IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.296/2017 BETWEEN:
1. Sri Mahadeva S/o Mahadevu Aged about 22 years 2. Sri Peeta @ Raju S/o Nanjundegowda Aged about 25 years 3. Sri Bojaiah @ Shivaraju S/o Nanjundegowda Aged about 25 years 4. Sri Kumara S/o Govinda Aged about 23 years All are residing at R/Hallididdi Village Chikkaiahna Chatra Hobli Nanjangud Taluk-571 301.
(By Sri Shridhara K., Advocate) ...Petitioners AND:
State of Karnataka by Nanjangud Police Represented by State Public Prosecutor High Court Building, Dr. Ambedkar Veedhi, Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) ...Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the judgment and order of conviction passed against the petitioner on 13.10.2014 passed by the Principal Civil Judge and JMFC, Nanjanagudu in C.C.No.322/2010 and set aside the judgment dated 09.01.2017 passed by the IV Addl. Sessions Judge, Mysuru in Crl.A.No.219/2014 whereby confirming the judgment of the trial Court.
This Criminal Revision Petition coming on for Hearing, this day, the Court made the following:
O R D E R This petition has been filed by the accused Nos.1 to 4 challenging the legality and correctness of the judgment passed by the Court of the IV Additional Sessions Judge, Mysuru in Crl.A. No.219/2014 dated 09.01.2017 where under, the conviction and order of sentence passed by the Principal Civil Judge and JMFC Court, Nanjangud in C.C. No.322/2010 dated 13.10.2014 was confirmed by dismissing the appeal except the default sentence for the offence punishable under Section 326 of IPC and the default sentence has been modified that in default to pay fine he has to undergo simple imprisonment for a period of six months.
2. I have heard the learned counsel for the petitioners/accused and the learned High Court Government Pleader for respondent – State.
3. The factual matrix of the case as per the complaint, in the morning hours of 12.09.2009, there was some galata between the accused and the complainant. In pursuance of the same, on the same day i.e., on 12.09.2009 at about 6.00 p.m., accused persons came near the house of CW.1 for fixing the valve to the public tap and all the accused persons with a common intention picked up the quarrel with CW.1.
At that time, accused No.1 assaulted with a stone on the forehead and accused No.2 assaulted with club on the back of CW.1 and when CW.2 Aunt of CW.1 came to rescue CW.1, accused Nos.3 and 4 have wrongfully restrained by holding her and accused No.4 snatched the club from the hands of accused No.2 and assaulted on the right wrist of CW.2 Aunt of CW.1. Accused No.3 assaulted with hands on the body of CW.2 and thereby they have voluntarily caused simple hurt to CW.1 and grievous hurt to CW.2. Immediately, they have been taken to the Government Hospital, Nanjangud and subsequently, the statement of the complainant was recorded and a case has been registered. After investigation, the charge sheet has been filed.
4. Learned Magistrate took the cognizance and secured the presence of the accused and after following the formalities; the charge was read over and explained to the accused. Accused pleaded not guilty. They pleaded to be tried and as such, the trial was fixed.
5. In order to prove the case of the prosecution, it has got examined 9 witnesses and got marked Ex.P1 to P5. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. Accused have not led any evidence but however, during the course of cross-examination of the witnesses, they got marked Exs.D1 and D2 and the prosecution has also got marked MOs.1 and 2.
6. After hearing the learned counsel appearing for the parties, the trial Court hold the accused guilty for the offences punishable under Sections 324, 326 and 341 read with Section 34 of IPC and they were not found guilty for the offence punishable under Section 323 of IPC and they have been acquitted for the offence punishable under Section 323 of IPC. Against the said order, appellants/accused persons preferred the appeal and after hearing the case, the appeal was dismissed.
