IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF MAY, 2017 :BEFORE:
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRIMINAL REVISION PETITION NO. 1355/2010 BETWEEN:
1. B. M. MUTHEGOWDA, S/O B. R. MULLEGOWDA, AGED ABOUT 43 YEARS.
2. H. N. GIRISHA, S/O NAGAPPA GOWDA, AGED ABOUT 30 YEARS.
3. H. N. NANDEESHA, S/O NAGAPPA GOWDA, AGED ABOUT 28 YEARS.
ALL ARE AGRICULTURISTS & R/O BILOGALA VILLAGE BOGASE POST, KHANDYA HOBLI, CHIKMAGALUR TALUK AND DISTRICT.
… PETITIONERS (BY SRI. CHANDRASHEKAR R. P., ADV. FOR SRI. C. H. HANUMANTHARAYA, ADV.) AND:
THE STATE OF KARNATAKA, BY ALDUR POLICE STATION, CHIKMAGALUR TALUK, CHIKMAGALUR DISTRICT. ... RESPONDENT (BY SRI.P. M. NAWAZ SPP-I AND SRI S. SHANKARAPPA & ASSTS. ) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DTD 22.09.2008 PASSED BY THE PRL.C.J., (JR.DN.) & JMFC., CHIKMAGALUR IN C.C.NO.3131/2001 AND CONFIRMATION ORDER DTD.23.09.2010 PASSED BY THE P.O. FTC, CHIKMAGALUR IN CRL.A.NO.94/2008 AND ACQUIT THEM OF ALL THE CHARGES.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 05.04.2017, COMING ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This Revision Petition is preferred calling in question (1) the judgment passed in CC No.3131/2001 dated 22.9.2008 by the Principal Civil Judge (Jr. Dn.) and JMFC, Chickmagalur, in convicting and sentencing the accused for the offences punishable under sections 324, 326, 504 and 506 Part II read with Section 34 of IPC and (2) the judgment passed by the Fast Track Court at Chickmagalur in Crl.A. No.94/2008 dated 23.09.2010 in confirming the judgment and sentence passed by the trial Court for the offences under Sections 324. 326, 504 of IPC.
2. The trial Court has sentenced the petitioners/accused to undergo imprisonment for a period of one year and to pay fine of Rs.1,000/- each with a default sentence of 30 days simple imprisonment for the offence punishable under section 324 of IPC; further sentenced the petitioners/accused to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2,000/- each with a default sentence of two months simple imprisonment for the offence punishable under section 326 of IPC; sentenced the petitioners/accused to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each with a default sentence of 30 days simple imprisonment for the offence punishable under section 504 of IPC; sentenced the petitioners/accused to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each with a default sentence of 30 days simple imprisonment for the offence punishable under section 506 of IPC.
3. The petitioners herein have challenged the judgment of conviction and sentence passed by the trial Court in Crl.A. No. 94/2008, wherein the first appellate court has modified the judgment of conviction and sentence passed by the trial Court. The first appellate court has acquitted the petitioners for the offence punishable under section 506 read with Section 34 of IPC. However, confirmed the judgment and sentence passed by the trial Court sofar as the other offences are concerned. The victim-Devarajegowda (PW.1) also filed an appeal against the same judgment and sentence for enhancement of the sentence in Crl. A. No.163/2009. The said appeal was dismissed.
4. The First Appellate Court has clubbed both the appeals filed in Criminal Appeal No.94/2008 and 163/2009 and has passed a common judgment.
5. Before adverting to the grounds urged by the learned counsel for the petitioners, it is just and necessary to have a brief factual matrix of the case on hand.
