IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL No.543 of 2010 c/w CRIMINAL REVISION PETITION No.731 of 2010 & CRIMINAL REVISION PETITION No.1131 of 2009 IN CRL.A.No.543 of 2010 BETWEEN:
THE STATE OF KARNATAKA, BY ATTIBELE POLICE, BANGALORE RURAL DISTRICT.
(BY SRI S.T. NAIK, HCGP) AND:
1. GOWRISHA, S/O NARAYANAPPA, MAJOR.
2. NARAYANAPPA, S/O LATE RAMAIAH, AGED ABOUT 56 YEARS, (Appeal abates against R-2) (BOTH ARE RESIDING AT BIDARAGUPPE VILLAGE, ANEKAL TALUK) (BY SRI S.B. TOTAD, BSPS ASSOCIATES) ... APPELLANT ... RESPONDENTS THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT OF ACQUITTAL DATED 23.11.2009 PASSED BY THE PRESIDING OFFICER, FTC-II, BANGALORE (R) DISTRICT, BANGALORE IN CRL.A.No.37/2007 ACQUITTING THE RESPONDENT/ ACCUSED No.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 447 & 504 AND RESPONDENT/ ACCUSED No.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 504 OF IPC.
IN CRL.R.P.No.731 of 2010 BETWEEN:
THE STATE OF KARNATAKA, BY ATTIBELE POLICE, BANGALORE RURAL DISTRICT.
(BY SRI S.T. NAIK, H.C.G.P.) AND:
1. GOWRISHA, S/O LATE NARAYANAPPA, MAJOR.
2. NARAYANAPPA, S/O LATE RAMAIAH, AGED ABOUT 56 YEARS, (Revision Petition abates against R-2) (BOTH ARE RESIDING AT BIDARAGUPPE VILLAGE, ANEKAL TALUK) (BY SRI S.B. TOTAD, BSPS ASSOCIATES) ... PETITIONER ... RESPONDENTS THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO ENHANCE THE SENTENCE OF ACCUSED No.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC AND IMPOSE SENTENCE AGAINST ACCUSED No.2 OF THE OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC IN CRL.A.No.73/2007 PASSED BY THE SESSION JUDGE, FTC- II, BANGALORE, DATED 23.11.2009 BY ALLOWING THIS CRL.RP.
IN CRL.R.P.No.1131 of 2009 BETWEEN:
GOWRISH, S/O NARAYANAPPA, AGED ABOUT 32 YEARS, RESIDING AT BIDARAGUPPE VILLAGE, ANEKAL TALUK, BANGALORE RURAL DISTRICT.
(BY SRI S.B. TOTAD, BSPS ASSOCIATES) AND:
STATE BY ATTIBELE POLICE. (BY SRI S.T. NAIK, H.C.G.P.) ... PETITIONER ... RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 23.11.2009 PASSED BY THE PRESIDING OFFICER, FAST TRACK-II COURT, BANGALORE RURAL DISTRICT, BANGALORE IN CRIMINAL APPEAL No.37/2007, MODIFYING THE CONVICTION JUDGMENT DATED 9.5.2007 IN C.C.No.627/2005 PASSED BY THE ADDITIONAL CIVIL JUDGE (JR.DVN) & JMFC, ANEKAL.
CRL.A.No.543 of 2010 CONNECTED WITH CRL.R.P.No.731 of 2010 AND CRL.R.P.No.1131 of 2009 HAVING BEEN HEARD AND RESERVED ON 18.01.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT Since all these three cases arise out of the common judgment of conviction and sentence dated 23.11.2009, passed by the Sessions Judge, Fast Track Court-II, Bengaluru Rural District, in Crl.A.Nos.37/2007 and 73/2007, modifying the order dated 09.05.2007, passed by the Additional Civil Judge (Jr.Dn.), Anekal, in CC No.627/2005, they are heard together and disposed off by this common judgment.
2. Criminal Appeal No.543/2010 is filed by the State against the judgment dated 23.11.2009 passed by the Sessions Judge, Fast Track Court-II, Bengaluru, in Crl.A.Nos.37/2007 and 73/2007 whereby, the Sessions Judge allowed in-part the appeal filed by the respondents- accused in Crl.A.No.37/2007 and acquitted accused No.2 of the offences punishable under Sections 447 and 504 of IPC and also acquitted accused No.1 of the offence punishable under Section 504 of IPC.
