IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.496/2019 BETWEEN:
Prasad @ Hariprasad S/o Mahabala Acharya Aged about 38 years R/at Deepanagudde Yellampalli Nilavara Village, Udupi Taluk Udupi District – 576 213. … Petitioner (By Sri. Prakash Salmani, Advocate) AND:
State of Karnataka By Udupi City Police Udupi Rep. by SPP High Court of Karnataka High Court Building Bengaluru – 560 001. … Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., pleased to set aside the judgment and order of sentence passed by the Principal District and Sessions Judge, Udupi in Crl.A.No.57/2014 dated 04.12.2018 and confirming the judgment and sentence in C.C.No.333/2018 dated 03.09.2014 pased bya the Additional Civil Judge and JMFC, Udupi for the offence punishable under Sections 341, 324, 326, 506 read with Section 34 of IPC.
This Criminal Revision Petition is coming on for Admission, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused No.2 challenging the judgment passed by the Court of Principal Sessions Judge, Udupi, in Crl.A. No.57/2014 dated 04.12.2018, whereunder, the judgment of conviction and order of sentence passed by the Court of Additional Civil Judge and J.M.F.C., Udupi, in C.C. No.333/2013 dated 03.09.2014 was confirmed, by dismissing the appeal.
2. I have heard the learned counsel for the appellant/accused No.2 and the learned High Court Government Pleader for the respondent-State.
3. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. The gist of the case of the complainant before the Court below is that on 07.10.2017 at about 8.30 p.m., when PW.2-Giriraj was proceeding on his motorcycle, at that time, the accused persons restrained his movement and accused No.1 assaulted with iron rod on his chest, back and accused No.2 also assaulted him with iron rod on his right ear and when Jayaraj-the complainant came to rescue PW.2, at that time, accused No.1 also assaulted the complainant with iron rod on his left shoulder and caused grievous injuries and accused Nos.1 and 2 have stated that they will not leave them and threatened them with dire consequences. Hence, a complaint has been filed. On the basis of the said complaint, a case has been registered and after investigation, charge-sheet has been filed. Learned Magistrate took the cognizance of the offence and secured the presence of the accused. After serving the copy of the charge-sheet material to the accused, they have been heard regarding framing of charge and they have pleaded not guilty and claims to be tried. As such, the case was fixed for trial.
5. In order to prove the case of the prosecution, it has got examined 11 witnesses as PWs.1 to 11 and got marked 8 documents as per Exhibits P1 to P8. Thereafter, the accused were examined under Section 313 of Cr.P.C. by putting incriminating material as against them. They have denied the same and they have not led any evidence and no documents have been marked on their behalf. After hearing the learned counsel appearing for the parties, the trial Court has convicted the accused for the offences punishable under Sections 341, 324, 326 and 506 read with Section 34 of the Indian Penal Code (hereinafter, in short it may be called as “IPC”). Challenging the legality and correctness of the same, accused Nos.1 and 2 have filed appeal before the Sessions Judge, Udupi and the same has been dismissed by confirming the judgment of the trial Court.
6. The main grounds urged by the learned counsel for the petitioner/accused No.2 are that the judgments of Courts below are contrary to the facts and circumstances and evidence on record. Learned District Judge has not assigned any good reasons and has erroneously confirmed the judgment of the trial Court. It is his further submission that, the petitioner and the complainants are relatives and there was property dispute between them. Only with an intention to grab the property, a false complaint has been registered. It is further submitted that, all the witnesses including the injured and the complainant are interested and related witnesses and the said evidence is only interested testimony. The trial Court ought to have discarded their evidence and ought to have acquitted the accused. It is his further submission that, under such circumstances, much importance ought not to have been given to the evidence of prosecution. It is his further submission that, the trial Court has not properly appreciated the evidence of accused and by perusing the other materials has wrongly convicted the accused. It is his further submission that, as on the date of the alleged incidence, there is no electricity facility where the alleged incident had taken place and in the absence of light, it was very difficult for anybody to identify the accused. In that light, the Court below and the first appellate Court have not properly looked into the case of the accused and has passed the judgment of conviction and order of sentence. It is his further submission that, the trial Court has not appreciated and applied the defence taken by the accused. On these grounds, he prayed to allow the petition and to set aside the impugned order.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that PW1 and PW2 are the eye witnesses to the alleged incident and they have categorically deposed about the act of the accused persons. It is his further submission that, because of the property dispute, the accused persons have obstructed the motor cycle of PW2 and thereafter they have assaulted PW1 and PW2 with iron rod and have caused grievous injuries. PW3 is also an eye witness to the alleged incident and she has also identified the accused. There is corroboration in the evidence of PW1, PW2 and PW3 and that evidence is also corroborated by the medical evidence of PW10 along with Exhibits-P7 and P8. If all the materials if they are perused, prima facie, there is material to connect the accused to the alleged crime. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prays to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including the trial Court records.
