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2003 Supreme(Kar) 264
Karnataka High Court
State of Karanataka, S.I.of Police, Moodabidri P.S. - Appellant
Versus
Vishwanatha S.Anchan - Respondent
Decided On : 03-13-03
CRIMINAL APPEAL : 282 of 1998
R.B.DESHAPANDE, V.Y.Kumar
Headnote:Attempt to murder -appeal against acquittal
INDIAN PENAL CODE, 1860-
Attempt to murder -appeal against acquittal
Section 307 -Trial judge disbelieving the evidence of injured witness just because the other witnesses cannot be believed -whether justified? No. Order of acquittal reversed convicted under Section 326.
[Kumar Rajaratnam & Manjula Chellur, JJ.] - In the background of the evidence of P.W. 1 it is necessary to examine the evidence of PW-2 the injured witness. The learned Trial Judge at para 14 of the judgment understands that the evidence of the injured witness stands on a higher footing than that of the other witnesses. He also understands that the injured witness will not exculpate the real accused and implicate another accused falsely. Having stated that, the learned Trial Court chooses not to believe PW-2 who is an injured witness merely because other eye witnesses could not be believed. Even assuming for a moment the other eye witnesses could not be believed, that could never be a ground for disbelieving the injured witness who clearly implicates the accused. The learned Trial Court Proceeds as if it is a murder case where the identity of the accused is in doubt. The evidence of PW-2 who is an injured witness stares in the face of the Court and it has been brushed aside by the Trial Court on erroneous grounds.
Case Referred: AIR 1988 SC 2154
( 1 ) THE State being aggrieved by the judgment of the Trial Court dated 7. 11. 1997 in S. C. No. 40/94 in acquitting the accused respondent for an offence punishable under Section 307 of I. P. C. has preferred this appeal against acquittal.
( 2 ) THE prosecution case in brief is that there were some differences between the family of PW Nos. 1 to 5 and PW-7 on the one hand and the accused and his father on the other hand. On 29. 8. 93 at about 4. 30 p. m. PW-2 was passing in front of the house of the accused and the accused is alleged to have abused PW-2 in tulu language. Thereafter, PW-2 went to his house and reported to his mother about the incident. Thereafter, PW-2 after about 20 minutes, left his house to go the shop of PW-6 near the junction of moodabidri-Shirthady road. After sometime, PW-2 noticed that the accused was chasing PW-2 with an axe in his hand. On seeing the accused, PW-2 took to his heels and when PW-2 was near the daivadakallu situated on Moodabidri-shirthady road, the accused assaulted PW-2 with the axe on the back of his head. On account of the blow sustained by him, PW-2 fell down at the spot. Thereafter the accused assaulted PW-2 on his nose, chin, and on his legs. The said assault was according to the prosecution, witnessed by pws 3,4,5, 6 and 8 apart from PW-7. Looking at the condition of pw-2, PW-7 brought him to Alva Health Centre, Moodabidri in an autorickshaw. The police arrived at Alva Health Centre and recorded the complaint of PW-1 as per Exhibit P1. PW-2 was removed to k. M. C. hospital in a car for better treatment.
( 3 ) IT is the case of the prosecution that after PW-2 was admitted in the Alva Health Centre, PW-12 P. S. I. was informed about the same on phone. He immediately came to Alva Health Centre and thereafter recorded the complaint of PW-1 as per Exhibit P1. In the meantime, PW-2 had been shifted to K. M. C. Hospital, Manipal. PW- 12 thereafter returned to the Police Station along with the complaint ex. P. 1. On reaching the Police Station, PW-12 the P. S. I. on the basis of the complaint Ex. P. 1 registered a case in Crime No. 91/93 for an offence under Section 307 IPC against the accused and issued F. I. R.
( 4 ) PW-13 is the Doctor at Manipal who examined PW-2 on 29. 8. 93 at 8. 30 p. m. PW-13 states that PW-2 (the patient) was referred to him from Alva Nursing Home from Moodabidri. On examination, he found the following injuries:-"1. There was a transverse laceration measuring 1 having the depth of the bone situated over the left thigh. 2. There was a laceration over the right thigh measuring 1 x 1. 3. There was a laceration over the neso-labial fold measuring 1 and it was bone deep. 4. There was a laceration over the chin measuring 1 with bone deep. 5. There was a laceration over the left side of the forehead measuring 1 and underneath bones had been exposed. 6. There was a laceration over the right parietal region measuring 1 and it was bone deep. 7. There was a laceration over the volt on the head measuring x. 8. There was a laceration over occipital region measuring x. 9. There was a fracture of the body of the right mandible. 10. There was fracture of the right macilla. 11. There was a fracture of right zygomatic complex. The wound certificate given by the Doctor PW-13 is marked as exhibit P-8. He also states that the axe MO-3 can cause these injuries.
( 5 ) WHEN a specific question was asked in the cross examination that MO-3 could only cause incise wounds, the Doctor has denied the suggestion and stated that it is possible that MO-3 can cause lacerated wounds.
( 6 ) THE complaint was admittedly given by PW1who is not an eye witnesses. Both in his evidence as well as in the complaint pw-1 states that he came to know that his nephew PW-2 was attacked by an axe by Vishwanatha S. Anchan ( the accused) and that PW-2 sustained grievous injuries. He came to know about this incident from one Naveen who is PW-7. PW-1 further states that the said Naveen (PW-7