Criminal Revision Petition No.731/2010 is preferred by the State against the judgment of both the Courts below seeking enhancement of the sentence passed against accused No.1 for the offence punishable under Section 326 of IPC and also to impose sentence against accused No.2 for the offence punishable under Section 326 of IPC.
Criminal Revision Petition No.1131/2009 is filed by Gowrisha-accused No.1 against the judgment of conviction and sentence dated 23.11.2009 passed by the District and Sessions Judge, FTC-II, Bengaluru, in Crl.A.Nos.37/2007 and 73/2007 confirming the order of conviction and sentence against him under Section 326 of IPC.
3. For the sake of convenience, the ranks of the parties before the Trial Court are retained.
4. The factual matrix of the prosecution case before the Trial Court is that one Manjunatha-PW.1, lodged a complaint before the Attibele Police, on 12.02.2005, alleging that his grandfather had purchased a site measuring 30x10 ft. in Khanesumari No.146 of Bidaraguppe village, in the year 1959. Ever since, they are in possession and enjoyment of the said property. Accused No.1-Gowrisha, who claims to be the grandson of one Ramaiah, the erstwhile owner, objected for throwing waste in the said site by the mother of the complainant- PW.1. On this background, on 12.02.2005, when the mother of the complainant was tethering cows in the said land, accused No.1 abused the mother of the complainant in vulgar language and pushed his mother to the ground. The complainant came to the spot and while he was enquiring, accused No.1 tried to assault him with a chopper. When his younger brother, PW.2- Narayanaswamy interfered, the said chopper came in contact with the hand of PW.2 and he sustained injury on his fingers and on his leg. PW.2 was shifted to the hospital and took treatment. It is further alleged that accused No.2, father of accused No.1, also participated in the assault. Thus, a case was registered against the accused in Crime No.25/2005 for the offence punishable under Section 324 of IPC and after investigation, the Police filed charge sheet against both the accused for the offences punishable under Section 447, 324, 326, 504 and 506 of IPC. The accused were tried and the prosecution examined six witnesses as PWs.1 to 6, got marked five documents as per Exs.P.1 to P.5 and one material object MO.1-chopper. The Trial Court convicted accused Nos.1 and 2 for the offences punishable under Section 447, 326, 504 of IPC and acquitted them of the offences punishable under Section 324 and 506 of IPC. They were sentenced to pay fine of Rs.200/-, in default, to undergo simple imprisonment for ten days for the offences punishable under Sections 447 of IPC. Accused No.1 was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.2,000/-, in default, to undergo simple imprisonment for a period of one month for the offence punishable under Section 326 of IPC. Accused Nos.1 and 2 were sentenced to pay fine of Rs.200/- in default to undergo simple imprisonment for ten days for the offence punishable under Section 504 of IPC.
Being aggrieved by the said judgment of conviction and sentence passed by the Trial Court imposing sentence of six months as against accused Nos.1 and 2 for the offences punishable under Section 447, 326 and 504 of IPC, the State preferred an appeal in Crl.A.No.73/2007 under Section 378 of Cr.P.C before the Sessions Judge, FTC-II, Bengaluru Rural District and accused Nos.1 and 2 also filed Crl.A.No.37/2007 challenging their conviction and sentence passed by the Trial Court. Both the appeals were clubbed together and were disposed off by judgment dated on 23.11.2009 dismissing Crl.A.No.73/2007 filed by the State and the appeal in Cri.A.No.37/2007 filed by the accused Nos.1 and 2 was allowed in-part. Accused No.1 was acquitted of the offence punishable under Section 504 of IPC and confirmed the sentence against accused No.1 for the offence punishable under Section 326 of IPC and acquitted accused No.1 for the offence punishable under Section 447 and 504 of IPC.
The State filed Criminal Appeal No.543/2010 being aggrieved by the dismissal of the appeal filed by the State in Crl.A.No.73/2007 under Section 378 of IPC acquitting accused No.2 for the offence punishable under Section 447 and 504 of IPC and also acquitting accused No.1 for the offence punishable under Section 504 of IPC by allowing Crl.A.No.37/2017 in-part. The State also filed Criminal Revision Petition No.731/2010 challenging the order dismissing Crl.A.No.73/2007 and not enhancing the punishment on various grounds and prayed for enhancement of punishment as against accused No.1 and also to impose sentence against accused No.2 for the offence punishable under Section 326 of IPC.
