IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.241/2017 BETWEEN:
Krishna, S/o Late Benneshetty Gowda @ Shettygowda, Aged about 51 years, Residing at Kadu Kothanahalli Village, Bannur Hobli, T. Narasipura Taluk, Mysuru District – 571 124.
(By Sri.C. M. Jagadeesh, Advocate) AND:
The State of Karnataka, Station House Officer, Mandi Police Station, Mysuru. Represented by State Public Prosecutor, High Court Building, Bengaluru – 560 009.
... Petitioner ... Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 r/w Section 401 of Cr.P.C., praying to set aside the judgment of conviction passed by the Prl. First Civil Judge and JMFC at Mysuru in C.C. No.812/2009 dated 22.12.2012 and a common judgment passed by the Hon’ble VII Addl. Dist. And S.J., Mysuru in Criminal Appeal. No.121/2013 dated 20.04.2016 and acquit the petitioner.
This Criminal Revision Petition coming on for hearing, this day, the Court made the following:
O R D E R The present revision petition has been filed by the petitioner/accused challenging the legality and correctness of the judgment passed by the Court of the VII Additional Sessions Judge, Mysuru in Crl.A. Nos.10/2013 and 121/2013 dated 20.04.2016 whereunder the judgment of conviction passed by the Principal First Civil Judge and J.M.F.C. Mysore in C.C. No.812/2009 dated 22.12.2012 has been confirmed and the State appeal is allowed and the accused has been sentenced to undergo rigorous imprisonment for a period of two years.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent – State.
3. The factual matrix of the case of the complainant before the Court below is that the complainant is the wife of the accused. He is her second husband. She used to sell fruits near the front gate of Government Medical College, Mysuru. The complainant earlier got married to one Ninganna through whom she had two children. Her first husband had deserted her. Hence, she settled down with the accused in Mysuru. It is the case of the prosecution that the accused often insisted the complainant to give his daughter – Roopa in marriage to his nephew. The complainant had refused to the said alliance. In that light, on 06.11.2008 at about 6.00 a.m., when the complainant was selling fruits as usual near Government Medical College, the accused who was having grudge against her as she has refused to give her daughter in marriage to his nephew had come from her back side armed with a sickle and assaulted on her head and also near the left eye/left ear portion and caused grievous injuries. PW.2 – Nataraju and CW.2 – Mahadeva had intervened and shifted the injured complainant to K.R. Hospital for treatment and the complaint was filed in this behalf. On the basis of the complaint, a case was registered in Crime No.225/2008 and after investigation; the charge sheet was filed against the accused.
4. Learned Magistrate took cognizance and secured the presence of the accused. After serving the copies, heard regarding charge and the charge was framed. Accused pleaded not guilty and he claimed to be tried and as such, the case was fixed for trial. In order to prove the case of the prosecution, it has got examined 9 witnesses and got marked 7 documents, 3 material objects. Thereafter, the statement of the accused came to be recorded under Section 313 of Cr.P.C. The accused denied the same and he did not choose to adduce any defense evidence and not got marked any evidence.
5. After hearing the learned counsel appearing for the parties, the trial Court convicted the accused for the offence punishable under Section 326 of I.P.C. and sentenced him to undergo rigorous imprisonment for one year six months and also to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for a period of two months. Being aggrieved by the said order, the accused preferred the criminal appeal No.10/2013 and the State has also preferred the Crl.A. No.121/2013. The appeal preferred by the accused was dismissed and the appeal filed by the State was partly allowed and the sentence was modified and the accused was sentenced to undergo rigorous imprisonment for a period of two years and the remaining sentence was confirmed.
6. The main grounds urged by the learned counsel for the petitioner are that the Court below has erred in convicting the petitioner/accused for the offence punishable under Section 326 of IPC. It is his further submission that though the complainant/PW.1 has turned hostile, in her cross-examination, she has deposed that the said act was voluntary and it was not due to any undue influence. The evidence of PW.1 goes to show that she has given goodbye to her evidence by denying all the incidents under such circumstance, the Court below ought to have acquitted the accused. The motive has not been substantiated in the evidence of PW.1. The trial Court as well as the First Appellate Court have not considered the said fact and have wrongly convicted the accused. He further submitted that PWs.5 and 6 - the panch witnesses have not supported the case of the prosecution and the evidence of all the witnesses are contradictory to each other and there is no cogent and acceptable evidence produced by the prosecution to convict the accused for the alleged offence. It is further submitted that the First Appellate Court erred in enhancing the sentence passed by the trial Court. On these grounds, he prayed to allow the petition and to set aside the impugned order and acquit the accused.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that PW.1 is the injured complainant. In her evidence, she has categorically deposed with regard to the assault committed by the accused and the cross-examination was deferred and after 2 ½ months she has been cross- examined. In her evidence during the course of cross- examination by the learned APP, she has clearly admitted the fact that the accused and the elder persons of the village held panchayath and they have compromised and accused has paid Rs.30,000/- and as per the said compromise, she is deposing before the Court. He by drawing the attention of this Court in the case of Krishna Vs. State of Karnataka reported in 2010 Crl.LJ.1515 contended that if the evidence has been led later, the accused turned the witness hostile then under such circumstances, the examination-in- chief has to be accepted as true if it is not shown that what he stated in his examination-in-chief is to the said fact was not stated by him at the earliest opportunity. It is his further submission that PW.2 is another eye- witness, he has also fully supported the case of the prosecution and nothing has been elicited so as to discard his evidence. It is further submitted that there is a strong motive with regard to the alleged offence. It is the specific case of the appellant that the accused demanded the complainant to give his daughter - Roopa in marriage to his nephew and the complainant has refused the said alliance and with that motive, on the alleged date of incident, the accused assaulted the complainant with sickle. The said evidence is also corroborated with the evidence of PW.4 – the Doctor, who has narrated the injuries and has rightly opined that the said injuries can be caused by the sickle MO.1. He further submitted that the trial Court has convicted the accused only for one year six months. The said sentence was in-adequate and as such, the State preferred the appeal and the First Appellate Court has rightly allowed the appeal. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and perused the records.