7. The main grounds urged by the learned counsel for the petitioners/accused are that the judgments of the trial Court as well as the First Appellate Court are contrary to law and the facts on the case on hand. It is his further submission that there is a delay in registering the case. Though the alleged incident has taken place on 12.09.2009, the complaint has been registered on 22.02.2009 and no satisfactory explanation has been given in this behalf. Though in the complaint, it has been contended that the matter is intended to be compromise but as per the compromise, it has not been settled. Hence, the complaint has been registered. But in the evidence of PW.1 during the course of cross-examination, she has admitted that no such panchayath has been held. That itself goes to show that a false explanation has been given and no satisfactory reasons have been stated for the State. It is his further submission that PWs.1 and 2 though they are the injured witnesses but their evidence is not corroborated and supporting each other. It is his further submission that they have deposed before the Court for a period of one month that they have been admitted in the hospital but as per Ex.D2 – the MLC register itself goes to show that no such entries have been made for having been treated the PWs.1 and 2 for a period of one month. Even the Doctor, who came to be examined as PW.9, in his evidence, he has admitted the same fact. That itself goes to show that the documents have been fabricated only to suit the case. It is his further submission that though the document discloses the fact that they have been admitted in the hospital, a duty cast upon the Doctor to send the MLC report to the concerned police station but no such report has also been sent. Further it is submitted that the material witnesses regarding the recovery have also not supported the case of the prosecution and the recovery has not been proved. Further it is submitted that panchas for recovery of the club discloses that the said club has been taken out by PW.1 and handed over at the time when it was seized. That itself goes to show that as on the date, when the panchanama has been drawn on the next day of alleged incident, they were not there in the hospital. It is his further submission that the said evidence does not corroborates with the evidence of PW.1 that they have not been admitted in the hospital. It is further submitted that PW.4 is a witness on behalf of the prosecution, he has not supported the case of the prosecution and he has been treated as hostile.
8. By entire reading of the said case it shows that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. The said aspects have not been properly appreciated and a proper finding has not been given in this behalf. On these grounds, he prayed to allow the petition and to acquit the accused.
9. Per contra, learned High Court Government Pleader vehemently argued and submitted that PWs.1 and 2 are the injured eye-witnesses and they have clearly stated the overt-acts of each of the accused persons and their evidence is corroborated with the evidence of PW.2. Her presence has not been denied and even though PW.4 has not particularly supported the case of the prosecution, he has clearly stated in his evidence about the galata which has taken place on the alleged date of incident at about 7.00 p.m. In that view of the matter, there is no dispute about the galata, which has taken place. When the injured eye-witnesses are there, under such circumstance, the Court can rely upon their evidence and convict the accused. It is his further submission that immediately after the incident, the injured persons have been taken to the Government hospital and they have been got admitted and even history in the wound certificate also goes to show that they suffered with injuries due to the assault. It is his further submission that though PWs.5 and 6 are the recovery mahazar panchas, they have not supported the case of the prosecution about the recovery but when the evidence of eye-witness is there and they have identified the material object, under such circumstance, their evidence cannot be ignored. It is his further submission that the trial Court as well as the First Appellate Court after considering the evidence and material placed on record have rightly convicted the accused. On these grounds, he prayed to dismiss the petition.
10. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
11. The first and foremost contention, which has been taken up by the learned counsel appearing for the petitioners/accused is that there is a delay of 10 days in filing the complaint. The alleged incident has taken place on 12.09.2009 at about 6.00 p.m., but the complaint has been registered on 22.09.2009 and no explanation has been given. As could be seen from the complaint as per Ex.P1 therein, it has been specifically mentioned that because of some panchayath by the elders in the village, the said delay has been caused. Though it is contended by the learned counsel for the petitioners that in the evidence of PW.1, she has clearly admitted the fact that the said panchayath has not been held and she has denied the holding of the panchayath, there is inconsistency in the evidence and it falsifies the case of the prosecution but surprisingly, the accused got marked the said portion in the complaint as Ex.D1 about the explanation, which has been explained by the complainant in the complaint itself. When a written document has been got marked by accused himself, under such circumstance, he cannot resile from the said marking of the document and contend that PW.1 has deposed that no such panchayath has been held. If any statement of the witness is marked by confronting to the witness, which has been got marked by the accused, under such circumstance that is the case of the accused and that thereby he admits the said fact. In that light, the contention taken up by the learned counsel for the accused that there is a delay in filing the complaint is not sustainable in law.
