Karnataka High Court
Naveena vs State Of Karnataka on 26 October, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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NC: 2023:KHC:38061
CRL.A No. 29 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 29 OF 2012
BETWEEN:
1. NAVEENA
S/O KUNDABOREGOWDA
AGED ABOUT 22 YEARS
R/O MARAGOWDANA VILLAGE
HALAGURU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT
...APPELLANT
(BY SRI. R D RENUKARADHYA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally BY HALAGUR POLICE STATION
signed by REP. BY STATE PUBLIC PROSECUTOR
SUMITHRA R HIGH COURT BLDG.
Location: BENGALURU-560001
High Court of ...RESPONDENT
Karnataka (BY SMT. SOWMYA R., HCGP)
THIS CRL.A. IS FILED U/S. 374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:24.12.11 PASSED BY THE
ADDL. S.J., MANDYA IN S.C.NO.94/10 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 326 OF IPC
AND THE APPELLANT/ACCUSED IS SUFFER R.I. TWO YEARS 6
MONTHS AND SHALL PAY A FINE OF RS.5,000/- IN DEFAULT,
HE SHALL SUFFER ANOTHER FOUR MONTHS RIGOROUS
IMPRISONMENT FOR THE OFFENCE P/U/S 326 OF IPC.
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NC: 2023:KHC:38061
CRL.A No. 29 of 2012
THIS APPEAL IS COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the accused against the Judgment and Order of conviction and sentence passed by the Additional Sessions Judge, Mandya, in SC No.94/2010 dated 24.12.2011 for the offence punishable under Section 326 of IPC.
2. The learned Sessions Judge has sentenced the accused to undergo R.I. for 02 years 06 months and to pay a fine of Rs.5,000/- and in default of payment of fine, sentenced him to undergo R.I. for four months. Further, directed him to pay compensation of Rs.10,000/- to PW1 i.e., injured in this case.
3. Brief facts of the prosecution case are that on 28.03.2009, at around midnight at Maragowdanahalli in front of the house of one Girish, when the injured PW1-Shivanna was proceeding by walk, he saw the accused and enquired him with regard to the fine paid by him for teasing a girl from Sagya village. Enraged by the same, the accused picked up quarrel with him and wrongfully restrained him and picked up a club -3- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 which was lying on the ground and hit him on his right eye, right eyebrow, left leg and shoulder and caused grievous injuries.
4. The injured-PW1 was shifted to Primary Health Centre, Halagur, for treatment, wherein he was treated by the Doctor-PW7, who after examining him, issued the Wound Certificate, which is marked as Ex.P3. The injured was also treated by PW8, a Doctor at Mandya, through him Ex.P4-MLC was marked. X-ray report, which is marked as Ex.P6, taken by PW10 reveals that the injured sustained fracture of left tibia.
5. PW9-Head Constable of Halagur Police Station, Mandya District, on receiving the information regarding admission of PW1 at Halagur Hospital, visited the said hospital and recorded the statement of PW1, which is marked as Ex.P1, on the basis of which, Crime No.29/2009 was registered against the accused and issued FIR-Ex.P5 to the jurisdictional Court. Spot mahazar was conducted as per Ex.P2 in the presence of the panch witness namely PW5. The accused was arrested and a club was recovered from the spot. On -4- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 completion of investigation, PW11 laid the charge sheet against the accused.
6. Charges were framed against the accused/appellant for the offence punishable under Sections 341, 504 and 307 of IPC. The accused pleaded not guilty and claimed to be tried. In order to bring home the guilt, the prosecution in all examined 11 witnesses and got marked one material object- MO.1. On behalf of the defence, a portion of the complaint was marked as Ex.D1.
7. The learned Sessions Judge on appreciating the oral and documentary evidence on record was pleased to acquit the accused of the offence punishable under sections 341, 504 and 307 of IPC, however, held him guilty of the offence under Section 326 of IPC and imposed sentence as noted supra.
8. I have heard the learned counsel for appellant and the learned HCGP for the respondent/State and perused the evidence and material on record.
