Mr. Ataulla S/O Syed Abdul Gafoor Vs. State of Karnataka - Court Judgment

K. Sreedhar Rao, J.

1. The appellant - accused No. 1 is convicted for offences punishable under Sections 342 and 326 of Indian Penal Code and sentenced to undergo simple imprisonment for three months for the offence under Section 342 I.P.C. and further undergo simple imprisonment for a period of two years and pay fine of Rs. 2,000/- for the offence under Section 326 I.P.C. The Accused No. 2 who had faced the trial is acquitted.

2. The case of the prosecution discloses that PW-1 -victim, was plying the auto belonging to A-1 on hire. There were arrears of Rs. 225/- payable by PW-1 to A-1. On 27.2.97 A-l took away the auto from the house of PW-1. Again A-1 and A-2 re-visited the house of PW-1 at 2.30 p.m. and forcibly took away PW-1 to their shed. He was tied by rope, poured acid on both the hands and was made to be in the shackled state for about two hours. Thereafter release him, PW-1 goes to the house of his brother PW-6. At about 10 p.m. in the night, PW-4 Gangadhar bring PW-1 to his house. On the next day at 9.00 a.m., PW-1 was taken to the Victoria Hospital where he was admitted and treated. On account of gangrene, both the hands are amputated. First Information Report is registered on 28.2.1997 at about 2.30 p.m. initially for an offence wider Section 324. After amputation of both the hands, a report is sent for inclusion of an offence Under Section 326 I.P.C. The police after completion of the investigation, filed charge-sheet.

3. PW-1 the victim has testified the incriminating facts to prove the prosecution case. PW-2 is the wife of PW-1, PW-3 is the younger brother, PW Nos. 4 and 5 are the neighbours, PW-6 is the elder brother. PW Nos. 7, 8, 10, 11, 13 and 14 are police officials. PW-9 and PW-12 are the doctors.

4. The counsel for the accused pointed out the following lapses in the prosecution version;

(a) After the incident by 6.00 p.m. on 23.2.997, PW-1 was set free and he goes to the house of his brother PW-6 just about 10 minutes walk. There was no impediment for PW-1 and PW-6 to complain the matter to the police and to get PW-1 treated immediately.

(b) PW-4 friend of PW1 goes to the house of PW-6 and takes PW-1 to his house at 10.00 p.m. PW-2 - wife of PW-1 and his other brothers do not take earnest steps to complain against the accused. First Information Report is lodged with unexplained delay of 21 hours.

(c) PW-2 in the evidence states that on 27.2.97, PW-1 was taken to a private doctor for treatment. Investigating Agency has not cited and examined the private doctor who treated PW-1.

(d) The conduct of PW-1 and his relatives in not taking PW-1 to a Government Hospital for a proper treatment is a very bizarre conduct and creates serious dent in their veracity.

(e) PW-6 - the brother of PW-1 in the evidence before the Court states that PW-1 visited the house with injuries, despite repeated questioning, PW-1 remained silent and did not say anything about the cause of injuries and about the offenders.

(f) The injury caused if properly treated, would not have resulted in amputation. The grievous injury suffered by PW-1 is his own making in not getting the timely treatment.

(g) PW-1 admits in the cross-examination that there was no difficulty to lodge a complaint with the police before he took treatment in the private hosptial.

5. The counsel for the accused relied on the ruling of the Supreme Court in the case of Thulia Kali v. The State of Tamil Nadu Reported in : 1972CriLJ1296 to Contend that non-examination of material witnesses is fatal to the prosecution and further relied on the decision of the Supreme Court in the case of Peddireddy Subbareddi and Ors. v. State of Andhra Pradesh Reported In reply to: AIR 1991 CRL. L.J. 391 to contend that delay in lodging the First Information Report is fatal to the prosecution case.

