IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO. 721/2012 BETWEEN Prakash Naik S/o Reddynaik Aged about 30 years R/o Nandibevur Village Harapanahalli Taluk Davangere District.
(By Sri. S. G. Rajendra Reddy - Advocate) AND State by Harapanahalli Police Station Reptd. By S.P.P.
High Court Building Bangalore.
(By Sri. Showri .H.R, HCGP) ... Petitioner ... Respondent This Criminal Revision Petition is filed under Section 397 r/w Section 401 of the Code of Criminal Procedure, praying to, set aside the judgment and order dated 18.05.2012 concerned to petitioner passed by the II-Additional Sessions Jude, Davangere in Crl. Appeal No.156/2010 and acquit the accused.
This Criminal Revision Petition Coming on for Hearing, this day, the court made the following:
ORDER This petition is filed challenging the judgment rendered by the II Addl.Sessions Judge, Davanagere in Crl.A.No.156/2010 modifying the judgment of conviction and order of sentence rendered by the Court of JMFC, Harapahalli in C.C.No.862/2008 dated 10.11.2010 for the offence punishable under Sections 504, 323, 326, 506 r/w 34 of IPC.
2. The brief facts of the prosecution case is that on 22.9.2008 at about 8.00 AM in Nandibevur Tanda, CW- 4 Gogibai was in her parents house. Accused No.1 being the husband of Gogibai came to their house and started quarreling with his wife Gogibai. When CW.1 Chandyanaik came forward to pacify the issue, accused No.1 assaulted on his leg by the handle of Axe and thereby caused grievous injuries. Accused No.2 and 3 also assaulted on CW.1 by their hands. All the accused abused CW.1 and CW.4 by using filthy language and threatened them with criminal intimidation.
3. In this context, a complaint was lodged before the Police by the complainant and crime came to registered for the offence punishable under Sections 504, 323, 326 and 506 r/w 34 of IPC. Subsequent to the registration of crime, the IO thoroughly investigated the case and laid the charge sheet in C.C.No.862/2008.
4. Thereafter, the trial Court framed charges against the accused persons, but they did not plead guilty but claimed to be tried. Subsequently, in order to substantiate the case, the prosecution in all examined PW.1 to PW.11 and got marked documents as per Ex.P1 to P6 and also marked M.O.1. Subsequently recording of incriminating statement as contemplated under Section 313 of Cr.P.C as where the accused persons denied the truth of the prosecution case. But the accused did not come forward to adduce defense evidence and also did not produce any documents on their behalf. The Trial Court after hearing of the arguments advanced by the prosecution and so also the defense counsel, passed the impugned judgment of conviction and order of sentence convicting the accused persons for the offence punishable Sections 323 and 326 r/w 34 of IPC and acquitted them for the offence punishable under Section 504 and 506 r/w 34 of IPC. Further, they were sentenced to pay a fine of Rs.500/- for the offence punishable under Section 323 of IPC and in default of payment of fine amount, to undergo SI for a period of 15 days. Further, the accused were sentenced to undergo SI for a period of 3 years and to pay a sum of Rs.2,000/- each for the offence punishable under Section 326 of IPC and in default of payment of fine amount, to undergo SI for a period of one month. Out of the fine amount, a sum of Rs.6,500/- was ordered to be paid to complainant – Sri Chandyanaika who was the injured person as contemplated under Section 357 of Cr.P.C.
5. Aggrieved by the said judgment and order of conviction and sentence, the accused persons preferred an appeal in Crl.A.No.156/2010. The first Appellate Court vide judgment dated 18.5.2012 allowed the appeal in part by confirming the conviction under Section 326 of IPC and modifying the substantial sentence of SI by imposing 6 months and to pay fine of Rs.2,000/- instead of three years of SI and to pay a fine of Rs.2,000/-. Hence, this petition by the petitioners/accused against the judgment rendered by the Court below.
6. Heard learned counsel for the petitioners and learned HCGP for the respondent – State. Perused the entire records.
7. Learned counsel for the petitioners contends that the impugned judgment is contrary to law and facts and also the circumstances of the case. He contends that the substantial portion of the judgment of the Appellate Court contained narration of the prosecution story and referring to the evidence of prosecution witnesses. Further, the trial Court has hardly made any evaluation, analysis or scrutiny of evidence in a proper perspective manner.