6. For the purpose of convenience, the ranks of the parties before the trial Court are retained.
7. A person by name Devarajegowda PW-1, who is no other than the brother of A1 has lodged a complaint as per Ex.P1 making allegations that PW-1 Devarajegowda and PW-3 Rudregowda and A1 are full blood brothers. PW-2 Smt. Latha is the wife of the complainant Devarajegowda. A2 and A3 are close friends of A1 and residents of the same village i.e., Bilagula village, Kandya Hobli, Chickmagalur Taluk. It is alleged that there has been a long standing enmity between PW-1 and A1, on the allegations that PW-1 has taken a larger extent of share in the partition between the brothers. Therefore, Accused No.1 had grinding axe against PW1 and his family members. In this background, it is alleged that on 3.9.2001, at about 6.00 p.m., when PW-1 Devarajegowda and his wife Latha while proceeding to their house after getting down from a bus in their village, at that time, all the accused persons with a common intention to cause grievous injury to them armed with choppers (kattis) in their hands, picked up quarrel with PW-1 and particularly A2 Nandeesh had squeezed the private part of PW-1 and caused pain, A-1 who was holding the katti has assaulted on the right hand fingers of PW-1, as a result, he sustained fracture to his little finger and injury to his ring finger. A2 hit PW-1 with a katti on his left hand and shoulder, back, hands and legs. At that time, PW-2 Latha came to the rescue of her husband, then the accused persons have torn her saree and blouse and outraged her modesty and A1 also assaulted PW-2 with a katti on her hand and made her to fall on the ground and after felling on the ground, kicked her with their legs. All the accused persons have also threatened the complainant and his wife with dire consequences of killing them. In the mean time, the other witnesses PWs.3, 4 and 5 have also came to that particular spot and rescued the complainant and his wife. All the accused persons on seeing the said persons throw away the weapons on the spot itself and ran away. PWs.1 & 2 were taken to Government Hospital, Chickmagalur, where PW.7, the doctor treated them and thereafter a complaint came to be lodged by PW-1 in the Hospital itself. After thorough investigation, the concerned police i.e., Aldur Police have laid a charge sheet against the accused persons.
8. The accused persons were arrested on 8.9.2001 and they were released on bail vide orders dated 10.09.2001. After filing of the charge sheet, the court has secured the presence of the accused and framed charges against them for the offences punishable under sections 324, 326, 504 and 506 read with Section 34 of IPC. The prosecution in order to prove the guilt of the accordingly examined as many as ten witnesses as PWs.1 to 10 and got marked Exhibits P1 to P9 and MOs.1 to 5. The accused persons were also given an opportunity to lead their evidence by examining them u/s.313 of Cr.P.C. The accused did not choose to lead any other evidence. After hearing the arguments on both sides, the trial Court held the accused guilty and sentenced them accordingly as detailed supra.
9. Being aggrieved by the above said judgment and sentence, the accused 1 to 3 have preferred an appeal in Crl.Appeal No.94/2008 and the victim also preferred an appeal in Crl. Appeal No.163/2009 for enhancement of the sentence passed against A1 to A3. The appellate court after considering in detail the grounds urged therein has come to the conclusion that the trial Court has not committed any serious legal error in convicting and sentencing the accused, for the offences punishable under sections 324, 326 and 504 of IPC. However, the first appellate court found materials insufficient so as to maintain the judgment of conviction and sentence so far as the offence punishable u/s.506 of IPC is concerned. Therefore, the first appellate court has set aside the judgment of conviction and sentence sofar as the said offence is concerned, however, confirmed the judgment and sentence passed sofar as the other offences are concerned. The first appellate court has dismissed the Criminal Appeal No.163/2009. The victim being satisfied with the judgment of first appellate court has not challenged the said order.
10. The learned counsel for the petitioners seriously contended that all the witnesses are interested witnesses. The trial Court has not properly appreciated their evidence with care and caution. Further, the learned counsel contended that there are discrepancies in explaining the incident by the eye-witnesses and the injured witnesses. The court has not considered these differences, contradictions and omissions in the evidence in proper perspective. It is further contended that the medical evidence is lacking in this particular case. In spite of that, the trial Court and the first appellate court have believed the version of the doctor to seek corroboration to the evidence of PWs.1 to 4. Therefore, the courts below have failed to look into the cross examination of the witnesses in their proper perspective. Hence, both the courts have committed serious legal error in convicting and sentencing the accused persons. Therefore, the said judgments are liable to be set aside.
