Karnataka High Court
Maleppa S/O. Bhimappa Hugar vs The State Of Karnataka on 5 April, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL No.2641/2012
BETWEEN:
1. MALEPPA S/O. BHIMAPPA HUGAR,
AGE: 42 YEARS,
R/AT: SHIVAPUR, TQ: BILAGI,
DIST: BAGALKOT.
2. NINGAPPA S/O. KARIYAPPA SHELLIKERI,
AGE: 46 YEARS,
R/AT: SHIVAPUR, TQ: BILAGI
DIST: BAGALKOT.
... APPELLANTS
(BY SRI. MRUTYUNJAY TATA BANGI, ADV.)
AND
THE STATE OF KARNATAKA
THE SUB INSPECTOR OF POLICE
BILAGI POLICE STATION, BAGALKOTE.
... RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER OF CONVICTION PASSED
BY THE SESSIONS JUDGE, BAGALKOT, PASSED IN
CRL.A.NO.75/2010, DATED 28.04.2012 CONVICTING THE
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APPELLANTS FOR THE OFFENCES PUNISHABLE UNDER
SECTION 325 OF IPC, FOR A PERIOD OF ONE YEAR AND
ACQUIT THE APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTION 325 OF IPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
With the consent of both the learned counsels, at the stage of admission itself this matter is taken up for final disposal.
2. Appellants arrayed as accused persons in C.C.No.392/209 on the file of JMFC, Bilagi, have convicted for the offence punishable under Section 324 of IPC and the trial Court has sentenced them to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment for three months. Being aggrieved by the judgment and conviction of the trial Court due to inadequacy of the sentence passed by the trial Court, for the offence under Section 324 of Indian Penal Code, 3 1860 and that the appellants should have been convicted for the offence under Section 325 of Indian Penal Code, 1860, the State challenging the order of the learned Magistrate dated 10.06.2012, has preferred an appeal before the Sessions Judge Bagalkot, in Crl.A.No.75/2010.
3. After hearing both sides, the Sessions Judge has delivered his judgment on 28.04.2012 modifying the order of conviction and sentence passed by the trial Court and substituted its order by convicting the accused persons for the offence punishable under Section 325 of IPC and sentenced them to undergo rigorous imprisonment for 1(one) year and shall pay fine of Rs.1,000/- each and in default to undergo simple imprisonment for 3(three) months. Aggrieved by the order of the learned Sessions Judge, the present appeal is filed before this Court.
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4. At the outset, the learned counsel for the appellants strenuously contends that the trial Court after analyzing the entire materials on record, gravity of offence committed by the accused persons has rightly sentenced the accused persons, under Section 324 of IPC. In fact, in pursuance of the said judgment of conviction and sentence passed by the trial Court, the accused persons promptly deposited the fine amount imposed by the trial Court. They did not challenge the said judgment. When the trial Court has analyzed the evidence of the prosecution witness and the appellate Court also has not deviated itself from such appreciation of facts, but only on technical ground, the Sessions Court has convicted the accused persons for the offence under Section 325 of IPC. When the appreciation of factual materials by the trial court and the Sessions Court are similar, this court in order to ascertain the 5 sentence passed by the sessions Court is proper or not, it may not be just and necessary for this Court to re- appreciate the evidence on record. In order to appreciate the sentence passed by the Sessions Court, whether it is proportionate to the offence committed it is just and necessary to bear in mind few facts of the case.
5. The brief factual matrix of the case are that the Bilagi police have filed the charge sheet against three accused persons by name Malappa S/o Bhimappa hugar, Ningappa S/o Kariyappa Shellikeri and Hanamant S/o Mallappa Shellikeri for the offence punishable under Sections 355, 323, 324, 504 r/w Section 34 of IPC. The Trial Court after hearing both sides, has recorded the plea of the accused, and set down the case for trial. The prosecution in order to prove the guilt of the accused persons examined PWs.1 to 9 and got marked Exhibits Ex.P1 to P5 and recorded 6 the statement of the accused under Section 313 of Cr.P.C. After hearing the arguments, rendered the judgment, convicting accused Nos. 1 and 2 for the offence punishable under Section 324 of IPC and acquitted the accused No.3.
6. It is the case of the prosecution that, on 18.06.2006 at 10.30 a.m. near Mallayya Temple of Shivapur the accused persons picked up quarrel with the complainant and abused him accused Nos. 1 and 2 have also assaulted him with chappal on the face of the complainant and twisted the left foot of the complainant and caused grievous injuries to him. In fact the complainant has supported the case of the prosecution. the evidence of the complainant is supported by the evidence of PW9-doctor. In order to appreciate the sentence passed by the trial Court and the appeallate Court, as conviction order is not challenged virtually 7 before this Court, the evidence of these two witnesses are sufficient for the purpose of ascertaining the gravity of the offence and proportionate of the sentence imposed by the trial court.
