IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.477 OF 2011 BETWEEN:
STATE BY CHINTAMANI RURAL POLICE STATION.
(BY SRI S.T. NAIK, H.C.G.P.) AND:
1. AFSAR PASHA, S/O JANABSAB, AGED ABOUT 29 YEARS.
2. BABULAR @ ANWARBASHA, AGED ABOUT 25 YEARS, 3. BADAL, S/O JANABSAB, AGED ABOUT 32 YEARS, 4. ANWARBASHA, S/O JANABSAB, AGED ABOUT 24 YEARS.
ALL ARE RESIDING AT MOHAMMEDPUR, CHINTAMANI TALUK, CHIKKABALLAPUR.
(BY SRI NARAJJI DEEPAK, ADVOCATE) …PETITIONER …RESPONDENTS THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 14.08.2006 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND J.M.F.C., AND ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C. (I/C), CHINTAMANI IN C.C.No.29/2005 AND ORDER DATED 03.02.2010 PASSED BY THE ADHOC SESSIONS JUDGE, FTC-II, CHINTAMANI IN CRL.A.No.37/2007.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 17.01.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
O R D E R This revision petition is filed by the petitioner – State under Section 397 read with Section 401 of the Cr.P.C. being aggrieved by the judgment and order of acquittal passed by the J.M.F.C., Chintamani, in C.C.No.29/2005 dated 14.08.2006 and same was confirmed by the Fast Track Court –II, Chintamani, in Crl.A.No.37/2007 dated 03.02.2010. Both the Courts below acquitted the respondents/accused for the offences punishable under Sections 323, 324 and 326 read with Section 34 of IPC.
2. The petitioner–State was the complainant and the respondents were accused Nos.1 to 4 before the Trial Court. The ranks of the parties are retained for the sake of convenience.
3. The factual matrix of the case of the prosecution is that on 16.11.2004 at about 6 p.m., P.W.1 – complainant - Mukthar Banu and her husband - P.W.2 - Kalid Ali went to their land bearing survey No.68/4 of Mohammadpur Village in Chintamani Taluk which was under dispute between the complainant and the respondents. When the accused persons had gone to the said land for cultivation, PW.2 obstructed for such cultivation, the accused quarreled with the PWs.1 and 2. At that time, accused No.1 assaulted P.W.2 with a club and caused simple and grievous injuries and the other accused persons fisted P.W.2 and caused bodily pain. After the incident, P.W.2 was shifted to the hospital and later P.W.1 filed a complaint to the Chintamani Rural Police and a case in Crime No. 141/2004 was registered against the accused Nos.1 to 4 for the offences punishable under Sections 323, 324 read with Section 34 of IPC. After the investigation, the charge-sheet was filed for the offences under Sections 323, 324 and 326 read with Section 34 of IPC.
4. The accused persons were arrested and released on bail. The learned J.M.F.C. took cognizance of the offences and charges were framed. The accused pleaded not guilty and claim to be tried. Thereafter, the prosecution examined totally 8 witnesses as P.W.1 to P.W.8, got marked 5 documents as Exs.P.1 TO P.5 and 2 material objects as M.Os.1 and 2. After closing the prosecution evidence, the statements of the accused under Section 313 of Cr.P.C. were recorded. The accused in order to prove their defence, examined their father as D.W.1 and got marked 2 documents as Ex.D.1 and 2.
After hearing the arguments, the learned trial Judge acquitted accused Nos.1 to 4 from the charges. Being aggrieved by the same, the State, preferred an appeal under Section 378 of Cr.P.C. Earlier it was filed before this Court, later it was withdrawn and transferred to the Fast Track Court, Chintamani, in Criminal Appeal No.37/2007.
After hearing the arguments, the First Appellant Court also dismissed the appeal and confirmed the acquittal judgment passed by the Trial Court, vide judgment dated 03.02.2010. Hence, this revision petition filed by the State on various grounds.