Gowrisha-Accused No.1 also filed Criminal Revision Petition No.1131/2009 as against confirming the judgment of conviction and sentence passed against accused No.1 for the offence punishable under Section 326 of IPC.
5. Heard learned counsel on both sides and perused the records.
6. Learned counsel for the accused contended that there was a civil dispute between the complainant and the accused and there is no independent witness examined by the Trial Court. Due to enmity, a false case has been registered against the accused persons. There is no grievous injury sustained by PW.2. There is no X-Ray submitted to the Court. The Doctor, who treated the injured in a private hospital prior to taking treatment in the Government Hospital, was not examined. There is material contradiction in the evidence of the witnesses. While a civil dispute is pending between the parties, a false case has been registered against the accused. Looking to the material on record, the Trial Court has convicted the accused persons, which is illegal. There were no proper findings given by the Trial Court for coming to the conclusion that the accused is guilty of the offence.
Hence, prayed for setting aside the judgment of conviction passed against accused No.1.
7. Per contra, the learned High Court Government Pleader contended that the trial Court in spite of the evidence led by P.Ws.1 to 4 acquitted accused No.2 for the offences punishable under Sections 324 and 504 of IPC. Even in spite of finding guilt against the accused for the offence punishable under Section 326 of IPC, only six months imprisonment was awarded, which is not correct. Since the punishment under Section 326 of IPC extends to imprisonment for life, the sentence imposed by both the Courts below against accused No.2 in respect of the offence punishable under Section 326 of IPC requires to be modified. Though, accused No.2 was present and assaulted, the same is not correct. There is sufficient material placed on record to show the accused Nos.1 and 2 assaulted P.W.2. Therefore, he has prayed for allowing the petition and to convict the accused persons for all the offences charged by the trial Court and to enhance the punishment under Section 326 of IPC and also contended that there is no illegality in convicting the accused persons by the trial Court for the offence punishable under Section 326 of IPC and hence, prayed for rejecting the petition filed by petitioner – accused No.1.
8. On perusal of the LCR and the evidence on record, PW.1-Manjunath, the complainant lodged a complaint to the Police as per Ex.P.1 on 12.02.2005 alleging that his grandfather had purchased the site in dispute bearing Khanesumari No.146, measuring 30x10 ft. in the year 1959. From that day, they were in possession and enjoyment of the property. They stored livestock in the said property. That on 12.02.2005 accused No.1-Gowrisha being the grandson of Narayanappa, who sold the property to them, came and questioned the mother of PW.1 for dumping grass in the said land. Accused No.1 abused the mother of the complainant in filthy language and pushed her down. When the same was questioned by PW.1, accused No.1 tried to assault him with a chopper and when the same was prevented by his brother Narayanaswamy- PW.2, PW.2 sustained injury on his fingers. He also sustained some injuries on his leg and requested the Police to take action against accused No.1 and also at the end of the complaint, he has stated that the father accused No.2 also assaulted him. Based on the complaint, the Police registered a case in Crime No.25/2005 for the offence punishable under Section 324 of IPC. The injured-PW.2 is said to have gone to the Government Hospital in Attibele and obtained treatment and the Police went to the spot, prepared the panchanama/mahazar. On the same day, they have arrested accused No.1 and on the voluntary statement, they recovered MO.1 chopper under the panchanama Ex.P.5. Accused No.2 was produced before the Court and he was put in judicial custody and later released on bail. The Investigating Officer received the wound certificate of the injured, recorded the statement of the witnesses and filed the charge sheet against both the accused for the offences punishable under Sections 324, 326, 447, 504 and 506 of IPC. The accused was released on bail. Later, charges were framed against them and they pleaded not guilty and claimed to be tried. The prosecution in all examined six witnesses as PWs.1 to 6, got marked five documents as per Exs.P.1 to P.5 and MO.1 as chopper. After hearing both sides, the learned Trial Judge found accused Nos.1 and 2 guilty and convicted accused No.1 for the offences punishable under Sections 447, 326 and 504 of IPC and acquitted both the accused under Section 324 and 506 of IPC.
