STATE Vs. TULASIDARAN

JUDGEMENT

(1.) THE respondent to this appeal, the original accused Tulasidaran was charged with having committed offences punishable u/ss. 448 and 307, IPC. The allegation was that at about 6. 45 p. m. on 3-7-1991 he is supposed to have been taken to the house of his mother-in-law Ponnamma on the pretext of some panchayat being held. The record indicates that the family seems to have been involved in some violent incidents earlier, pursuant to which the father of the accused was at the relevant time injured in the Hospital. The accused is alleged to have attacked his mother Ponnamma with a knife, as a result of which she sustained injuries of some seriousness. He also stabbed the sister Smt. Anitha who sustained a stab injury on the back and the brother Bijukumar sustained a serious injury on the abdomen as a result of which the intestines were protruding from the injuries. All the three injured persons were taken to the Kadaba Government Hospital from where they were moved to the Wenlock Hospital at Mangalore. The prosecution case is that a few days prior to the incident Ponnamma's husband and her son Bijukumar had attempted to kill the elder bother of the accused and that it was for this reason that the accused had trespassed into the house and attacked the inmates. The matter was reported to the police who arrested the accused and on completion of the investigation, he was put up for trial. The evidence in this case essentially consists of the depositions of the three injured persons and other supportive evidence. The learned trial Judge expressed certain doubts with regard to the credibility of the witnesses principally because the sister of the accused Anitha gave an entirely different version in her evidence which was roughly to the effect that it was the accused who had been attacked and that he had acted in self-defence. Also, the trial Court took note of the fact that the accused has sustained injuries of some seriousness and was also admitted to the Hospital and treated as an in-patient for several days. The prosecution had not explained the injuries on the accused and this was the main ground on which the trial Court refused to convict on the basis of the prosecution evidence. The State of Karnataka has assailed the correctness of the acquittal order through the present appeal.

(2.) I have heard Sri Koti, learned Addl. SPP on behalf of the appellant-State and the learned Counsel R. B. Deshpande on behalf of the accused respondent. Mr. Koti has seriously assailed the order of acquittal because he has demonstrated that even though the entire incident is virtually a family affair that the evidence of the mother-in-law Ponnamma and of the other injured person who is her son Bijukumar very clearly establishes that it was the accused who rushed into their house and inflicted the injuries with an axe and knife. He has submitted that the accused was none other than the son-in-law that there is no difficulty with regard to the identification as the incident has happened within the house and furthermore that even as far as the motive is concerned, that this had also been established by the prosecution. It is his submission that the evidence of the daughter Anitha who is PW-3 ought to have been totally discarded by the trial Court as she has been treated as a hostile witness and he submits that evidence of such a witness which is tainted evidence cannot either contradict or dilute the evidence of the other witnesses which is almost faultless. Secondly, it is his submission that it was not for the prosecution to explain the injuries on the accused because he himself has mentioned in his statement u/s. 313, Cr. P. C. that he had been attacked by Bijukumar with an axe and that he had virtually hit out in self defence in the course of which the assailants had sustained some injuries. Mr. Koti contended that where the accused has himself fully explained the injuries that there is virtually no duty fast on the prosecution to explain them and that the principle which normally applies in criminal cases viz. , that if the injuries are not explained it is a factor against the prosecution which leads to the conclusion that the witnesses are holding back material evidence, would not hold good. His submission is that consequently the order of acquittal should be set aside and the accused be acquitted under both the charges. He has pointed out that a deadly weapon was used, that the injuries are serious and are on vital parts of the body and that therefore, Sec. 307, IPC would squarely apply. Also, he points out that even though the accused was a family member that in a situation where a son storms into the family home with a deadly weapon with the intention of causing death or grievous injury that the entry cannot be construed as being lawful but, that it would constitute a case of trespass and that therefore, the charge u/s. 448, IPC is also established.

(3.) MR. Deshpande, the learned counsel who represents the accused points out and perhaps with considerable justification that as far as the last submission is concerned, that the evidence is virtually silent with regard to how and under what circumstances the accused went to Ponnamma's house. There are references to the effect that some panchayat was to be held for purposes of exploring a settlement pursuant to the earlier assault and the accused himself has contended that he was virtually taken there by Ponnamma who is the mother-in-law of his elder brother. In any event, what is submitted is that unless it is demonstrated that the entry into the premises was against the sanction and wishes of the mother or the rightful owners that there can be no question of an offence u/s. 448, IPC being committed. We do see considerable justification in this submission because there is no clinching evidence to indicate that the entry of the accused into the family house was unlawful. He is a member of the extended family and again, there is nothing to indicate that at the time when he entered the premises that he was doing so for an unlawful purposes. Whichever way one views the evidence it would be impossible to sustain the charge u/s. 448, IPC.