5. The learned High Court Government Pleader contended that the injuries sustained by P.W.2 is stated by P.W.1, the eyewitnesses – P.Ws.3 and 5 and even corroborated by medical evidence. The teeth of P.W.2 were missing in the incident, the same was spoken by the PW.2, but both the Courts below committed error in holding that the prosecution failed to prove missing of teeth. It is further contended that the learned Judges of the Courts below failed to appreciate the evidence on record even though the prosecution brought home the guilt of the accused beyond reasonable doubt. Though the Trial Court and the First Appellate Court gave much importance to the contradictions and omissions, which is natural when the witnesses were examined after long time of the incident, the injured evidence clearly corroborated with the medical evidence, but the trial Court acquitted the accused only based upon the civil dispute which is not correct. Therefore, he prays to allow the revision petition and to convict the accused /respondents.
6. Per contra, the learned counsel for the respondents - accused contended that, initially, the case was registered for the offence punishable under Section 324 of IPC even without any evidence on record, without X-ray report and without examining the dentist; the Investigating Officer filed the charge-sheet for the offence punishable under Section 326 of IPC which is not correct. As per the evidence of the Doctor, PW.8, the teeth of P.W.2 were loosen, but not lost. He has given Wound Certificate - EX.P.5 as injuries are grievous in nature which is not correct. He further contended that P.W.2 has stated in the cross-examination, after 15 days of the incident, his 3 teeth fell down and he has given the same to the Investigating Officer and the same were seized by the Investigating Officer, but the Investigating Officer has not stated anything about the seizure of the teeth and no mahazar were placed before the Court. Therefore, it is contended that the evidence of P.W.2 cannot be acceptable. It is further contended by the learned counsel that P.Ws.3 and 5 are workers of P.W.2, P.W.4 is the nephew and P.W.1 is the wife of P.W.2. They are all interested witnesses. Therefore, both the Courts below rightly rejected their evidence and therefore, the offence under Section 326 of IPC does not attract.
7. An another fold of arguments of the learned counsel for the respondents is that, there was a civil dispute between P.W.2 and the accused persons. The father of the accused was the owner of the property. In support of this case, the accused examined their father and got marked two documents, i.e. Ex.D.1 is the sale deed and Ex.D.2 is the order passed by the Assistant Commissioner and the petition filed by P.W.2 against the father of the accused which came to be dismissed. Such being the case, when the accused cultivating their land, the complainant and her husband went there and picked up a quarrel with the accused. When the injured and the complainant have themselves provoked the accused and if the accused assaults the complainant or her husband, it does not fall under Section 324 of IPC, rather it may attracts Section 334 of IPC and it is also contended that the accused cannot be said to have assaulted the complainant and her husband voluntarily, as the complainant and her husband were the aggressor of the incident. Therefore, it is argued that there is no intention for the accused to cause any injury voluntarily on P.W.2, and even Section 324 or Section 334 of IPC would attract against the accused. Therefore, he has supported the judgment of the trial Court as well as Appellate Court. Hence, he prayed for dismissing the petition.
8. Heard the learned counsel on both side and perused the records.
9. It is well settled by the Hon’ble Apex Court that the revisional Court cannot re-appreciate the evidence led by the prosecution in the trial Court as a First Appellate Court and this Court being the revisional Court has power to exercise calling the records to satisfy as to correctness, legality and propriety of any findings or sentence passed by the Courts below.
10. The prosecution to prove its case in all examined 8 witnesses. P.W.1 is the complainant and wife of P.W.2.
P.W.2 was injured, both of them deposed before the Court that on the date of incident, both of them went to their land and at that time, the accused persons were cultivating the land. When the complainant questioned and enquired, why they are ploughing the land, since the land belongs to them, while questioning the same, accused No.1 assaulted P.W.2 with the club on his left cheek due to which he has sustained bleeding injury, the other accused also assaulted and caused body pain. Immediately, after witnessing the incident P.W.3 – Melurappa and P.W.5 - Chowdappa came there and pacified the quarrel and shifted P.W.2 to the hospital. Then, P.W.1 lodged complaint to the Police, in turn, the Police registered the case in Crime No.141/2004 for the offences punishable under Sections 323 and 324 read with Section 34 of IPC. Then the Investigating Officer - PW.7 - Mohammed Rafi, P.S.I, visited the spot, prepared the spot panchanama and seized M.O.1, the club, lying on the spot in the presence of the panchas. He also recorded the statement of P.W.5 – Chowdappa, who is an eyewitness. Later, on the same day, P.W.2 - the injured produced the blood stained shirt and the same was seized under the Panchanama. Then, he has recorded the statement of P.Ws.3 and 4 and secured the Wound Certificate as per Ex.P.5 and after completion of investigation, he has laid the charge-sheet against the accused. However, he has added Section 326 of IPC based upon the injury certificate issued by the Doctor.