6.The lacunas in the prosecution version pointed out by the counsel for the appellant - accused are indeed glaring and a matter of record. It is in the evidence of both PW-1 and PW-2 that on the night of 27.2.97, PW-1 took treatment from a private doctor. The Investigating Officer has not conducted investigation to find out as to what is the nature of treatment given, the said doctor is not cited and examined. PW-1 goes to Victoria Hospital on the next day by about 9.00 a.m. and he was treated there. On the intimation given by the hospital authorities, the police come and record the statement of PW1, the F.I.R. marked at Ex.Pl. It is not explained in the F.I.R. as to why PW1 did not lodge First Information Report at the earliest.

7. The pedantic view of looking at the facts and circumstances may perhaps point out serious laches on the part of the prosecution, but, on the close scrutiny of facts and evidence vis-a-vis the realities of social life it is presumable that PW-1 who was subjected to a very horrible and ghastly treatment should have been in a state of shock although conscious and could be dumb-founded. It is pertinent to note that when PW-1 goes to the house of PW-6 -- his brother, he gets a very cold reception at the hands of his brother. In the normal course, it is expected of PW-6 that he should have taken PW-1 to hospital for treatment and would have given a moral support. But, PW-1 did not get the needed help and support from PW-6. On the other hand, a neighbour - P W-4 takes PW-1 from the house of PW-6 to the house of PW-1. When PW-1 was so gravely injured by the ghastly act, it is quite natural that PW-1 and PW-2 both would have been perplexed but in the natural way P W-1 was taken to a private hospital for immediate treatment.

8. On the next day PW-l goes to Victoria Hospital. The absence of explanation for delay in First Information Report, the non-examination of the doctor by the investigating agency are all part of bad investigation for which PW-1 should not be condemned. It is expected of an investigating Officer to have questioned to find out the reasons from PW-1 at the time of Ex.P.1 as to why he did not immediately complain the matter to the police. The Public Prosecutor who has conducted the also examination-in-chief has also not tried to elicit explanation from PW-1 for the delay. It is evident from the conduct of PW-1 and PW-2 that they perhaps never contemplated to complain the matter to the police. The police get the information through Victoria Hospital. Perhaps, out of fear of further reprisals PW-1 would not have dared to give a complaint.

9. The contention that timely treatment would have avoided greater mishap and that the grievous injuries are suffered on account of PW-l's default at the first blush may appear to be an attractive argument but on deep scrutiny it does not appear so. PW-1 had indeed visited a private doctor. It is not on record whether the private doctor gave any effective treatment to PW-l or it could be that after knowing the ghastly incident and the case being a MLC case, the private doctor could have avoided treating PW-l, At any rate, PW-l was not properly advised by any of the persons he met and interacted after the incident till he visited the Victoria Hospital. The non explanation of delay is on accountof bad investigation and bad prosecution. An element of dishonesty on the part of PW-l cannot be inferred in the context of facts and circumstances. The mere delay and laches in filing First Information Report is not a ground by itself to disbelieve the evidence of PW-1 unless it is shown that the delay is prompted by oblique and malevolent motives. In the present case, except the delay, there are no malevolent motives established to hold that the delay is fatal to the case of the prosecution.

10. Therefore, on the totality of circumstances, I find that evidence of PW-l with regard to the incident and the injuries is credible. The evidence of PW-2 and the medical evidence do corroborate the contention of PW-l and the prosecution. The trial Judge has committed grave error in imposing a lenient punishment of S.I. for a period of two years. The fine levied by the trial court is too soft and does not benefit the victim in any way. The State has not preferred any appeal for enhancement of sentence. Therefore, in an appeal filed by the accused, sentence cannot be enhanced.

11. Under the circumstances, the sentence imposed by the trial court is modified. The accused is sentenced to R.I. for a period of one year and to pay fine of Rs. 1,00,000/-, in default to undergo sample imprisonment for a further period of one year. The entire fine amount shall be payable to PW-1 as compensation.

KSRJ;

22.6.2006 Crl.A.No. 993 of 1999

ORDERS ON BEING SPOKEN TO

1. Heard the S.P.P. and the learned Counsel for the Appellant.

2. The sentence of fine ordered at the rate of Rs. 1,00,000/- is modified as Rs. 1,50,000/-. The entire amount of fine shall be payable as compensation to PWI. It is submitted that PW1 is dead. If it is so, the compensation shall be paid to his wife and children.