9. On perusal of the evidence of PW.1, he has supported his complaint filed before the Police and he also identified Ex.P.1 as the complaint. Nowhere PW.1 has stated that accused No.2 also assaulted, but he says that accused No.1 assaulted him with a chopper and when PW.2 came for preventing, he sustained injuries on his hand. Though, he has not stated in his complaint, but in the evidence, he has stated that accused No.2 caught hold of PW.2 and accused No.1 assaulted him. It is important evidence. Though he has not stated in the complaint, in the cross-examination, learned counsel for the accused disputed the assault and pushing off the mother of the complainant, and PW.1 clearly confirmed regarding identifying MO.1 and the assault by accused No.1. But nothing is elicited through him in the cross-examination as regards the assault on PW.2 by accused No.1 with the chopper. PW.2-Narayanaswamy who was also injured has clearly stated that when the mother of the complainant was pushed down and when PW.1 questioned, accused No.1 tried to assault PW.1 and he escaped sustaining injuries on his leg and when PW.2 tried to rescue his brother, accused No.2 caught hold of him and abetted accused No.1 to assault PW.2, and accused No.1 assaulted him on his hands and his legs. Therefore, he sustained injuries. In the cross-examination, except the dispute regarding the land, learned counsel for the accused has not brought any evidence to disbelieve the evidence of PW.2 in respect of the incident and assault on PW.2. Though, there are some discrepancies in the evidence of PWs.1 and 2, PW.1 stated that accused No.1 tried to assault him and when PW.2 came to rescue him, PW.2 sustained injuries. PW.2 stated that accused No.1 directly assaulted him on his hand. The fact remains that due to the assault by accused No.1, PW.2 sustained injuries. The entire cross-examination is in respect of the civil dispute of the land in question, and there is nothing to disbelieve the evidence of PWs.1 and 2. To corroborate the evidence of PWs.1 and 2 and the mother of PWs.1 and 2, PW.3 also deposed that, on that date, accused No.1 pushed her and when her son PW.1 came there to rescue her, accused No.1 tried to assault PW.1 and he escaped and sustained injury on the leg. When PW.2 came there to rescue PW.1, accused No.1 assaulted him with chopper, due to which, PW.2 sustained injuries on his hand. CWs.4 and 5 rescued them. In the cross-examination, it was elicited that there was a quarrel between the accused and the complainant in respect of the said land and denied the incident, whereas PW.3 admitted that the weapon like MO.1 may be available in the houses of the villagers and there is no special mark on the MO.1. In view of the said admission, the entire evidence of PW.3 cannot be discarded. Merely, similar weapons are available in the houses of the villagers that itself is not a ground to discard the evidence of PW.3. On the other hand, the evidence of PW.3 corroborates the evidence of PWs.1 and 2 in respect of the assault on her son PW.2 by accused No.1. Though this witness stated that the accused threatened to do away with the life, the same was not stated by PWs.1 and 2. Therefore, her evidence corroborates only in respect of assault by accused No.1 on PW.2. PW.4-Narayanappa, who is the eyewitness, has stated that there was a quarrel between the complainant and the accused. He found PWs.1 to 3 on the spot and accused No.1 tried to assault PW.1 and when PW.2 prevented, he sustained injuries on the hand. Himself, and CW.4 pacified the quarrel and he has identified MO.1 as chopper. The evidence of PW.4 was not at all cross- examined by the learned counsel for the accused. The evidence of PW.4 also went unchallenged who is an independent witness who supported the evidence of PWs. 1 to 3. The PW.5-Dr.Rukmini deposed that, when she was working as a Medical Officer in Attibele Government Hospital, at about 12.15 p.m., PW.2-Narayanaswamy came to her having sustained injuries in the assault. On examining, she found five injuries. The first injury on the right ring finger measuring 1½ x 0.1 cm; injury No.2- contusion on the right thump finger; injury No.3- injury on the left thumb finger measuring 2 x 0.5 cm, which is a sutured wound; injury No.4-injury on left middle finger measuring 1.5 x 0.5 cm and injury No.5-right hand thumb bone fracture, on taking X-Ray. She has examined injury No.2 by taking X-Ray and opined that injury No.2 is grievous in nature as it was a sutured proximal Phalanxes and other injuries were simple in nature. Accordingly, she issued Ex.P.4-wound certificate. In the cross-examination, she has admitted that if a person falls on a sharp edged weapon, the injuries found on the hand of PW.2 may occur.