9. In order to prove the case of the prosecution, the prosecution got examined 11 witnesses. PW1 is the complainant. In his evidence, he has deposed that the accused persons were not having any good conduct and their mother had restrained them not to go to the said land, in that regard, some animosity was existing between the accused persons and the injured. He has further deposed that, on 07.12.2012 at about 8.30 p.m. when he was standing in front of his house, at that time PW2 – Giriraju made a hue and cry and immediately he saw that the accused Nos.1 and 2 by obstructing the motor cycle of his brother Giriraju were assaulting him with an iron rod on his back, chest and right ear and when he went for rescuing his brother, the accused persons assaulted him also with the same rod on his left shoulder and back and as a result of the same, PW2 fell on the ground and when they made hue and cry, his mother – PW3 and his wife Lakshmi came to the place and the accused persons by throwing the rod on the place of the incident, threatened the complainant and the injured stating that they will not spare them and as they were profusely bleeding, immediately they were taken to Pranav Hospital, Brahmavar for treatment and from there, they have been shifted to K.M.C. Hospital, Manipal. He further deposed that, he has filed the complaint as per Exhibit-P1 and that on 09.10.2012, a spot mahazar was drawn as per Exhibit-P2. During the course of cross-examination, it has been brought on record that immediately after hearing the sound, he went to the place of the incident and after he being assaulted, he has also made hue and cry along with his brother. He has further deposed that, he has seen both the accused persons assaulting his brother and other suggestions have been denied by this witness.
PW2 and PW3 have also reiterated the evidence of PW1. Nothing has been elicited to discard their evidence.
PW4 is the mother of PW1 and PW2 and she is also an eye witness to the alleged incident and she has also deposed by reiterating the evidence of PW1 and nothing has been elicited to discard the evidence of this witness.
PW5 is the seizure mahazar pancha of the material objects – MO.1 to MO.4 as per Exhibit-P2.
PW6 is also the seizure mahazar pancha to Exhibit-P2 where under MO.1 to MO.4 have been seized.
PW7 is the apprehension mahazar of the accused, as per Exhibit-P3.
PW8 is the Assistant Sub-Inspector who received the complaint as per Exhibit-P1. On the basis of the statement of PW1, he registered a case and issued FIR as per Exhibit-P4 and he also apprehended the accused persons. Further, on the same day, he visited the spot and has drawn the spot mahazar, as per Exhibit-P2 and also recorded the statement of the witnesses.
PW9 is the Doctor who examined PW2 and he has issued Wound Certificate as per Exhibit-P5.
PW10 is the Doctor who examined PW1 and he has issued Wound Certificate as per Exhibit-P7.
PW11 is the Police Sub-Inspector who is the Investigating Officer who investigated the case and filed the charge-sheet against the accused persons.
10. On close reading of the evidence of all these witnesses, it clearly goes to show that as on the date of the alleged incident, the accused Nos.1 and 2 obstructed the movement of PW2 when he was coming on a motor cycle and they have assaulted him with an iron rod and also assaulted PW1, as a result of the same, they have sustained injuries, as mentioned in Exhibits-P5, P6 and P7. Even the said evidence is corroborated with the evidence of PW9 and PW10.
