THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 28TH DAY OF JUNE, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.890 OF 2011 C/W CRIMINAL APPEAL NO.41 OF 2012 CRL.A.NO.890 OF 2011:
BETWEEN:
HABIB SHEIT S/O BASHIR AHMED SHEIT, AGED ABOUT 35 YEARS, OCC:BUSINESS, R/O TANK MOHALLA, II CROSS, SHIVAMOGGA. ... APPELLANT (BY SRI K.A.CHANDRASHEKARA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY THE POLICE OF KOTE POLICE STATION, SHIVAMOGGA. ... RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) ***** THIS CRL.A IS FILED UNDER SECTION 374(2) OF THE CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 25.7.2011 PASSED BY THE P.O., FAST TRACK COURT –II, SHIVAMOGGA IN CRL.A.NO.71 OF 2010 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 325 AND 326 OF IPC AND CONFIRMING THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25.1.2011 PASSED BY THE PRL.C.J., (SR.DN.) AND C.J.M., SHIVAMOGGA IN C.C.No.182 of 2008.
CRL.A.NO. 41 OF 2012:
BETWEEN:
THE STATE OF KARNATAKA BY SHIVAMOGGA KOTE POLICE, SHIVAMOGGA. ... APPELLANT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) AND:
HABEEB SHET S/O BASHIR AHMED SHET, AGED ABOUT 32 YEARS, MOBILDE SIM SALES BUSINESS, RESIDENT OF TANK MOHALLA, 2ND CROSS, SHIVAMOGGA. ... RESPONDENT (BY SRI K.A.CHANDRASHEKARA, ADVOCATE) ***** THIS CRL.A IS FILED UNDER SECTION 377 OF CRL.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL AND SET ASIDE THAT PART OF THE JUDGMENT AND ORDER DATED 25.7.2011 PASSED BY THE FAST TRACK COURT-II, SHIVAMOGGA IN CRL.A.NO.71 OF 2011 – IMPOSING INADEQUATE SENTENCE ON THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC.
THESE CRL.As COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that on 3-11-2007 at about 9.50 a.m., P.W.1 had parked his bullock cart on the way in front of the house of the accused in order to fill up the scrap materials. The accused requested P.Ws.1 & 2 to remove the bullock cart and when they refused, the accused is stated to have ditched on the nose of P.W.2 with his head causing fracture, and also assaulted P.W.2 with an iron pipe causing injury to his shoulder and forearm.
2. The complaint was lodged by P.W.1, based on which the F.I.R came to be registered against the accused for the offence punishable under Section 324 of IPC. However, after investigation the charge sheet was laid against the accused for the offence under Sections 325 and Section 326 of IPC.
3. The accused having denied the charge, the prosecution adduced the evidence of 9 witnesses to bring home the charges against the accused and relied on 7 Exhibits as per Exs.P-1 to P-7 and the M.O.-1 namely, the iron pipe used for the commission of offence as the Material Object.
4. On appreciating the evidence, the Principal Civil Judge(Senior Division), Shivamogga by order dated 25-1-2010 acquitted the accused of both the charges holding that the prosecution has failed to prove the case beyond reasonable doubt. The State carried the matter in appeal and the Fast Track Court, Shivamogga by its Judgment dated 25-7-2011 in Criminal Appeal No.71/2011 allowed the appeal and convicted the appellant under Section 325 and Section 326 of IPC and imposed the sentence of imprisonment for one year and a fine of Rs.4,000/- for the offence under Section 326 of IPC and similar sentence for the offence under Section 325 of IPC.
5. Feeling aggrieved by the impugned Judgment of conviction and sentence the accused has preferred Criminal appeal No.890 of 2011 whereas the State has come up in appeal No.41 of 2012 seeking enhancement of the sentence.
6. We have heard the learned counsel for the appellant/accused as well as the learned Additional State Public Prosecutor on behalf of the State.
7. The material evidence relied on by the prosecution in support of the charges is the testimony of the injured witnesses namely, P.W.1 and P.W.2. P.W.1 Rahamathulla and P.W.2 Mohammed Muthayar were monthly tenants under the accused. P.W.1 was running a bullock cart and P.W.2 was a scrap merchant. Both these witnesses have stated in their evidence that on the date of the incident, they were loading the material in the bullock cart in front of the house of the accused and at that time the accused ditched on the nose of P.W.2 and also assaulted on the shoulder and the forearm of P.W.1 with iron pipe. Both these witnesses have identified the iron pipe M.O.1 and have consistently stated that on account of the assault made by the accused they sustained the injuries as noted in the wound certificate.
8. The wound certificates are at Exs.P-4 and P-5.
The Doctor who issued the said certificates is examined as P.W.8. According to P.W.8, P.W.1 sustained the following injuries:
“1. Injuries to the left forearm upper 1/3rd, medial forearm.
