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CASE NO.: Appeal (crl.)  1179 of 1997

PETITIONER: R. Prakash

RESPONDENT: State of Karnataka       

DATE OF JUDGMENT: 11/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

ARIJIT PASAYAT,J.

The 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  with him.       

Factual scenario giving rise to the present appeal is  as follows:

On 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.   On receiving the injuries, PW-3 fell down and he was taken  to the hospital where he was treated by doctor (PW-10).   Oral 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 started investigation.   On the 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.   

The 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

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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 two years.   

Learned 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.   Significantly, 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.

Per 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.   Therefore, there is no scope for interference with the  impugned judgment.   

It is 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.   

The 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 washed off.                   

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Therefore, 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 temporal region.  Even 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.

It is 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.   Although 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.  The 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.        

The 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).

As 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 disproportionate.   The appeal is dismissed. The appellant who is on bail is  directed to surrender to custody to serve remainder of his  sentence.