11. The learned counsel for the accused- petitioner has contended that, all the witnesses who have been examined before the Court are interested and related witnesses, as such, the said evidence have to be discarded. But, it is well settled proposition of law that merely because the witnesses are interested witnesses and they are the relatives, their evidence cannot be discarded. When PW1 and PW2 are the injured witnesses, evidence of such witnesses attaches much importance who have come before the Court and submitted their evidence, it is presumed that they speak the truth, unless it is shown otherwise. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Chandrashekar and another Vs. State of Karnataka reported in 2017 (13) SCC 585. When the accused persons, victims and the eye witnesses belong to the same locality and relatives, then under such circumstances, the identity cannot be disputed. Even as could be seen from the cross- examination of the witnesses, it clearly goes to show the presence of the accused persons at the place of the incidence and the same has not been denied and even the incident has also not been denied. Under such circumstances, the evidence of PW1 to PW3 cannot be discarded. It is the well settled proposition of law that, where the witnesses are the relatives and interested witnesses, then under such circumstances their evidence has to be scrutinized very carefully, but merely because they are related, their evidence cannot be discarded. But by going through the evidence which has been produced, it has been suggested that property dispute was existing between the parties and the same will be a strong motive which has been established. Under such circumstances, merely because they are relatives, it cannot be rejected. It is also well settled proposition of law that, no false person is going to be implicated by leaving the real culprits and in that light also, the submission made by the learned counsel for the accused-petitioner does not hold good.
12. I have carefully and cautiously gone through the evidence of PW9 and PW10 as per Exhibit-P5. The injured have sustained sutured wound over right ear, contusion to right spine of scapula and one more puncture wound inferior to spine of scapula and contusion extending from 10 cm inferior to right spine of scapula and blunt injury on the chest with fracture of 6th, 7th and 8th right side ribs and he has opined that the injury No.7 is grievous in nature and other injuries are simple in nature. Exhibit-P6 also goes to show that it is a cut lacerated wound over the left arm and the said injury is simple in nature and as per Exhibit-P7, one cut lacerated wound over the right ear and fracture of right 7th, 8th and 9th ribs. That injury No.2 is opined by the Doctor as grievous in nature. Taking into consideration the injuries and the evidence, there is corroboration in the evidence of the injured eye witnesses and the Doctors who have immediately got examined the said injured persons.
13. Taking into consideration the above said evidence, I am of the considered opinion that the counsel for the petitioner-accused has not made out any good grounds so as to acquit the accused. However, the materials which has been produced by the prosecution and the evidence if it is looked into, the prosecution evidence does not satisfy the essential ingredients of Section 326 of IPC, as contemplated under law. In order to bring home the guilt of the accused under Section 326 of IPC, the first ingredient is that the prosecution has to prove that the accused must have caused grievous hurt to the person and that hurt must be voluntary and the said grievous hurt might have been contemplated under Section 320 of IPC. If Section 325 of IPC is read along with Section 326 of IPC, it indicates that if any person voluntarily causes hurt, the said injury must be simple hurt and it must be caused voluntarily. Though the ingredients of Sections 326 and 324 of IPC are one and the same, but taking into consideration the intention and gravity, they are going to differ. The gravity of the offence if it is taken into consideration with reference to Section 325 of IPC, such injury must have been caused by means of an instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal. In that regard, the provisions of Section 326 is going to be attracted. By a combined reading of these two Sections and the factual matrix, if it is taken into consideration as per the evidence of PW1 to PW3, no such weapon has been used to commit the said offence and an iron rod has been used by accused No.1, so also by accused No.2. The evidence produced in consideration of the injuries inflicted by accused persons are no doubt grievous in nature and are not likely to cause death in the ordinary course of business, so as to bring home the guilt of the accused to convict him for the offence punishable under Section 326 of IPC. In the