7 The injured has categorically stated that accused No.2 assaulted him and twisted his left foot. The injury certificate Ex.P.5 which was issued by PW.9- doctor, General Hospital, Bilagi disclose that on 19.06.2009, x-ray of the left ankle was taken it disclosed anterro lateral fracture of medial malleolus of left ankle, x-ray of the left foot ankle showed anterro fracture of 2nd metatarsal, of left foot. The doctor has opined that injury No.2 is grievous in nature. As rightly observed by the learned Addl. SPP that when the injury is shown to be grievous in nature and the doctor who was examined as PW9, also reiterated the contents of Ex.P.5, then learned Magistrate gets jurisdiction to 8 convict the accused for the offence punishable under Section 325 of IPC.
8. There is absolutely no such allegation against the accused persons, as to they caused any injury by means of using any weapon, but by twisting of the leg of the complaint, such injuries were caused. Therefore, the learned Magistrate ought to have convicted the accused persons for the offence under Section 325 IPC. Therefore, the State has preferred the appeal before the Sessions Court for modification of the said sentence. Section 324 defines that:
Voluntarily causing hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument 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 poison or any 9 corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 325 defines that:
Punishment for voluntarily causing grievous hurt.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
9. On plain reading of the above provisions it is clear that if any offence is committed without using any weapon, if grievous hurt is caused it is punishable under Section 325 of IPC. Looking to the above said two 10 provisions, the punishment prescribed under Section 324 of IPC is imprisonment up to 3 years or fine or both. For Section 325 IPC is imprisonment up to 7 years and shall also liable to pay fine. On perusing the above said two provisions, if accused persons are convicted under Section 324 of IPC, they can be sentenced with fine only. Whereas Section 325 of IPC imposes responsibility on the Court to impose both imprisonment as well as fine.
10. In this particular case as I have already narrated that both courts have come to the conclusion that accused persons have committed some offence under IPC under Section 324 or 325 of IPC, but while imposing sentence of Rs.1,000/- fine, the trial Court in fact basing on the factual aspects and as well as the nature of the allegations made, the accused persons being village people and the incident happened in a fur 11 of moment etc, the simple fine of Rs.1,000/- has been imposed by the trial Court which felt is proportionate to the gravity of the offence. The Appellate Court has come to the conclusion that the appreciation of evidence of the trial Court cannot be disturbed. Therefore, the said factual matrix also similarly appreciated by the appellate Court. Further the Sessions Court has rightly observed that Section 324 of IPC would not have been invoked for conviction and to sentence the accused but Section 325 would have seen the appropriate provision.
11. As I have narrated, the medical certificate and the doctor's evidence clearly discloses fracture to the left foot. Therefore, Section 325 of IPC is attracted. But considering the nature of allegations, made against the accused persons, there is no previous bad antecedents alleged against them they are family holders and agriculturists. Considering all these factual aspects, a 12 lenient view is to be taken to impose punishment upon them. Under the above said circumstances, I am of the opinion that, sentence passed by the trial Court is not proportionate with that of the offence alleged against the accused persons. Hence, the same requires to be reduced.
12. The next question remains for consideration is what should be the punishment that could be awarded. When the trial Court has come to the conclusion that punishment imposed to the accused, in my opinion, cannot be disturbed. For the above said facts and circumstances of the case, the Court requires to impose imprisonment under Section 325 of IPC also. Therefore, I am of the opinion, that if one day imprisonment imposed upon the accused persons to undergo punishment would meet the ends of justice. The accused Nos. 1 and 2 are present before the Court. If, I 13 impose punishment till raising of the Court, in my opinion, that would be sufficient and proportionate for the offences alleged against the accused persons and it also comply the legal requirement under Section 325 IPC. Hence, I proceed to pass the following:
ORDER The appeal is hereby partly allowed.
The judgment passed by the appellate Court for the offence punishable under Section 325 of IPC is not disturbed. The sentence passed by the appellate Court in Crl.A. No.75/2010 dated 28.04.2012 is modified and accused Nos. 1 and 2 are sentenced to undergo simple imprisonment for a period of 1 (one) day till raising of the Court and they have to pay a fine amount of Rs.1,000/-
as ordered by the trial court as well as by the appellate Court.
Learned counsel submits that accused persons have already deposited the fine amount before the trial 14 Court. Therefore, there is no reminder for the accused persons to satisfy the sentence passed by this court.
Hence, the bail bonds and surety bonds stand cancelled.
Sd/-
JUDGE Rms