimony of DW.2 also. Therefore, therewas no reason for doubting the testimonies of PWs.1 to4 with regard to the participation of accused Nos.1 to 3in the incident and committing the acts of assault onPWs.1 to 3. Therefore, the learned Sessions Judge inmy opinion, is justified in holding that the appellantsare guilty for the offence punishable under Section 324r/w 34 IPC.

16. As noticed above, the learned Sessions Judgehas acquitted the appellants for the offence underSection 307 r/w 34 IPC and since the State has not filed any appeal against that part of the judgment, there isno need to consider as to whether the acts of assaultcommitted by the accused was with an intention tocommit the murder of PWs.1 to 3. The judgment ofconviction recorded by the learned Sessions Judge issound and reasonable regard being had to the evidenceon record and does not suffer from any perversity orillegality warranting interference by this Court.

17. As noticed supra, the learned Sessions Judgesentenced accused Nos.1 and 2 only to pay fine whilesentencing accused No.3 to undergo imprisonment forone month and to pay fine of Rs.3,000/-. The sentenceof imprisonment of accused No.3 appears to have beenpassed keeping in mind that he was in custody for aperiod of more than one month. Having regard to thenature of the acts committed by the appellants onPWs.1 to 3 as also the nature of the weapons used, inmy opinion, the sentence of fine ordered by the learnedSessions Judge cannot be termed as harsh or asexcessive. As could be seen from the record, the appellants have already deposited the fine amount. Inthis view of the matter, I find no ground to interfere withthe order of sentence also. Hence, the appeal lacksmerit. Therefore, the appeal is dismissed.

SD/-

JUDGE

RS/*