YEKAMBARISH @ EKAMBARAM Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal by the convicted accused is directed against the judgment and order dated 21.11.2005 passed by presiding Officer and Additional Sessions Judge, Fast Track Court IV, Kolar, in S.C. No. 66/2000 convicting him for the offence punishable under Section 307 and 326 of IPC and sentencing him to undergo R.I. for 7 years and to pay fine of Rs. 5,000/ - for the offence punishable under Section 307 of IPC and further sentencing him to undergo R.I. for 5 years and to pay fine of Rs. 5,000/ -, for the offence punishable under Section 326 of IPC.

(2.) THE case of the prosecution in brief was as under: PW2, Laxmamma is the mother of PW1 Umashankar. Accused, Yekambaresh @ Ekambaram is the younger brother of PW2, they being the children of one Late Venkatappa, R/o Punyahalli Village inMulbagal Taluk. Land bearing Sy. No. 117 measuring about 4 acres situated in Punyahalli Village among other lands was the property owned by said Venkatappa who died intestate about 20 years ago leaving behind his wife, Meenakshamma, two daughters and three sons. PW2 was claiming that land bearing Sy. No. 117 has been gifted to her by her father towards Harishina -Kumkuma before his death and since than she has been in possession and enjoyment of the said land. Further alleging that accused is interfering with her peaceful possession and enjoyment of the said land, she filed civil suit against the accused before the Court seeking relief of permanent injunction and the said suit was pending. At about 11.30AM on 25.11.1998, PWs l and 2 came to know about the accused harvesting paddy crop grown in the land bearing Sy. No. 117, immediately, PWs 1 and 2 went to the land, saw accused harvesting the paddy crop and questioned him as to how he is harvesting the crop grown by them. Annoyed by this the accused assaulted PW1 with the sickle on the left side of stomach causing him severe bleeding injury. When PW2 went to the rescue of her son PW1, the accused assaulted PW2 also with the same sickle on her left forearm causing her severe bleeding injury. On hearing the screaming sounds of PWs 1 and 2, PW3 and others came there and seeing them the accused ran away from the place by throwing the sickle there itself. Immediately, PWs 1 and 2 were shifted to the village near the land by PW3 and from there they were taken to primary Health Centre (PHC), Mulbagal, where they were examined and treated by PW9, Dr. S.N. Vijayakumar. Having regard to the nature of the injury suffered by PW1, he was referred to SNR Hospital, Kolar while PW2 was admitted as inpatient in PHC, Mulbagal. PW1 was treated as inpatient in SNR Hospital from 25.11.1998 to 08.12.1998. During treatment Laperotomy operation was done. While PW1 was taking treatment in SNR Hospital, jurisdictional police came there and recorded his statement about the incident as per Ex.Pl and based on the same, case came to be registered and investigation was taken up. The Investigation Officer visited the scene of occurrence, drew up spot mahazar, seized the sickle M01 from the scene of occurrence, also seized the blood stained clothes of PW1, recorded the statement of witnesses including the injured PW2 apprehended the accused and on completion of investigation filed the charge sheet for the offences punishable under Section 307 and 326 of IPC. On committal of the case, the accused appeared before the Sessions Judge and pleaded not guilty for the charges levelled against him. Prosecution, in order to bring home the guilt of the accused, examined PW1 to PW12 and relied on documentary evidence marked as Exs. P1 to P16 and MOs 1 to 3. The accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He did not choose to lead any defence evidence. His defence was one of total denial and that of false application in the background of civil dispute. It was also his defence that while trying to cut the paddy crop in a hurry PWs 1 and2 sustained injuries with the weapon in their hands. After hearing both sides and also on assessment of oral as well as documentary evidences, the learned Sessions Judge by the judgment under appeal convicted the accused for the charges levelled against him holding that the prosecution has proved beyond reasonable doubt that the accused committed the acts of assault on PWs 1 and 2 with an intention to take away their lives and by the said acts of assault he caused grievous hurt to both PWs 1 and 2. Aggrieved by the said judgment of conviction and order of sentence, the accused is in appeal before this Court.

(3.) LEARNED counsel for the appellant contended that the judgment under appeal is highly perverse and illegal as the findings recorded by the learned Sessions Judge are not based on proper appreciation of evidence on record. He contended that in the light of the admitted civil litigation between the accused on the one hand and PWs 1 and 2 on the other hand, the learned Sessions judge ought to have held that the accused has been falsely implicated in the case. He contended that the evidence of PWs 1 and 2 being highly interested and motivated, in the absence of any corroboration, could not have been the basis to come to the conclusion that accused is guilty of the said offence. It is his further contention that having regard to the fact that PWs 1 and 2 went to the land and obstructed the accused from harvesting the crop, it is reasonable to infer that the alleged assault was during a quarrel, in a spur of moment without there being any intention, therefore, from the facts and circumstances of the case it cannot be inferred that the alleged act was done with an intention or knowledge likely to cause death of PW1 or PW2. Therefore, he contended that the conviction for the offence punishable under Section 307 Of IPC is highly perverse and illegal. He contended that the case of the prosecution that sickle, MO1 was used for assault does not gain corroboration from the medical evidence since doctor who treated PW1 has admitted in the cross -examination the nature of the injury found on the person of PW1 could not be caused by a weapon like MO1, therefore, the use of MO1 is highly doubtful. He further contended that the learned Sessions Judge has recorded the finding that both PWs 1 and 2 sustained grievous hurt only on the basis of the opinion furnished by the doctors who treated them but has failed to see that the injury suffered by PWs 1 and 2 does not fall under any of the circumstances mentioned in Section 320 of IPC to term them as grievous hurt. Therefore, he contended that there is no acceptable and legal evidence to establish that PWs 1 and 2 had sustained grievous hurt within the meaning of Section 320 of IPC, as such even if this Court were to accept the findings of the Trial Court with regard to acts of assault by the accused, the acts alleged to have been committed by him, at best, may attract offence punishable under Section 324 of IPC. He contended that since the accused has already spent about 20 days in custody and having regard to the subsequent development resulting in the denial of any share to PW2 in the civil suit filed by her for partition in relation to land bearing Sy. No. 117, the interest of justice will be met by sentencing the accused to the period of custody already undergone. Therefore, he sought for setting aside of the judgment and order of sentence.