10. Learned counsel for the accused contended that there is no proper medical evidence to prove the injuries sustained by PW.2 and there is no evidence in respect of the injuries of PW.2 by Radiological Report to prove injury No.2 was grievous in nature and even though PWs.1 and 2 stated PW.1 also sustained injuries on his leg, but no medial certificate was produced before Court. As per the evidence of PW.5, the injury was already sutured and they obtained treatment in some other hospital before coming to the government hospital. The said doctor was not examined. Therefore, it is contended that benefit of doubt should be given to the accused. Of course, the evidence of PW.5 goes to show that injury No.3 was sutured wound, but remaining injury Nos.4 and 5 were incised wound on the middle and ring fingers. Injury No.2 was a swelling on the thumb, but it was stated as fracture on the proximal Phalanxes. On perusal of Ex.P.4, the Doctor though stated in her evidence that she examined PW.2 by taking X-Ray and gave an opinion as grievous injury, but there is no reference available in Ex.P.4 to show that PW.2 was referred to Radiology Department and X-Ray was taken. The X-Ray number is not mentioned in the certificate.
Though this witness says that she herself took X-Ray and on the basis of the X-Ray she gave her opinion, Ex.P.4 does not reveal anything about taking X-Ray. Apart from that, while leading evidence before the Court, the Medico- Legal Register (MLC) was not brought to the Court and produced before the Court to show that the injured was referred to Radiological Department and took X-Ray. Normally, all the injuries mentioned in the certificate must have mention in the MLC Register. Therefore, mere contusion or swelling found on the right thumb finger itself cannot be said that the said injury is grievous in nature and it was a fracture. Of course, fracture wound comes within the definition of Section 320 of IPC, but without any document, X-Ray report even without X-Ray film, the evidence of PW.5 opining that injury No.2 is grievous in nature, cannot be acceptable. But, as per the evidence of PW.5-Doctor, PW.2 was already treated in some private hospital and then came to the Government hospital. There is material contradiction in the evidence of PWs.2 and 5.
Therefore, injury No.2 cannot be held as grievous injury, on the other hand all the injuries are simple in nature.
11. On perusal of evidence of PW.6-Investigating officer, who has deposed in his evidence, that on 12.02.2005 at 10.00 a.m., PW.1 came and gave a written complaint and he has registered the same in Crime No.25/2005 and issued FIR and he has sent the injured along with HC 699 to the Government Hospital and on the same day, he prepared spot panchanama as per Ex.P.2. Then on the next day i.e. on 13.02.2005, PW.1 came and gave further statement, then he recorded the statement of PWs.2 to 5 and on the same day, he arrested accused No.2, recorded voluntary statement and seized MO.1 from the house of the accused under Ex.P.5. Thereafter, he has secured the wound certificate from the Government Hospital. On the evidence of PWs. 5 and 6, Ex.P.5 seizure panchanama was prepared by the Investigating Officer after recording the voluntary statement of accused No.2 between 2 and 2.30 p.m. Thereafter, he secured Ex.P.4, the wound certificate from the hospital. While, preparing Ex.P.5-panchanama, at 2.00 p.m., the Investigating Officer mentioned the offence is punishable under Sections 324, 326 and 506 of IPC without referring to Section 34 of IPC. But he has mentioned or inserted Section 326 of IPC prior to securing the wound certificate which reveals injury-2 as grievous injury. Even on perusal of the statement recorded by the Investigating Officer, none of the witnesses have stated that the injury sustained by PW.2 was a grievous injury. The evidence of PW.6 goes to show that he secured the injury certificate only after preparing Ex.P.5-panchanama until then the Investigating Officer does not know about the grievous injury mentioned by the medical officer in Ex.P.4. Such being the case, without any evidence or statement before him, the Investigating Officer has inserted Section 326 of IPC in the panchanama and prior inserting Section 326 of IPC, the Investigating Officer has not sent any intimation to the Magistrate for adding Section 326 of IPC. There is no requisition produced or marked by the Investigating Officer. Therefore, without any basis, the Investigating Officer has voluntarily adding Section 326 of IPC prior to securing the wound certificate is not correct, which shows that the Investigating Officer has shown much interest in adding Section 326 of IPC. This aspect of the evidence was not properly appreciated by both the Courts below.