11. P.W.3 - Melurappa and P.W.5 - Chowdappa also deposed before the Court that they have seen the incident, the quarrel between the injured and the accused and also spoken about the assault on P.W.2 by accused No.1 with the club on his cheek and the other accused persons assaulted with hands. They pacified the quarrel and shifted the injured to the hospital. P.W.8 – Dr. Jayarama Reddy, who examined P.W.2, has found 5 injuries on P.W.2. Out of which, the first and second injuries were scratch injuries, the third injury was the contusion over the lip, the fourth injury was on the left side of the cheek on the mandible region. The teeth were loosened, there was pain, there was inner injury and contusion on the left side cheek. The fifth injury was pain over the right cheek and according to his opinion, injury No.4 was grievous in nature and in the cross-examination, he has admitted that he has not referred the injured to the Dentist for radiological examination. However, this witness stated that he got the injured admitted for 2 days in his hospital and treated. This witness has not obtained the dentist opinion in respect of loosening the teeth. The evidence of this witness, cannot be thrown out as unworthiness in respect of treating P.W.2, who is a public servant who has done his duty in normal course and nothing was elicited that he was influenced by PW.2 and gave any false certificate. This witness clearly stated that the teeth were loosen, but had not fallen down. However, this witness has not stated or elicited by the prosecution that the teeth were loosen because of assault by the accused with club. The Investigating Officer also not sent the club to the Doctor for getting opinion about the weapon, whether the teeth were shaken or fallen due to the assault with M.O.1. Apart from that, at the time of lodging the complaint by the wife of P.W.2, she has not stated, the teeth were shaken or loosen due to assault. P.W.2 has also not stated before the Doctor that the teeth were loosen due to assault and the Doctor has also not mentioned in his certificate the fourth injury was grievous in nature due to fracture or falling down of the teeth while treatment. It is pertinent to note, P.W.2 deposed in the cross-examination that three of his teeth were fallen down after 10 to 15 days of the incident and he gave the teeth to the Police, but P.W.7 -
Investigating Officer has not stated about the receipt of those teeth and seizure of the same at the time of preparing panchanama. Also, there is no observation made by the trial Court during recording of the evidence. It was not confirmed, whether three teeth of P.W.2 had fallen down or not, therefore, in absence of any material before the Court, the Court cannot accept injury No. 4 was grievous in nature as there was no mention about any fracture in the Wound Certificate. Therefore, the trial Court rightly held that there was no grievous injury caused to P.W.2. However, there is no reason for throwing the entire evidence of P.W.8, the Doctor, who found the injury on P.W.2 and prior to lodging the complaint, P.W.2 has stated before the Doctor, while admitting to the hospital for treatment and he has named the accused persons regarding history of assault, he has mentioned the time and date of the incident. Therefore, the evidence of P.W.8 corroborates with the evidence of P.W.2 - injured witness.