12. Be that as it may. Even assuming that Ex.D1 has not been properly explained, however if the other material evidence taken into consideration with regard to the injury certificates, which have been got marked at Exs.P4 and P5 therein, it has been also given in the hospital that injuries have been caused on 12.09.2009 at about 6.00 p.m., due to the assault.
13. Keeping in view the fact that immediately after the incident when they got admitted in the hospital, the hospital records also shows that they have been got admitted in the hospital. It supports the case of the prosecution. Looking from the said act also the contention is not sustainable in law. This Court is conscious of the fact that if the delay is there, the case of the prosecution has to be seen carefully to see that whether any fabrication or false implication has been made after deliberation of the facts with the complainant and other persons, but on going through the material placed on record, no such material has been brought to show that because of delay and deliberation, the false implication has been made in respect of the accused. Even during the course of cross-examination of PW.1, about the alleged incident, it has been elicited that how and in what manner the accused have assaulted PW.1. In that light also, the contention of the petitioners/accused is not sustainable in law.
14. The second contention is that there is no corroboration in the evidence of PWs.1 and 2, other witnesses and Ex.D2 clearly goes to show that the said document has been fabricated but as could be seen from the evidence produced before the Court PWs.1 and 2 are the injured witnesses. In their evidence, they have identified the accused persons and they have stated that four accused persons came to the spot and accused No.2 caught hold of her and at that time, accused No.1assaulted with stone on her forehead and thereafter accused No.2 assaulted with club on her back and accused No.3 instigated and abused and he assaulted to PW.2 with club. At the same time, accused No.4 also assaulted. During the course of cross-examination nothing has been elicited to discard the evidence of these two witnesses. The said evidence is also corroborated with the evidence of PW.3, he is also an eye-witness to the alleged incident and he has also deposed the assault said to have been committed by the accused persons. The said evidence of these three witnesses is corroborated with the medical evidence and the evidence of PW.9 – the Doctor, who has issued the injury certificate as per Exs.P4 and P5. In his evidence, he has deposed that tenderness, swelling and other injuries on the left side. Insofar as PW.2 is also concerned, he has stated that there was tenderness and swelling of right wrist and he has also opined that suspicion about the right wrist fracture. The factual matrix if they are looked into in its entirety, there is no suspicion about the alleged incident and assault committed by the accused persons.
15. It is well proposed proposition of law that the evidence of injured witnesses lends more credence as normally he would not falsely implicate a person thereby protecting the actual assailant. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Vijayshankar Shinde and Others Vs. State of Maharashtra reported in (2008) 2 SCC 670. It is well proposed proposition of law that evidence of eye-witness cannot be rejected merely because of they are relatives. Whenever the injured witnesses have come before the Court and supported the case of the prosecution, under such circumstances, the corroboration is not required. Even if a single injured witness supports the case of the prosecution on the basis of the evidence of said witness, the Court can bring home the guilt of the accused. It is contended that there are contradictions and omissions in the evidence of the alleged witness. I have carefully and cautiously gone through the said contradictions and omissions which have been brought but the said contradictions and omissions have not been brought on record as contemplated under Section 145 of the Evidence Act and even they are not considered to be so serious so as to take away the case of the prosecution, they are minor contradictions and omissions. In that light also the contention taken up by the learned counsel for the petitioners/accused is not sustainable in law.
16. The alleged galata, which has been taken place has not been discarded and the evidence of PWs.1 to 3 have not been shakened during the course of evidence and the evidence of PW.9 and other witnesses also is corroborates with each other along with Exs.P4 and P5. By seeing of all the materials, it clearly goes to show that the accused persons with a common intention, came to the spot and have committed the alleged offence.