case of Saroj Prasad Vs. State of Bihar reported in AIR 1965 SC 843, it has been laid down that the burden lies upon the prosecution to establish that the intention of the accused in causing a particular injury to the injured was of any of the three kinds referred to in Section 300 of IPC and taking into consideration the state of evidence that the Hon’ble Apex Court has converted the conviction under Section 307(2)(1) and under Section 325 of IPC. The said ratio has been laid down by taking into consideration the intention and the gravity of the offence which has been committed. Keeping in view the said ratio laid down, if the evidence of PW1 to PW3 if it is perused, it indicates that no specific overt act of the accused has been stated. Generally, that they have deposed that the accused persons have assaulted PW1 and PW2 even though Section 34 of IPC has been included, injury from which the accused caused the grievous injury to the fracture of the ribs has not been spelt out and attributed to either of the accused. A common intention to commit such assault with an intention to cause grievous injuries cannot be attributed to the one accused when the evidence itself is so vague, but however, the incident has not been disputed and the injuries have also been sustained. In such circumstances, I am of the opinion that a common intention to commit lesser offence can be attracted. So this proposition of law has been laid down by the Hon’ble Apex Court in the case of Babu Singh and others Vs. State of Haryana reported in 1995 Criminal Law Journal 2630. At para Nos.1 and 2, it has been observed as under:
“Though the appellants, three in number along with Lila Singh, stood trial under Sections 307/34 I.P.C and other ancillary offences, the trial court convicted them under Section 324/34 I.P.C for having caused injuries to Kaur Singh, Jiwan Singh and Harbans Singh, PWs. On appeal by the State, however, the conviction was altered. All the four accused were convicted under Section 307/34 IPC but Lila Singh substantially for the offence under Section 307 IPC, and were imposed sentence of two years rigorous imprisonment. On joint special leave petition to this Court, Lila Singh was declined leave whereas the appellants were granted, in view of the judgment and order of the High Court, applying Section 34 IPC.
2. We have heard learned counsel. The injury from which murderous assault could be spelt out was attributed to Lila Singh. The other injuries on the injured persons were simple in nature. It is difficult, in the facts and circumstance of this case to conclude that all the four accused had common intention of murderous assault on the PWs. It can otherwise be spelt out that they had a common intention but of a lesser offence i.e. under Section 324 IPC.”
14. The evidence produced by the prosecution if it is taken into consideration, the fact of the alleged incident has occurred without there being any premeditation. When PW2 came on his motor cycle, he has been intercepted and immediately they have assaulted him and his brother and at that time the said injuries have been caused. Even though the evidence of witnesses is consistent regarding the part played by the accused persons and the nature of injuries inflicted on them is corroborated by the medical evidence and the evidence of eye witnesses, under such circumstances, the conviction of the accused is liable to be confirmed. Though the said injuries are grievous in nature, but they are not likely to cause death, so in that light, I am of the considered opinion that the petition-accused can be given the benefit and the accused can be convicted for the offence punishable under Section 324 of IPC. In that light, by taking into consideration the above factual matrix, the petitioner-accused is convicted for the offence punishable under Section 324 of IPC. In so far as the other evidence is concerned, there is consistency to come to the conclusion that the accused persons have intercepted the motor cycle of PW2 and even though they abused they will not spare him, in that light, the conviction order passed for the offences punishable under Section 341, 324 and 506 of IPC is concerned, the same has been confirmed.
15. In the light of the discussion held by me above, the petitioner-accused is convicted for the offence punishable under Section 324 of IPC for a period of six months. In so far as the fine amount is concerned, the same is kept intact.
16. In the light of the above, the petition is partly allowed; the conviction and sentence imposed in respect of Section 326 of IPC is modified and the accused No.2 is convicted for the offence punishable under Section 324 of IPC and he is sentenced to undergo simple imprisonment for a period of six months and in so far as the conviction and the sentence passed in respect of Sections 341, 324 and 506 r/w Section 34 of IPC, same is confirmed.
Sd/- JUDGE NR/SJ