9. In this case, the complainant who is examined as PW1, is none other than the injured himself. The incident has -5- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 taken place on 28.03.2009 at around midnight. It is averred in the complaint that while the complainant was proceeding in front of the house of one Girish, he saw the accused, a resident of his village. He enquired with him about the fine paid for teasing a girl from Sagya village and at that time the accused wrongfully restrained him, abused him and picked up a club which was lying there and assaulted him on the left knee and also on his left shoulder and then pushed him, on account of which he fell down on a stone and sustained injuries over the right eye. When he screamed, one Raju S/o Bomanna and Gowramma W/o Andanigowda came and pacified the quarrel. Thereafter the accused threw the club and went away threatening him with dire consequences. It is further averred that Gowramma-PW2 informed the matter to his mother Mallamma and thereafter his mother and one Chikkaputtegowda-PW4 shifted him in vehicle to Halagur hospital.
10. PW9-Head Constable of Halagur Police Station has deposed in his evidence that on 29.03.2009 at about 8.15 a.m., when he was in police station, he received information from Halagur Hospital about the admission of the -6- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 injured, as such he went to the said Hospital and recorded the statement of PW1 as per Ex.P1. Thereafter, he returned to the police station and registered a case against the accused and issued the FIR to the jurisdictional Court. Further he has proceeded to the spot and drew the spot panchanama-Ex.P2 in the presence of PW5 and recovered MO1-club, which was shown by CW2-Raju.
11. It is contended by the learned counsel for the appellant that there is serious discrepancy and contradictions with regard to the time of incident. He would contend that according to the prosecution the incident took place at around 12.00 midnight, whereas one of the eyewitness examined as PW2 has stated that the incident took place at around 3.00 a.m. He has further contended that the incident has taken place in front of the house of one Girish, according to prosecution and CW2 by name Raju was an eyewitness to the incident whose name is mentioned in the FIR. However, neither Girish nor Raju has been examined by the prosecution. It is also contended that as per the evidence of the prosecution witnesses there were 15-20 persons who had gathered at the -7- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 scene of occurrence but none of them have been examined. He, therefore contends that the entire case of the prosecution is false and on account of previous enmity, the accused has been falsely implicated in this case.
12. Per contra, the learned High Court Government Pleader has contended that the injured is the best witness. He speaks about the incident and his evidence is supported by the evidence of eyewitnesses namely PWs.2, 3 and 6 and his evidence is further corroborated by the evidence of the medical officers. She further contends that the trial Court considering the oral and documentary evidence on record and considering that the injured has sustained grievous injuries has rightly convicted the accused for the offence punishable under Section 326 of IPC. She has therefore sought to dismiss the appeal.
13. PW1 namely the injured has corroborated the complaint averments in his evidence. He has stated about the accused assaulting him with a club and causing injuries to him. He has deposed about lodging the complaint as per Ex.P1 and also identified the club-MO.1. There is nothing elicited in his -8- NC: 2023:KHC:38061 CRL.A No. 29 of 2012 cross-examination so as to disbelieve his evidence with regard to the assault on him by the accused with a club.
14. PWs.2, 3 and 6 are the eyewitnesses examined by the prosecution who have also deposed regarding the incident. All the said witnesses have stated that they have seen the accused assaulting the injured-PW1 with a club. Having gone through their cross-examination meticulously, this Court finds that there is nothing elicited so as to disbelieve their evidence with regard to the assault made by the accused. It is no doubt true that PW2 has deposed in his evidence that when he came out of the house at around 3.00 a.m. for answering the call of nature, he saw the accused assaulting PW1 with a club. The said discrepancy with regard to the timing itself is not sufficient to hold that the entire case of the prosecution is false or frivolous. PW1 i.e., the injured as well as other two eyewitnesses i.e., PWs.3 and 6 have stated that the incident has taken place at around 12.00 in the midnight. Non examination of CW2-Raju or one Girish is also not fatal to the prosecution case, in view of the evidence of the injured and the medical evidence.