2. Lacerated wound 1.1/2” x 1”. Fresh injury, muscle deep.
3. Fracture medial epiolle by X-ray report.
4. Age of wounds-Fresh injury, within 6 hours.”
9. In his evidence P.W.8 has clarified that P.W.1 had sustained injuries to the right forearm, but by inadvertence the same has been mentioned as left forearm in the wound certificate. In the wound certificate relating to P.W.2 the injuries are described as under:
“Fracture of Nasal bone”
According to P.W.8 the injury suffered by P.Ws.1 & 2 are grievous in nature. Relying on these documents, the learned Sessions Judge has found the accused guilty of the offence under Sections 320, 325, 326 of IPC.
10. The learned counsel for the appellant would submit that there is absolutely no evidence with regard to the intention whatsoever for the accused to cause any injuries. The circumstances pleaded by the prosecution itself indicate that the entire incident has taken place in a spur of the moment without any pre-meditation. The accused has not used any sharp edged weapons for causing injury on any vital part. It only indicates that the accused never intended to cause any grievous injuries. Assailing the genuineness of Ex.P-4 and Ex.P-5, it is argued that the prosecution has not produced any independent material to show that P.W.1 had been inpatient from 3-11-2007 to 10-11-2007, and under the said circumstances, the learned Sessions Judge was not justified in holding that the injuries suffered by P.W.1 and P.W.2 are grievous in nature.
11. The learned Additional State Public Prosecutor however submits that in view of the clear medical opinion to the effect that the injuries were grievous in nature, the conviction recorded by the Sessions court under Section 326 does not call for any interference, whereas having regard to the nature of the injuries suffered by P.W.1 and P.W.2 the punishment awarded is grossly inadequate and therefore the said sentence need to be enhanced.
12. It is seen that the wound certificate Ex.P-4 relating to P.W.1 has been issued on 3-11-2007. The evidence of P.W.8 discloses that X-ray of P.W.1 was taken only on 5-11-2007 and the said fact is also noted in the wound certificate. In view of this, if the wound certificate was issued on 3-11-2007 there was absolutely no basis for the Medical Officer to come to the conclusion that the injuries sustained by P.W.1 were grievous in nature. As the X-ray was taken subsequent to the issue of the wound certificate, a doubt arises as to the genuineness of the wound certificate as well as the nature of the injuries suffered by P.W.1.
13. On considering the entire material on record especially, the circumstances in which the alleged offence has taken place, we are of the view that the facts proved by the prosecution do not fall within the ambit of Section 326 or Section 325 of IPC. As already discussed above, P.Ws.1 and 2 themselves have narrated in their evidence that they had parked the bullock cart obstructing the road way to the accused. From the evidence of P.Ws.1 and 2, it can be gathered that P.W.1 and P.W.2 triggered the alleged incident. There is nothing on record to show that the accused brought the iron pipe M.O.1 with intention to assault or attack the accused. The relationship between the parties is also required to be taken note of. P.Ws.1 & 2 are none other than the tenants of the accused. From the evidence adduced by the prosecution, it can be said that P.W.1 and P.W.2 were equally responsible for triggering the incident. Further, the surrounding circumstances, indicate that the assault was not made with an intention to cause bleeding injury, fracture or grievous injuries. In that view of the matter, we are of the opinion that the facts proved by the prosecution attract the ingredients of the offence under Section 324 of IPC.
14. The weapon M.O.1 used for the commission of the offence is not proved to be a dangerous weapon which is used for shooting or stabbing. A reading of the evidence would only indicate that the said iron pipe was in the bullock cart of P.W.1 and it was never intended to be used as a weapon of offence. Therefore, taking into consideration all these facts and circumstances of the case, we find it appropriate to hold that the accused is guilty of the offence punishable under Section 324 of IPC.
15. For the foregoing reasons, the appeal filed by the appellant/accused in Appeal No.890 of 2011 is partly allowed and in modification of the impugned order it is held that the accused is guilty of the offence under Section 324 of IPC.
16. Having regard to the circumstances, in which the offence has taken place and especially in view of the fact that P.Ws.1 and 2 were the tenants under the accused and they themselves triggered the incident by parking the bullock cart on the way in front of the house of the accused and there being no antecedents of any criminal conduct against the accused, we do not propose to impose sentence of imprisonment on the accused. Hence, in the factual circumstances of the case the accused is sentenced to pay a fine of Rs.25,000/- each to P.W.1 and P.W.2 respectively. In default to pay the said fine, the accused shall undergo simple imprisonment for a period of 3 months.
17. On deposit or realization of the fine amount the trial court shall make over the fine amount to PWs.1 and 2 respectively at the rate of Rs.25,000/- each.
18. At this stage, the appellant’s counsel undertakes before this Court that the amount will be deposited in the trial court within a period of 6 weeks from today. His undertaking is noted.
The Lower Court Records be sent back.
Consequent to the above order, the appeal filed by the State in Criminal Appeal No.41 of 2012 is dismissed.
SD/- SD/-
JUDGE JUDGE Rsk/-