11. The learned counsel though argued seriously on the merits of the case, however, without prejudice to his arguments, has also submitted that both the courts have not properly considered the relationship between the parties and also the mitigating circumstances available in the case and sentenced the accused persons with heavy punishment which was not warranted, and it would have taken lenient view and considered the offences and imposed more fine and would have sentenced them with fine only. Therefore, he requests the court, if the court for any reason come to the conclusion that the judgment of conviction have to be confirmed, the sentence have to be modified by imposing more fine and removing the substantive sentence if imprisonment.
12. Per contra, Sri P.M. Nawaz, learned SPP-I has submitted that, though the relationship between the parties is admitted, nevertheless, the nature of the offences and the pre-meditation, coming to the spot with the kattis and assaulting PWs.1 & 2 by the accused persons shows the gravity of the offence. Therefore, no leniency can be taken to reduce the sentence already imposed by the trial Court and the first appellate court. He also contends that the trial Court and the first appellate court have in detail on facts considered the case of the prosecution and as well the accused and by giving appropriate logical reasoning have arrived at a conclusion that the accused are guilty of the offences alleged against them. Therefore, there is no reason to interfere with the above said judgments.
13. After hearing both the counsels, the only point that would arise for the consideration of this court is:
“Whether the Petitioners have made out any reasonable or substantive ground to interfere with the judgment of conviction and sentence passed by the trial Court as confirmed by the appellate court?”
14. Before adverting to the merits and demerits of the case, it is just and necessary to bear in mind the powers of the revisional court. The Hon'ble Apex Court in a decision reported (2012) 9 SCC 460 between Amith Kapoor Vs. Ramesh Chander & another, wherein the Hon'ble Apex Court has held that -
“Section 397 of Cr.P.C. vests the court with power to call for and examine the records of an inferior court for the purpose of satisfying itself as to the legality and irregularity of any proceedings or order made in a case. The object of this provision is to set right the patent defect or an error of jurisdiction or law. There has to be a well founded error and it may not be appropriate for the court to scrutinize the orders which upon the face of them bear a token of careful consideration and appear to be in accordance with law. Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous and there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The Revisional jurisdiction is a very limited one and cannot be exercised in a routine manner. Normally, the court should keep in mind that it should not interfere with the factual aspects discussed, considered and reasoned out by the trial Court or the appellate court.”
15. Bearing in mind the above said principle, it is just and necessary for this court to just re-look into the materials on record.
16. The prosecution evidence discloses that PWs.1 & 2 are the injured persons. They have categorically stated as to what exactly happened on that particular day. They have admitted the relationship with A1. It is alleged that on the date, time and place of incident, all the accused persons came with kattis in their hands and assaulted PW-
1 on his right hand near little finger and also near left elbow and A2 assaulted with a chopper on his back and on the hands and legs. A3 caught hold the private part of PW-1. At that time, PW-2 came there and A1 also assaulted her with a chopper and all the accused persons have outraged her modesty and kicked her with their legs etc., Thereafter, they were shifted to the Hospital by other witnesses.
17. During the course of cross examination of these witnesses, nothing more has been elicited except suggesting that because of the previous ill-will hatred-ness with regard to landed properties, a false case has been foisted against them. Of course, some contradictions and omissions are elicited with regard to the blood stained clothes and also tearing of the shirt of PW1 etc., as those items being not produced, but the core of the prosecution case is not disturbed. Likewise, the evidence of PW-3 Rudregowda, who is another brother of A1 has also fully supported the case of the prosecution. PW-4 Puttegowda also supported the case of the prosecution. All of them have categorically stated about the incident as to how it has happened on that particular day and also they withstood the cross examination. Though there are some discrepancies in the cross examination of these witnesses, the trial Court and the first appellate court have in detail discussed the arguments addressed the circumstances elicited in the course of cross examination and given their logical reasoning as to how PWs.1 to 4 are believable witnesses. Therefore, the court has drawn an inference that their evidence cannot be easily brushed aside merely because there are certain contradictions and omissions, which are elicited in the course of cross examination.