12. Now coming to the evidence of P.Ws.3 and 5, they also categorically stated regarding the incident and pacifying the quarrel. Though PWs.3 and 5 previously worked with P.W.2, they cannot be said to be the interested witnesses. There evidence goes to show that on the date of incident, they were unloading the stones in the land of P.W.5 and at that time, they pacified the quarrel. They have categorically stated accused No.1 assaulted with the club on the cheek of P.W.2. P.W.3 also stated, he was a coolie and works for anyone, whoever calls him and P.W.5 had previously worked with P.W.2. Therefore, their evidence cannot be thrown out as interested and they are found to be natural witnesses. It is also to be noted that P.W.5 declared as hostile in respect of identifying the names of the accused and later, in the cross-examination, though he has identified the accused, he said that he does not know the names of the accused. Therefore, if at all P.W.5 is interested witness; he could have named the accused persons in his evidence, even though he said to be brought by P.W.2 to the Court on the day of recording his evidence. Therefore, there is no reason for discarding the evidence of P.Ws.3 and 5 as untrustworthy or interested. On the other hand, they are reliable. Their evidence is trustworthy and an acceptable one. Therefore, both the Courts below erred in disbelieving their evidence and findings of both the Courts below are erroneous.
13. P.W. 4 is a nephew of P.W.2 and a pancha witness. His evidence has been excluded as he is the relative of P.W.2. But the evidence of P.W.7, the Investigating Officer, clearly goes to show that he has visited the spot on 18-11-2004 prepared the panchanama - Ex.P.3 and seized M.O.1 as shown by P.W.5, the eyewitness. Therefore immediately after the receipt of complaint and registering the case, he has visited the spot, recorded the statement of P.W.5 and seized M.O.1 - the club on the spot which corroborates the evidence of the P.Ws.1 and 2, thereby the prosecution proved the seizure of the weapon M.O.1 on the spot.
14. Merely there was civil dispute between the accused and the complainant that itself is not a ground to reject the evidence of the P.Ws.1 and 2 and their evidence clearly goes to show that on the day of incident, they went to the land for cultivation and at that time, they saw accused cultivating the land. While questioning the accused, there was quarrel between them, at that time, the accused assaulted P.W.2 stating that the said land belongs to them. When the accused claiming the right over the land which is admittedly in dispute as per the evidence of D.W.1, the father of the accused and Ex.Ds.1 and 2, the sale deed and the order passed by the Assistant Commissioner referring the matter to the Civil Court. Such being the case, when the enmity between parties is shown in the evidence of the prosecution and in the cross- examination, the Court should infer that enmity is double edged weapon. It is also possible to falsely implicate the accused and also chances of the accused assaulting the complainant are not ruled out. In this case, the quarrel took place in respect of cultivation of the land and there was assault on P.W.2 by the accused. Therefore, even though the Criminal Court cannot sit over to decide the rights of the parties in respect of disputed land, but the Court is required to consider, whether the incident has occurred or not on the background of the civil dispute. In this case, the evidence of P.Ws.1 and 2 goes to show that immediately after the incident, P.W.2 was admitted to the hospital. P.W.1 has clearly explained that she stayed with her husband and thereafter, on 18.11.2004, she lodged the compliant in the Police Station and set the law into motion. Merely a day delay in lodging the complaint, the entire evidence of the prosecution cannot be thrown out as false. P.W.2 has stated that he has treated in the hospital for 2 days which corroborates with the evidence of P.W.8 - Doctor and after the discharge, P.W.2 went to the Police Station and gave the blood stained shirt which was seized. There may be little discrepancy in the seizure of M.O.2 – Shirt, but the entire story of the prosecution shall be looked into in totality. Therefore, the evidence of PWs.1 to 8 corroborates with the documents and material objects. Thereby, the prosecution has successfully proved its case that on the day of the incident, there was a quarrel and the accused assaulted P.W.2 with stick or club and caused the injuries. Though injuries are not grievous, both the Courts below went on discussing unnecessarily to disbelieve the evidence of the prosecution witnesses, only on the ground of civil dispute, delay in lodging complaint and non-seizure of teeth. On the other hand, the Courts below ought to have given findings by excluding the grievous injury and sustaining simple injuries by P.W.2. Even there is no explanation given by the accused in the 313 Cr.P.C. statement and not taken any specific defence that they were not present on the date of incident in the disputed land. Therefore, both the Courts below have not properly appreciated the evidence of the prosecution witnesses and given wrong findings while passing the judgments. Therefore, for the above said reasons, this Court required to interfere in the finding of acquittal judgment passed by both the Courts below.
