IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.1388/2015 C/W.CRIMINAL APPEAL No.1528/2015 CRIMINAL APPEAL No.1388/2015 BETWEEN:
Mr.Umesha Naika, S/o.Bhojya Naika, Aged 41 years, Agriculturist, R/o.Ayanuru Kote Thanda, Shivamogga District, Pin-577 201. …APPELLANT (By Sri.I.S.Pramod Chandra, Advocate) CRIMINAL APPEAL No.1528/2015 BETWEEN:
Mr.Bhojya Naika, S/o.Valna Naika, Aged 66 years, Agriculturist, R/o.Ayanuru Kote Thanda, Shivamogga District, Pin-577 201. …APPELLANT (By Sri.I.S.Pramod Chandra, Advocate) AND:
State of Karnataka, By Kumsi Police Station, Shivamogga District, Through the State Public Prosecutor, High Court Building, Bengaluru-560 001. ... RESPONDENT (By Sri.Chetan Desai, HCGP) (RESPONDENT COMMON IN BOTH APPEALS) THESE CRIMINAL APPEALS ARE FILED U/S.374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT & SENTENCE DT.29.06.2015 PASSED BY THE III ADDL.S.J., SHIVAMOGGA IN S.C.NO.181/2014 – CONVICTING THE APPELLANTS/ACCUSED NOS.1 & 2 FOR THE OFFENCE P/U/S.448, 326, 324, 307, 504 & 506(2) R/W.34 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER These two appeals are preferred by Accused Nos.1 and 2 in S.C.No.181/2014 on the file of the III Additional District and Sessions Judge, Shimoga.
2. By the impugned Judgment dated 29.06.2015, both the accused are convicted for the offences punishable under Sections 448, 326, 324, 307, 504 and 506(2) read with Section 34 of IPC and sentenced to various terms of imprisonment and fine.
3. The case of the prosecution is that there was a dispute between the complainant’s family and accused with regard to the usage of the passage situate in between their houses. In that background, on 29.09.2013 at about 7.00 p.m., the accused persons, in furtherance of their common intention, trespassed into the house of P.W.1-Smt.Suniki Bai and started abusing her in filthy language. Accused No.1 is said to have assaulted P.W.1 with a sickle on her head and left hand causing grievous injuries and Accused No.2 assaulted P.W.2, the son of the complainant and P.W.3, her husband.
4. The injured took treatment in Mc.Gann Hospital, Shimoga. The statement of P.W.1 was recorded in the hospital by P.W.5, based on which Crime No.285/2013 was registered against both the accused. After investigation, charge-sheet was laid against them for the above offences.
5. The appellants/accused having denied the charges, the prosecution examined in all seven witnesses including the injured witnesses viz., P.Ws.1 to 3 and produced the wound certificates Exs.P.5, P.6 and P.7 along with other documents marked as Exs.P.1 to P.9(a). The sickle used for the commission of offence was marked as M.O.1 and the club as M.O.2. Considering the evidence of the injured witnesses coupled with the evidence of the doctor-P.W.6 who examined the injured witnesses, the trial Court found both the accused guilty of the above offences.
6. Sri.I.S.Pramod Chandra, learned counsel appearing for the appellant submits that having regard to the direct evidence of the injured witnesses, he does not propose to argue on the merits of the case though there is material contradiction in the evidence of the injured witnesses with regard to the overt-acts committed by the respective accused. The learned counsel points out that P.W.1 has stated that Accused No.1 assaulted her son with club whereas the case of the prosecution is that Accused No.1 was armed with a sickle and assaulted only P.W.1.
7. Learned counsel submits that having regard to the circumstances in which the alleged offence has taken place, there being no evidence on record to show that P.W.1 has been treated as in-patient for a considerable length of time, the fine imposed by the trial Court in addition to the sentence of imprisonment is excessive and disproportionate to the offence proved against the respective accused. The learned counsel further submits that in spite of reduction in the fine amount by this Court, Accused No.1 was not in a position to pay the fine amount and get himself released from the prison by offering surety. Under such circumstances, the learned counsel pleads for reduction of the sentence.
8. Learned H.C.G.P does not dispute the submission that there is a contradiction with regard to the overt-acts committed by Accused No.2 in so far as the assault made on P.W.2. Even otherwise, on going through the records, it is seen that the injuries suffered by P.Ws.2 and 3 are certified to be simple in nature. There is nothing on record to show that P.Ws.2 and 3 have been treated as in-patients either in Mc.Gann Hospital or in other hospital. Though P.W.1 has stated that on account of the injury sustained by her, a rod was implanted, the prosecution has not produced any corroborative evidence in this regard. The prosecution has not even produced the x-ray to corroborate the opinion of P.W.6 that the injuries sustained by P.W.1 was grievous in nature. None the less, the prosecution having established the fact that P.W.1 was assaulted with a sickle and she had sustained the injuries noted in Ex.P.7, the conviction recorded against accused No.1 under Section 326 read with Section 34 of IPC required to be confirmed. However, there is no evidence whatsoever to sustain the charge against Accused No.2 for the offence under Section 326 IPC. It is borne on record that Accused No.2 was armed with club. The evidence on record indicates that he assaulted P.W.3 on his arms and shoulder. As per the would certificate- Ex.P.6, the injuries sustained by P.W.3 are simple in nature. There is absolutely no evidence to show that any grievous hurt has been caused by Accused No.2 to any of the prosecution witnesses. Therefore, the conviction of Accused No.2 under Section 326 read with Section 34 of IPC cannot be sustained.
9. Further, having regard to the circumstances in which the offence has taken place and especially in view of the fact that the prosecution has not produced any document in proof of the treatment of P.W.1 for the injuries sustained by her, in my view, the punishment of rigorous imprisonment for a period of four years and a fine of Rs.15,000/- each imposed by the trial Court against Accused No.1 for the offence under Section 326 is harsh and excessive and calls for reduction.
10. Therefore, taking into consideration the overall facts and circumstances of the case, in the light of the above discussion, I proceed to pass the following order:
Criminal Appeal Nos.1388/2015 and 1528/2015 filed by Accused Nos.1 and 2 are allowed-in-part. The conviction of Accused No.2 for the offence under Section 326 read with Section 34 of IPC, is set aside. The conviction of Accused Nos.1 and 2 for the offences under Sections 448, 324 and 504 read with Section 34 of IPC is confirmed. The conviction of Accused No.1 for the offence under Section 326 read with Section 34 of IPC is also confirmed.
11. In modification of the sentence awarded by the Court, accused No.1 is sentenced to rigorous imprisonment for a period of three years and a fine of Rs.5,000/- for the offence under Section 326 read with Section 34 of IPC. For the offence under Section 448 read with Section 34 of IPC, Accused Nos.1 and 2 are directed to pay a fine of Rs.1,000/- each; in default, to undergo R.I for a period of three months as ordered by the trial Court. For the offence under Section 324 read with Section 34 of IPC, Accused Nos.1 and 2 shall undergo R.I for one year and shall pay a fine of Rs.1,000/- each. In default to pay the fine amount, they shall undergo R.I for a period of three months each. For the offence under Section 504 read with Section 34 of IPC, Accused Nos.1 and 2 shall undergo R.I for a period of six months and shall pay a fine of Rs.1,000/-; in default to pay the fine amount, they shall undergo further imprisonment for a period of 15 days. The substantive sentence of imprisonment shall run concurrently. Any excess fine amount deposited by the accused shall be refunded to the respective accused.
Out of the fine amount levied on Accused Nos.1 and 2, a sum of Rs.10,000/- shall be paid to P.W.1 by way of compensation.
bnv* Sd/- JUDGE