18. The evidence of the doctor PW-7 has been in detail considered by both the courts below. It is worth to note here the evidence of the doctor PW-7, who has categorically stated that he has examined PW-1 and he observed that there was -
(1) A cut wound over the dorsum of right hand with fracture of shaft of 4th and 5th metacarpal bones of right hand and fracture of bone of prox phalanx of right ring finger;
(2) Exterior tender injury of right ring finger (3) C.L.W. over the ulnar aspect of right hand near little finger, (4) CLW over the right leg;
(5) Two abrasions over the left side of the back;
(6) CLW over the left forearm and (7) Abrasions – lenear over right thigh.
PW-7 has stated that the first injury is grievous one and other injuries are simple in nature. Accordingly, he has issued the would certificate as per Ex.P-4. Likewise, he has also stated that PW-2 has also sustained injuries as per Ex.P-5. It is suggested to the doctor that if a person falls down, while going on the motorcycle, there are chances of sustaining the above said injuries. Though the doctor has admitted the same, there is no material shown to the court that on that particular day, PWs.1 & 2 were traveling on a motor cycle. But, it is the case of the prosecution that on that day, at the time of the incident, they got down from the bus and while proceeding to their house, the incident happened, which fact is corroborated by PW.3 and PW.4 also. Therefore, the suggestion made by the accused persons remained as a mere suggestion and there is absolutely no corroboration to the suggestions made to the doctor,. However, the above said suggestion fortifies the sustaining of the injuries by PWs.1 & 2. The court has to see which one of the story is supported and corroborated by other materials on record. As I have already said that PWs. 3 & 4 who are the eye-witnesses, have also supported the presence of the accused persons and stated that the accused were holding kattis in their hands and assaulted PWs.1 & 2. Therefore, the version of the doctor about the injuries on PWs.1 & 2 is fully corroborated by the evidence of PWs.3 & 4.
19. PWs.5 & 6 are the witnesses to the Mahazars.
PW-5 in fact is the witness to seizure of MOs.1 to 3, which were seized by the Police. This is also corroborated by the evidence of PWs.1 to 4 who have stated that after the incident, the accused persons had thrown away the weapons and ran away from the spot. Therefore, the evidence of PW-5 with reference to the seizure of MOs.1 to 3 also cannot be disbelieved. PW-6 Shivakumar is the person who shifted the injured persons to the Hospital. PW-6(A) Jayaramegowda, who is the panch witness for the seizure of shirt, pant, saree and blouse of PWs.1 & 2 as per Ex.P-2. PW-8 Basavegowda, who has registered a case in Crime No.150/2001, dispatched the FIR Ex.P7 to the JMFC. PW-9 Raviprasad is the person who investigated the matter and laid the charge sheet.
20. Even on re-looking into the evidence of PWs.1 to 4, with the evidence of the doctor (PW.7), I do not find any wrong appreciation by the trial Court and as well as the first appellate court. When the trial Court and the first appellate court on two occasions had opportunity to appreciate the same evidence and they have concurrently came to the conclusion that the prosecution has proved the guilt of the accused and there is no illegality or perversity committed by the trial Court and the first appellate court, there is no room for this court to interfere with such judgment of conviction and sentence passed by the trial Court as confirmed by the first appellate court. Therefore, I do not find any strong reasons to interfere with the factual aspects and the judgment of conviction and sentence rendered by both the courts for the offences punishable under sections 324, 326, 504 read with Section 34 of IPC.