15. In view of the above findings, when the prosecution is successful in proving the case against the respondents regarding the incident of assault, such being the case, now this Court is required to consider what are the provisions would attract against the accused. The learned counsel for the accused – respondents contended that even otherwise, if the accused was believed to be assaulted P.W.2 and caused any injuries, which does not fall under Section 324 of IPC since the complainant and P.W.2 themselves picked up quarrel and provoked the accused for the act. Therefore, the offence under section 324 of IPC will not attract. It is also contended that the injured himself was aggressor for the incident. Therefore, the accused cannot be held guilty. Of course, the quarrel took place when the injured questioned the accused about tilling the land, at that time, the incident occurred, but the learned counsel for the accused has not taken any such defence in the trial Court, in order to plead or claim that the injured was an aggressor; the accused is required to admit the incident. Therefore, when there is no such plea or defence taken by the accused before the trial Court, now they cannot raise such plea before this Court. Even otherwise, the accused could have lodged a complaint against P.W.2, when P.W.2 came for obstructing the accused from cultivation. The accused cannot take the law into their hands and assault the injured claiming to be the owners of the land. It is well settled principle that even a trespasser cannot be thrown out without due process of law. Therefore, the contention of the learned counsel for the respondents that the injured was the aggressor cannot be acceptable. Section 324 of IPC provides punishment for causing hurt voluntarily with deadly weapons or means and Section 334 of IPC provides punishment for causing hurt due to provocation.
16. Section 334 of IPC reads as follows:
“334. Voluntarily causing hurt on provocation – Whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment or either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both”
17. However, the explanation to Sections 334 and 335 of IPC says that these two Sections are subject to the same provisos as Exception - 1 to Section 300. Exception - 1 to Section 300 defines that culpable homicide is not murder if the offender, whist deprived of the power of self- control by grave and sudden provocation, causes the death of the person, who gave the provocation or causes the death of any other person by mistake or accident. But in this case, there is no such sudden provocation occasioned for the accused for committing the offence against P.W.2. It is not the case that only one accused was present, but there were other four accused persons and all of them assaulted P.W.2 with common intention and accused No.1 started assaulting P.W.2 with a club. Thereafter, the other accused also joined with him. Therefore, the contention of the learned counsel for the accused cannot be acceptable that the offence was committed due to sudden provocation which falls under Section 334 of IPC. On the other hand, the other accused persons having knowledge and with an intention to cause injury assaulted P.W.2 with a club and by hands which clearly falls under Sections 323 and 324 read with Section 34 of IPC.
18. Hence, I proceed to pass the following order:
The revision petition is partly allowed. The judgment of acquittal passed by the J.M.F.C., Chintamani, in C.C.No.29/2005 dated 14.08.2006 and confirmed by the F.T.C. - II, Chintamani, in Crl.A.No.37/2007 dated 03.02.2010 are hereby set aside. Accused No.1/respondent No.1 is convicted for the offence punishable 324 of IPC and accused Nos.2 to 4/respondents No.2 to 4 are convicted for the offences under Sections 323 and 324 read with Section 34 of IPC. However, by looking to the facts and circumstances of this case and considering the long lapse of litigation, to meet the ends of justice, imposing fine will be sufficient instead of jail term.
Accused No.1 is sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) and in default of payment of fine, he shall undergo simple imprisonment for three months. Accused Nos.2 to 4 are sentenced to pay a fine of Rs.500/- each (Rupees five hundred only) and in default of payment of fine, they shall undergo simple imprisonment for one month for the offence punishable under Section 323 read with Section 34 of IPC. Further, Accused Nos.2 to 4 are sentenced to pay a fine of Rs.3,000/- each (Rupees three thousand only) and in default of payment of fine, they shall undergo simple imprisonment for three months for the offence punishable under Section 324 read with Section 34 of IPC.
Out of the total fine amount, Rs.10,000/- (Rupees ten thousand only) is ordered to be payable to P.W.2 - Kalid Ali as compensation under Section 357 of Cr.P.C.
Registry is directed to send the records with a copy of this order to the concerned Court, forthwith, for further course of action.
SD/- JUDGE GBB