8. He contends that there is delay in lodging the complaint and submits FIR before the jurisdictional Magistrate, which delay has been utilised by the complainant and others to concoct and foisted case against the accused persons. Further, PWs.2 and 3 said to be the independent eye witnesses and PWs.4 and 5 being the panch witness to the fulcrum of spot mahazar have not supported the case of the prosecution. At the time of the incident, accused No.1 was not armed with any deadly weapons. Further, the medical evidence runs contrary to the oral evidence. It is his further contention that the PW.7 – Doctor who treated the injured is not an Orthopedician but he was an eye specialist. Hence, the opinion of the Doctor has no relevance.
9. It is further contended that the trial Court has seriously erred in not appreciating the attendant circumstances, which are favourable to the defense, though circumstances are strong enough to render the prosecution theory, as false, improbable and unnatural. The sentence imposed by the Courts below is disproportionate to the offence alleged and the evidence on record has not been appreciated in a proper perspective manner which has resulted in miscarriage of justice to the case of the petitioners. On all these grounds, learned counsel for the petitioners seeks interference of this Court and to set-aside the impugned judgments rendered by the Courts below.
10. Per contra, learned HCGP for the respondent – State contends that the prosecution has placed sufficient evidence to prove the guilt of the accused for the offence punishable under Sections 323, 326 r/w 34 of IPC. On appreciation of oral and documentary evidence available on record, the prosecution has proved the guilt of the accused for the aforesaid offences. PW.1 Chandyanaik has sustained injuries on his leg. As per the oral and medical evidence his knee bone has fractured. The medical evidence also disclose that injury No.1 is grievous in nature. Accused No.1 has assaulted on CW.1 by using handle of Axe which is a dangerous weapon and he has taken the treatment in the hospital for more than 20 days. Though there are minor discrepancies and contradictions in between the oral evidence of prosecution witnesses, but the same is not a ground for rejection of the overall evidence. The impugned judgment does not call for interference of this Court. Therefore, the petition being devoid of merits, is liable to be dismissed.
11. In this context of the contentions as taken by learned counsel for the petitioner and so also, learned HCGP for the State, it is not in dispute that the complainant and the accused are said to be relatives. PW.1 - Complainant is no other than the father-in-law of accused No.1. PW.8 – Gogibai is the wife of Accused No.1 and she is the daughter of PW.1 Chandyanaik and PW.6 – Lalibai. As per the case of prosecution, the incident took place in the house of PW.1. When PW.1 Chandyanaik came to pacify the quarrel between accused No.1 and PW.8-Gogibai, said to his wife accused No.1 assaulted PW.1 by the handle of Axe and other two accused have also assaulted with their hands. Further, the accused have abused them by using filthy language and also threatened with dire consequence.
12. Ex.P1 is the complaint, Ex.P2 and P3 are the statements of PWs.2 and 3, Ex.P4 is the spot mahazar, Ex.P5 is the wound certificate issued by the Doctor and Ex.P6 is the FIR, M.O.1 is the handle of Axe.
13. PW.1 is an injured person and aged 65 years.
Moreover, accused No.1 is the son-in-law of PW.1. When he came to pacify the quarrel between accused No.1 and PW.8 Gogibai, accused No.1 has assaulted him with handle of Axe on the right leg. In this connection, PW.1 has taken treatment in the hospital for a period of 25 days as an inpatient. But in the cross-examination of PW.1, it was suggested that the daughter of PW.1 got operated for family planning without the consent of her husband/Accused No.1. Further, it was suggested that PW.1 had fell down on the rock area therefore, he sustained injuries on his leg. But the same was denied by him. Therefore, there appears some contradiction in the evidence of PW.1. But the trial Court believed the oral testimony of PW.1 and convicted the accused.
14. PW.6 is the mother of PW.8. PW.8 Gogibai is the wife of Accused No.1. She has stated in her evidence that when there was some altercation took place between accused No.1 and herself, PW.1 came to pacify the quarrel. At that time, accused No.1 assaulted on his leg by handle of Axe. She has denied the suggestion that she has given false information to the hospital authorities saying as at the time of family planning operation which was done without the consent of Accused No.1 being her husband, PW.6 Lalibai has stated in her evidence that accused No.1 assaulted on CW.1 by hands and Axe and she has specifically stated that her husband’s leg was fractured. The trial Court observed that she is an aged and uneducated woman but has specifically narrated all the facts of the incident. Based upon the oral testimony of PWs.6 and 8, the trial Court convicted the accused persons for the aforesaid offences.