17. In that light, I am of the considered opinion that the accused persons have not made out any good grounds so as to acquit the accused. However, the material which has been produced by the prosecution, the evidence if it is looked into, the prosecution evidence does not satisfy the essential ingredients of the Section as contemplated in Section 326 of IPC. In order to bring home the guilt of the accused, the first ingredient which has to be proved by the prosecution is 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 caused as contemplated under Section 320 of IPC. If Section 324 of IPC is read along with Section 326, it indicates that if any person voluntarily causes the hurt, the said injury must be simple hurt and it must be caused voluntarily. Though the ingredients of Sections 323 and 324 of IPC are one and the same but taking into consideration the intention and the gravity, they are going to differ. The gravity of the offence if it is taken into consideration with reference to Section 335 of IPC, such injury must have caused by means of an instruments 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 explosive substance or by means of any substance which is deleterious to the human body to inhale to swallowed or to receive into the blood or by means of any animal in that regard the provisions of Section 326 is attracted.
18. By combined reading of these two Sections and the factual matrix if it is taken into consideration as per the evidence of PWs.1 and 2 no such weapon has been used while committing the said offence that one is stone with which the accused No.1 has assaulted on forehead of PW.1 and they have also assaulted with a club which have been got marked as MOs.1 and 2. The evidence produced in consideration of the injuries inflicted by the accused are only of grievous nature and that six injuries are not likely to cause death in this behalf and even the weapon is used has to be taken into consideration so as to bring home the guilt of the accused to convict him under Section 326 of IPC.
19. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Thathanna Vs. State of Andhra Pradesh reported in AIR 1994 SC 652 at paragraph No.4, it has been observed as under:
“4. PW 1 gave a report Ext. P-1. PW 15 registered the crime and along with the constables reached the scene of occurrence in the night. The Inspector of Police came into the scene later as he was away to Anantapur in connection with the “bandobast duty” of the village. The injured were taken to the hospital and they were treated and the three dead bodies were also sent for post-mortem. The doctor found several incised injuries on all the three dead bodies. PWs 3, 8 and 9 were medically treated and the doctor who examined them found several lacerated wounds and contusions which could have been caused by blunt weapons.”
20. Keeping in view the above proposition of law and the factual matrix, the conviction dropped by the trial Court and confirmed by the First Appellate Court insofar as Section 326 of IPC is concerned, it is not proportionate to the crime committed by the accused. Though the charge has been framed under Section 326 of IPC, while imposing the sentence, the Court has to see that the sentence must be befitting to the offence which has been committed. When the ingredients that are looked into and if they are not going to satisfy the ingredients of Section 326 of IPC under such circumstance, the Court can bring the offence under which it falls even though it is less than the charge which has been framed.
21. Taking into consideration of the above said facts and circumstances, the conviction of accused Nos.1 to 4 under Section 326 of IPC has been modified and by taking into consideration of the participation and the evidence of eye-witnesses, their presence has also been proved. In that light, each of the accused persons have been convicted for the offence punishable under Section 324 of IPC.
22. The petition is partly allowed and the conviction and the sentence are modified as indicated above. Even by taking into consideration, the injuries suffered and the way in which the complaint and other things have happened, at the first instance they have tried to compromise the matter and as the matter has been amicably not settled in that light, the complaint has been registered. Now the learned counsel for the petitioners/accused submits that the petitioners/accused are young and in order to bring them in a reformation they have been sentenced to six months otherwise it is going to ruin their carrier.
23. In the light of the said submission, the sentence imposed on the accused under Section 324 of IPC has been reduced to six months and on each count they have to pay Rs.10,000/- each and out of the said fine amount of Rs.80,000/-, an amount of Rs.60,000/- has to be paid to PWs.1 and 2 equally on proper identification and acknowledgment. Insofar as the conviction under Section 341 of IPC is concerned, the same is confirmed.
Sd/- JUDGE VBS