9. On going through the said records, it is the contention of the learned counsel for the petitioner/accused that the evidence led by the Court below has not been properly appreciated by the trial Court. In order to prove the case of the prosecution, it has got examined 9 witnesses. PW.1 is the injured complainant and she has deposed with regard to the fact of accused making a proposal to give his daughter Roopa in marriage to his nephew and she refused the said alliance and in that light, on the date of alleged incident, at about 6.00 a.m., when the complainant was selling fruits, he came from the backside and with the earlier grudge, he assaulted the complainant with the sickle on her head near the left eye, left ear and caused grievous injuries. On the same day, the witness has not been examined and she has been subsequently cross- examined before the Court on 23.02.2012 and she has been treated as hostile and during the course of cross- examination subsequently by the Assistant PP she has clearly admitted that there was a compromise entered into between the accused and the elders of the village, herself and the accused has paid Rs.30,000/- for the compromise and as such, she is deposing in cross- examination.
10. The co-ordinate bench of this Court in the case of Krishna quoted supra has clearly observed that where a witness fully supports the case of the prosecution in his examination-in-chief, as to any material and relevant fact but turns hostile to the prosecution, in his cross-examination made on behalf of the accused on a later date and states contrary to his evidence in examination-in-chief as to the said fact, the evidence of such hostile witness in his examination-in- chief has to be accepted as true.
11. Be that as it may. Even the evidence of PW.2 also clearly goes to show that he is also an eye- witness to the alleged incident. In his evidence, he has clearly stated that the husband of the complainant at about 7.00 a.m. assaulted with machhu on her back side of the head and caused the bleeding injury. During the course of cross-examination, all the suggestions have been denied and nothing has been elicited from the mouth of this witness.
12. Even as could be seen from the evidence of PW.4 - the Doctor, who examined the complainant. In his evidence, he has also deposed that he has examined the complainant and he found four injuries on her left shoulder, backside of the left shoulder, left side of the eye-brow, back side of it and upper portion of the shoulder and all the said injuries are grievous injuries. He has issued the wound certificate as per Ex.P4. He has also deposed that the said injuries can be caused with MO.1. During the course of cross-examination, it has been suggested that the said injuries can be caused if a person falls on a grill, the said suggestion has been denied and even no other suggestions have been made in this behalf.
13. By going through the evidence of these three witnesses, there appears to be corroboration and there is nothing to discard the evidence of these witnesses about the alleged incident.
14. Insofar as PW.3 is concerned, he is the son of the complainant and he came to know about the incident and he visited and thereafter he visited the hospital.
15. PWs.5 and 6 are the panchas to mahazar at Ex.P2. They are not supported the case of the prosecution.
16. PW.7 – the Head Constable, who went and apprehended the accused and produced before the Investigating Officer.
17. PW.8 – PSI, who investigated the case and filed the charge sheet.
18. PW.9 is the PSI, who registered the case on the basis of the complaint and issued the FIR as per Ex.P7.
19. On going through the material produced before the Court, the prosecution has clearly established the fact that because of the previous animosity as the accused requested the complainant to give his daughter – Roopa in marriage to his nephew and she refused the said alliance and in that ulterior motive, the accused took a chance on 06.07.2008 and assaulted. Though the weapon used at one stretch, it is said as sickle at another stretch, it has been used as machhu but the said fact has not been seriously disputed by the accused during the course of cross- examination or even during the arguments or his contentions before the Court.
20. Under such facts and circumstance, it is considered to be a minor discrepancies in the evidence produced before the Court.
21. Looking from any angle, the petitioner/accused has not made out any good grounds to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed.
22. I have carefully gone through the judgment of the trial Court and perused the lower Court records. There is no perversity or illegality in passing the said judgments. The same deserves to be confirmed. The petition is being devoid of merits, the same is liable to be dismissed accordingly, it is dismissed.
The trial Court is directed to issue the conviction warrant, if he has not served the sentence.
Registry is directed to send back the trial Court records forthwith.
Sd/- JUDGE VBS