IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.8700 OF 2016 BETWEEN:
L J MALATHI D/O JANARDHANA, AGED ABOUT 45 YEARS, C/O NARAYANAPPA, NANJAMMA BUILDING, CHIKKAJALA, BANGALORE NORTH-562157 ... PETITIONER (BY SMT : L J MALATHI, PARTY-IN-PERSON) AND 1. STATE OF KARNATAKA BANGALURU P.S. PUBLIC PROSECUTOR, DEVANAHALLI.
2. PADMA D.M.
W/O NARASAPPA, NO.146, BAGALUR VILLAGE, BENGALURU NORTH BENGALURU.
(IMPLEADED AS PER ORDER DATED 9.11.2017) ... RESPONDENTS (BY SRI: DILDAR SHIRALLI, HCGP FOR R1; R2-SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH ANNEXURE-A IN S.C.NO.15013/2014 VIDE JUDGMENT DATED 5.12.2015 PASSED BY THE V ADDL. DIST. AND S.J., DEVANAHALLI, BENGALURU (R) DIST.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard petitioner/party-in-person and learned HCGP for respondent No.1. Respondent No.2 is served and unrepresented.
2. Perused the records.
3. In respect of the same occurrence, a case and counter case have been registered. Case registered at the instance of the petitioner in Crime No.228/2013 has culminated in a charge sheet and the matter is pending before the Trial Court in C.C.No.2723/2015 for the offences under Sections 447, 323, 392, 504 r/w.34 of IPC.
Case registered at the instance of the second respondent in Crime No.227/2013 has been investigated and charge sheet was filed against the petitioner herein for the offences under Sections 307, 323, 324, 392, 448, 504 r/w.34 of Indian Penal Code. Petitioner moved an application under Section 239 of Cr.P.C. seeking discharge and considering the said application, the learned Sessions Judge by order dated 5.12.2015 discharged the petitioner of the offence under Section 392 of Indian Penal Code and directed continuation of the proceedings in respect of the offences punishable under Sections 447, 323, 324, 504, 307 of Indian Penal Code.
4. The petitioner/party-in-person submits that she has been falsely implicated in the alleged occurrence. The second respondent and her men were the assailants. The second respondent (A2) along with other accused (A1, 3 & 4) trespassed into the house of the petitioner and caused grievous injury to the petitioner, but yielding to the pressure of respondent No.2, a false charge sheet has been laid against her. It is her submission that the materials collected by the investigating agency do not make out the ingredients of any of the offences alleged against her much less the offence under Section 307 of Indian Penal Code. Wound certificate, relied on by the prosecution, does not indicate any grievous injury. There is an inordinate delay in examination of the victim which has not been considered by the trial Court resulting in miscarriage of justice and thus seeks to quash the proceedings initiated against her.
5. Learned HCGP appearing for respondent No.1-State has argued in support of the impugned action contending that the material collected by the investigating agency prima facie disclose ingredients of the above offences. The Trial Court has considered all these aspects in a proper perspective and therefore, there is no reason to interfere with the impugned order.
6. Upon hearing the parties and on going through the material on record, there seems to be no dispute regarding the fact that in respect of the same occurrence, case and counter case has been registered by the police. On considering the material on record, it is noticed that the trial court has already discharged the petitioner of the charge under Section 392 of Indian Penal Code. However, insofar as charge under Section 307 of Indian Penal Code is concerned, I do not find any material on record to substantiate the said charge. The contents of the wound certificate relied on by the petitioner indicate that the victims were examined by the medical officer only on 17.12.2013 i.e. more than 2½ months from the date of incident. There were no injuries on her body and the wound certificate recites that the medical officer found only vague tenderness over the chest and vague tenderness over the other parts of the body. All these injuries are certified as simple in nature. The wound certificate relating to one Susheelamma-CW2 mentions that she had sustained an injury on the operated scar with excessive bleeding and strangulation mark over her neck with little abrasions. Though these injuries were certified to be grievous in nature, the same cannot be reconciled with the weapon alleged to have been used in the commission of the offence. According to the prosecution alleged assault was made with a steel utensil. There is no indication in the charge sheet whether it was a sharp edged weapon or any weapon which was used by the petitioner with an intention and knowledge to cause death of the witness. On the other hand, the circumstance brought out in the charge sheet clearly indicate that the petitioner was a lone woman whereas, four members of the family of the second respondent participated in the occurrence.
Therefore, in the absence of any clear material to show that during the occurrence the petitioner herein has made an attempt on the life of respondent No.2 and has used any weapon with an intention to cause bodily injury which is likely lead to death of any of the victims, in my view, there is no basis to frame charge under Section 307 of Indian Penal Code. Learned Sessions Judge has failed to advert his mind to the facts of the case and appears to have carried away by the statement of the witnesses.
8. Having regard to the overall circumstances of the case, in my view, the material on record is not sufficient to prosecute the petitioner for the alleged offence under Section 307 of Indian Penal Code. However, insofar as the other charges levelled against the petitioner under Sections 447, 323, 324, 504 of Indian Penal Code are concerned, I find sufficient material on record to substantiate these charges. Moreover, a counter case having been registered against respondent No.2 and other accused in respect of these occurrence, the matter should go for trial in respect of these offences. To this extent, the petition deserves to be allowed.
Accordingly, the petition is allowed in part. Charge sheet laid against the petitioner for the offences under Section 307 is quashed. The charges framed against the petitioner for the offences under Sections 447, 323, 324, 504 of Indian Penal Code are maintained. Since all these charges are triable by the learned Magistrate, the Sessions Court shall transfer the file to the jurisdictional Magistrate. The learned Magistrate dealing with the counter case, shall try both the cases in accordance with the guidelines/procedure laid down by the Hon’ble Supreme Court in Nathi Lal - vs – State of U.P.(1990 SCC (Cri) 638) which is followed by the Full Bench of the High Court of Karnataka (Circuit Bench at Dharwad) in Crl.A.No.971/2005 dated 19.12.2011 (ILR 2012 KAR 509).
Sd/- JUDGE rs