15. PW.7 is the Doctor who has treated PW.1 for his injuries on right leg. On examination of X-ray report and other reports of Davanagere Hospital, he has issued wound certificate as per Ex.P5. As per the wound certificate, Injury No.1 is grievous in nature. In the cross-examination he has stated that he is an eye specialist and not an Orthopedic Doctor.
16. PWs.2 and 3 are the independent eye witnesses. According to their evidence, they also tried to pacify the quarrel. But they have turned hostile to the case of prosecution. This aspect has been lost sight of the trial Court while convicting the accused persons as contended. PWs.4 and 5 are the mahazar witnesses. They have stated the spot mahazar as per Ex.P4 and have been conducted in their presence also identified their signature but they have not specifically stated that the police have seized MO.1 – Handle of Axe in their presence. Both of them have turned hostile to the case of prosecution.
17. PWs.9 and 10 are said to be official witnesses.
The oral evidence of the official witnesses are supported to the case of prosecution. The trial Court held that all the accused with a common intention have committed the offence. The Trial Court without noticing the inconsistencies and contradictions find place in the evidence on record, convicted the accused persons for the offence punishable under Sections 323 and 326 of IPC and sentenced to pay of Rs.500/- for the offence under Section 323 of IPC and in default to payment of fine, to undergo the SI for period of 15 days. Further, the accused persons were sentenced to undergo SI for a period of 3 years and to pay fine of Rs.2,000/- each for the offence punishable under Section 326 of IPC and in default to pay the fine, to undergo SI for period of one month. As there was no sufficient evidence to prove the ingredients of Sections 504 and 506 of IPC, the trial Court acquitted the accused persons for the said offences, consequently dilute the offence under Section 326 of I.P.C.
18. The judgment of the trial Court was challenged by the accused before the Appellate Court in Crl.A.No.156/2010. The Appellate Court vide judgment dated 18.05.2012 partly allowed the appeal and modified the judgment of conviction by setting aside the conviction for the offence under Section 323 of IPC, but confirmed the conviction for the offence under Section 326 of IPC and sentenced to undergo SI for six months and to pay fine of Rs.2,000/-.
19. At a cursory glance of the evidence of the prosecution, the Courts below have failed to notice that there was delay in lodging the complaint and that PWs.2 and 3 said to be the independent eye witnesses and PWs.4 and 5 being the panch witnesses to the fulcrum of spot Mahazar – Ex.P4, have turned hostile to the case of prosecution. The Courts below have hardly made any evaluation, analysis or scrutiny of evidence in a proper perspective manner. The trial Court ought to have seen the discrepancies in the oral testimony of the prosecution witnesses.
20. The relationship of the complainant and accused is not in dispute. Accused No.1 is no other than the husband of PW.8 – Gogibai. PW.1 is the complainant and father of PW.8. PW.6 is the mother of PW.8. PWs.2, 3, 4 and 5 have turned hostile to the case of prosecution. There are lot of contradictions in between the oral evidence of prosecution witnesses. It is said that the incident has taken place in a spur of moment in front of the house of PW.1 – Chandyanaika. There is no cogent and consistent evidence adduced on behalf of the prosecution that the accused No.1 had an intention to commit the alleged offence and cause fracture as indicated in the wound certificate of PW-7. The sentence imposed by the Appellate Court, in my opinion, appears to be disproportionate to the offence alleged. Therefore, under the peculiar facts and circumstances of the case as well as the totality of circumstances as narrated in the theory of the prosecution, I deem it just and proper that this is a fit case for intervention of the impugned judgments passed by the Courts below.
For the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER The Criminal Revision Petition filed under Section 397 r/w 401 of Cr.P.C. is allowed in part.
Consequently, the impugned judgment rendered by the Appellate Court in Crl.A.No.156/2010 dated 18.5.2012 modifying the judgment of conviction and order of sentence rendered by the trial Court in C.C.No.862/2008, is modified as under:
The judgment of the Appellate Court insofar as it relates to convicting the accused persons for the offence punishable under Section 326 of IPC and sentencing them to undergo SI for a period of 6 months is hereby set-aside. But in the interest of justice, the order of sentence to pay fine amount of Rs.2,000/- each, shall remain intact.
The said fine amount shall be payable to the complainant-PW1 Sri.Chandyanaik who is the injured person, on proper identification. If the said amount is already deposited before the trial Court, the same shall be paid to Sri Chandyanaik-PW1, being the complainant.
Sd/- JUDGE DKB