12. Now, coming to the involvement of accused No.2, though PW.2 has not stated in the complaint that accused No.2 caught hold of PW.2, but he has improved this version in his evidence and other witnesses have also not clearly stated that accused Nos.1 and 2 came to be spot, picked up the quarrel. Therefore, the Trial Court has come to the conclusion that the presence of accused No.2 was not at all found in the place of occurrence and the Trial Court has rightly acquitted accused No.2 for the offence punishable under Section 324 and 506 of IPC. However, it has wrongly convicted accused No.1 for the offence punishable under Section 326 of IPC. As already stated above, without X-Ray report and medical evidence, PW.5 giving an opinion stating that injury No.2 is grievous in nature is not correct. On the other hand, this Court finds all the five injuries as simple in nature. This aspect was not properly considered and appreciated by both the Courts below, which is erroneous. Even in the further statement of PW.1, statement of PW.3 and statement of PW.2, they have stated PWs.1 and 3 have not sustained any injuries. That being the case, the question of convicting the accused for the offence punishable under Section 506 of IPC and without mentioning anything about overt act and uttering of any vulgar words by the accused, question of convicting the accused for the offence punishable under Sections 504 and 506 of IPC does not arise. When the civil dispute is pending between the parties, merely the name of the father of PW.1 is mentioned in Ex.P.3-Tax Extract, convicting the accused based on the said document for trespassing into the land of the complainant is not correct. Therefore, without any evidence on record, accused Nos.1 and 2 cannot be convicted for the offence punishable under Sections 447, 326 and 504 and 506 of IPC. Therefore, the First Appellate Court has rightly acquitted accused No.2 for the offences punishable under Sections 447 and 504 of IPC and also acquitted accused No.1 for the offence punishable under Section 504 of IPC. Therefore, the judgment of acquittal passed by the First Appellate Court does not call for any interference by this Court. Therefore, the appeal filed by the State as against the acquittal of accused No.1 cannot be interfered with and Criminal Appeal is liable to be dismissed.
13. The Appeal against accused No.2 already stands abated due to his death during the pendency of this appeal.
14. As regards the revision petition filed by accused No.1 in Crl.R.P.No.1131/2009, in view of my findings that the wound certificate issued by PW.5 opining that injury No.2 is grievous in nature is not correct, on the other hand, the evidence of PWs.1 to 3 which corroborates with each other in respect of accused No.1 assaulting PW.2 and causing simple injuries on his fingers and the independent witnesses PW.4, who supported the case of the prosecution was not all cross-examined by learned counsel for the accused and though MO.1 was seized at the instance of accused No.2, but all the eyewitnesses have categorically stated accused No.1 assaulted with chopper- MO.1 and identified the same. Therefore, the evidence of PW.5 can be acceptable only in respect of the injury found on PW.2 as simple in nature. Therefore, the evidence of the eyewitness, injured witness, the medical evidence and the Investigating Officer corroborates with each other in respect of the assault on PW.2 by accused No.1 with chopper, which caused simple injury and which falls under Section 324 of IPC for voluntarily causing injury by deadly weapon or means. There is nothing to disbelieve that the evidence of PWs.1 to 4 is in respect of previous enmity with respect to a land dispute and earlier PW.2 filed a case in respect of the same dispute. Therefore, the findings given by the Courts below are not correct in holding that the injury was grievous in nature and without any basis.
On the other hand, the offence committed by accused No.1 falls under Section 324 of IPC. Therefore, the judgments of both the Courts below require to be modified by this Court and the offence would attract Section 324 of IPC and not Section 326 of IPC. Therefore, the revision petition filed by accused No.1 deserves to be allowed in-part and liable to be convicted for the offence punishable under Section 324 of IPC.
15. For the foregoing reasons, the appeal filed by the State in Criminal Appeal No.543/2010 is dismissed. The judgments of acquittal passed by both the Courts below are confirmed.
In view of the finding that the injuries on PW.2 are all simple in nature which attracts offence under Section 324 of IPC, once this Court modifies the findings of the Courts below under Section 326 of IPC into 324 of IPC, the question of enhancing the punishment does not arise. Therefore, the revision petition filed by the State in Criminal Revision Petition No.731/2010 is liable to be dismissed. Accordingly, the Criminal Revision Petition No.731/2010 for enhancement of punishment is dismissed.
The Criminal Revision Petition No.1131/2009 filed by the accused/revision petitioner is allowed in-part.
The accused No.1/revision petitioner is convicted for the offence under Section 324 of IPC and sentenced to pay fine of Rs.10,000/-, in default, to undergo six months simple imprisonment. Out of the fine amount, Rs.5,000/- is ordered to be payable to PW.2 as compensation.
Send the LCR and copy of judgment/order to the Courts below for taking further course of action.
SD/- JUDGE mv