21. Coming to the factum of sentence passed by the first appellate court and the trial Court, as rightly contended by the learned counsel that the trial Court and the first appellate court have not properly appreciated the mitigating circumstances in the case. The relationship between PWs.1, 2 and A1 is not disputed as they are brothers. It is also an admitted fact that there has been long standing dispute between the brothers with regard to the partition of the family property. If there was a long standing dispute between the parties, it cannot be easily brushed aside that both the parties are seeking opportunity to inflict each other. Further, added to the above, there are no previous bad antecedents alleged against the accused persons. As on the date of the incident, the age of the accused No.1 was 36 years, A2 was 23 years and A3 was 21 years. It appears, the accused persons are married and their spouses are depending upon them. The nature of assault even if it is taken into consideration only one grievous injury is occurred on PW-1 to his little finger of the right hand.
There is no allegations that the accused persons have made any attempt to kill PWs.1 & 2 as there is no allegations in the complaint or in the evidence that the accused persons at any point of time selected any vital part of the body of PWs.1 & 2 for assaulting them. This clearly discloses that, in order to wreck vengeance and also to inflict some injury to PWs.1 & 2, on the motive that PW1 has taken larger extent in the family property, the accused persons might have committed such an offence and caused injuries. Though injury No.1 caused shows that it is grievous in nature, but the nature of injury sustained shows that it is not so serious because the doctor has stated that there was union of the small fracture and PW-1 has not suffered any mal union of the fracture. The other injuries shown to have been simple in nature. The relationship between the parties must have been taken into consideration by the trial Court and the first appellate court. If the accused persons are sentenced to undergo severe imprisonment, there are no chances of the parties getting restoration of their relationship in future. The cleavage in the relationship would continue even to the children of A1 and PWs.1 & 2. Therefore, in my opinion, the trial Court and the first appellate court must have taken into consideration all these mitigating circumstances. Further, added to the above, the accused Nos.1 to 3 and PWs.1 & 2 and PWs.4 & 5 are all related to each other and they are residing in the same village. They have to see their faces everyday. Therefore, in my opinion, the first appellate court and the trial Court should not have sentenced them leniently considering the injuries sustained by PWs.1 & 2. Therefore, in my opinion, the sentence passed by the trial Court and the first appellate court requires to be modified taking some lenient view with regard to the sentence of imprisonment by imposing heavy fine on the accused persons for the aforesaid offences.
22. As it is evident from the records, A1 to A3 were arrested on 8.9.2001 and the bail order was passed on 10.09.2001. Therefore, they were in custody during the course of investigation for a period of 3 days. Therefore, in my opinion, if fine amount is enhanced and sentence of imprisonment is reduced, it would meet the ends of justice. However, the sentence should not be a boon to the accused persons nor a burden. Hence, for the above said reasons, I proceed to modify the judgment of the trial Court and the first appellate court by partly allowing this Revision Petition. Accordingly, the following order is passed:
ORDER The Revision Petition is partly allowed. The judgment of conviction and sentence passed by the trial Court and confirmed by the first appellate court for the offences punishable under sections 324, 326 and 504 read with Section 34 of IPC is hereby maintained. The sentence is modified under the above said provisions in the following manner:
(1) Accused Nos.1 to 3 are sentenced to undergo simple imprisonment for a period of one month and to pay a fine of Rs.10,000/- each with a default sentence of three months simple imprisonment for the offence punishable under section 324 read with Section 34 of IPC.
(2) Accused Nos.1 to 3 are sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.15,000/- each with a default sentence of six months simple imprisonment for the offence punishable under section 326 read with Section 34 of IPC.
(3) Accused Nos.1 to 3 are sentenced to pay a fine of Rs.5,000/- each with a default sentence of two months simple imprisonment for the offence punishable under section 504 read with Section 34 of IPC. The substantive sentences of imprisonment shall run concurrently, but not the sentence of fine. Set-off is given to the period of imprisonment if any already undergone.
Out of the fine amount deposited, a sum of Rs.70,000/- shall be paid to PWs.1 & 2 equally (Rs.35,000/- each) as compensation. The rest of the amount shall be confiscated to the State as litigation expenses.
Sd/- JUDGE PL*