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NC: 2023:KHC:38061 CRL.A No. 29 of 2012
15. PW7 is the Medical Officer at Primary Health Centre, Halagur. He has stated that on 29.03.2009 at about 9.00 a.m. while he was on duty in the hospital, the injured Shivanna i.e., PW1 was brought to the hospital for treatment for the injuries sustained by him in a quarrel. He has examined him and issued Ex.P3. He has stated that the injuries shown in Ex.P3 can be caused with a club. As per Ex.P3, PW1 sustained swelling over the right eye, abrasions over the eyebrow and swelling on the left knee. PW1 was referred to a higher hospital.
16. PW8 is a Medical Officer who has treated PW1 at a hospital in Mandya. He has stated that he examined PW1 at about 2.00 p.m. on 29.03.2009. He has referred PW1 to the Orthopedic Surgeon i.e., PW10, who took X-ray of the left leg as per Ex.P6 and found that there was a fracture of tibia.
17. A combined reading of the entire evidence of the prosecution witnesses namely PW1, PWs.2, 6 to 8 and PW10, goes to show that the injured-PW1 was assaulted with a club by the accused on the night intervening 28/29.03.2009, on
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NC: 2023:KHC:38061 CRL.A No. 29 of 2012 account of which, he sustained a fracture, which is a grievous injury.
18. According to the prosecution, the accused with an intention to take away the life of the injured, assaulted him with a club and therefore committed an offence punishable under Section 307 of IPC and other charged offences. The trial Court has found the accused not guilty of the offence punishable under Section 307 of IPC, however, considering that PW1 had sustained fracture of left tibia, held him guilty of the offence punishable under Section 326 of IPC.
19. In this case, a careful perusal of the evidence of PW1 goes to show that there was no intention or premeditation on the part of the accused to commit the offence. Even as per Ex.P1 and the evidence of PW1, during midnight, when the complainant was proceeding in front of the house of one Girish, he saw the accused who was proceeding by walk and then he enquired with him about the fine paid by him for having teased a girl from Sagya village and at that time the incident took place. It is pertinent to see that the accused was not at all armed with any weapon at the time of incident and he did not
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NC: 2023:KHC:38061 CRL.A No. 29 of 2012 start the quarrel. On the other hand, when the complainant enquired him about the fine paid for teasing a girl from Sagya village, the accused got enraged and picked up a club which was lying on the ground and assaulted the complainant. Therefore, under these circumstances, it cannot be said that the offence committed by the accused would attract the ingredients of Section 326 of IPC. On the other hand, the offence would fall under Section 335 of IPC. The accused has voluntarily caused grievous hurt in a quarrel and on provocation.
20. The punishment provided for the offence under Section 335 of IPC is imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both.
21. The incident has taken place in the year 2009. Fourteen years have lapsed. No untoward incident has taken place between the accused and the complainant subsequent to the incident in question. It is submitted that the accused is married and having two children. The trial Court record would reveal that the accused was in custody from 19.05.2011 to
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NC: 2023:KHC:38061 CRL.A No. 29 of 2012 25.05.2011 after committal of the case to the Court of Sessions. Sentencing the accused to imprisonment at this stage would not serve any purpose. In the facts and circumstances of the case, the imprisonment already undergone by the accused may be held sufficient. Hence, the following:
ORDER i. The appeal is allowed in part. ii. The Judgment and Order dated 24.12.2011 passed by the Court of the Additional Sessions Judge, Mandya, in SC No.94/2010, convicting and sentencing the accused/appellant for the offence punishable under Section 326 of IPC is hereby set aside.
iii. The accused/appellant is convicted for the offence punishable under Section 335 of IPC and he is sentenced to the period he has already undergone. Further, he shall pay a fine of Rs.2,000/- and in default of payment of fine, he shall undergo simple imprisonment for a period of one month.
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NC: 2023:KHC:38061 CRL.A No. 29 of 2012 iv. The accused/appellant is directed to pay compensation of Rs.20,000/- to PW1-injured under Section 357(3) of Cr.P.C. within a period of six weeks.
Sd/-
JUDGE TL List No.: 1 Sl No.: 26