Karnataka High Court
Hajaresabs/O.Rajimiya Malagi @ Tanga, vs State Of Karnataka Rep By State Public on 5 July, 2017
Author: R.B Budihal
Bench: R.B Budihal.
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B.
CRIMINAL REVISION PETITION NO.2395/2010
BETWEEN:
HAJARESAB
S/O RAJIMIYA MALAGI @ TANGA
AGE: 51 YEARS, OCC: DRIVER
R/O.FISH MARKET GALLI
TQ & DIST:HAVERI
... PETITIONER
(BY SRI PATIL M H, ADVOCATE)
AND
STATE OF KARNATAKA
REP BY STATE PUBLIC PROSECUTOR
CIRCUIT BENCH, DHARWAD
... RESPONDENT
(BY SRI R.RAVEENDRA NAIK, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397(1) OF CR.P.C. SEEKING TO SET ASIDE THE ORDER
PASSED BY THE SESSIONS JUDGE, HAVERI,
CRL.A.NO.15/2005 DATED 13.08.2010 AND JUDGEMENT
AND SENTENCE PASSED BY THE CHIEF JUDICIAL
:2:
MAGISTRATE, HAVERI, IN C.C.NO.20/2004 DATED
25.01.2005.
THIS PETITION COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition is preferred by the petitioner/accused under Section 397(1) r/w 401 of the Cr.P.C. praying the Court to set aside the order passed by the Sessions Court, Haveri in Criminal Appeal No.15/2005 dated 13.08.2010 and also to set aside the judgment and sentence passed by the J.M.F.C., Haveri in C.C.No.20/2004 dated 25.01.2005.
2. Brief facts of the prosecution case that PW1 lodged the complaint in this case, wherein he has alleged that on 05.11.2002 at about 5.20 p.m. in Haveri Town on the road leading towards Fish Market and Pendar Street of Anganawadi, the accused and one Akbar were quarreling by exchanging words. Complainant Chamansab gone to pacify the quarrel, at :3: that time accused enraged against the complainant and assaulted by means of hand and abused him in filthy language with an intnetion to insult him and gave provocation to the said Chamansab, who bit the left ear of the complainant by his teeth, thereby caused the grievous injury. Immediately, the complainant was taken to the hospital with the help of his brother-PW4 and thereafter he lodged the complaint before the police, on the basis of which case came to be registered for the offences punishable under Section 323, 326 and 504 of I.P.C.
3. Thereafter, after investigation the Investigation Officer filed the charge sheet against the petitioner/accused for the offences punishable under Sections 323, 326 and 504 of I.P.C. To prove its case, prosecution in all examined 7 witnesses and got marked documents Ex.P1 to P8, so also got marked M.O.No.1 and closed its side. On the side of the defence, no :4: witnesses examined nor any documents were produced before the trial court.
4. After considering the merits of the case both oral and documentary, the trial court held the revision petitioner/accused guilty for the offences under Section 323 and 326 of the I.P.C. and acquitted him for the offence under Section 504 of the I.P.C. Being aggrieved by the judgment and order of conviction, revision petitioner preferred the appeal before the first appellate court and the first appellate court after re-appreciating the materials also dismissed the appeal confirming the judgment and order of conviction and the sentence passed by the trial court. Being aggrieved by the same, the revision petitioner/accused is before this Court in this revision petition.
5. The revision petitioner/accused challenged the legality and correctness of the judgment and orders :5: of the courts below on the grounds as mentioned in the memorandum of revision petition.
6. Heard the learned counsel appearing for the revision petitioner/accused and also the learned HCGP for the respondent -State.
7. Learned counsel for the petitioner made the submission that looking to the oral and documentary evidence, the trial court wrongly proceeded to convict the revision petitioner/accused for the said offences. He made the submission that during the course of cross- examination, PW5 the Doctor has admitted that such type of injury could be caused, if there is a bite by the human being or by the monkey. Hence, he made the submission that looking to the evidence of other witnesses PW4 the brother of the complainant is a hearsay witness and PW6 turned hostile, not supported the prosecution case. PW3, who is said to be one of the witnesses to the incident also turned hostile and not :6: supported the case of the prosecution. Learned counsel submitted that except the evidence of PW1, there is no other material on the side of the prosecution to support the prosecution case. Hence, he submitted that the trial court wrongly convicted the revision petitioner/accused and even with regard to the sentence aspect also learned counsel alternatively made the submission that in case if the judgment and orders of the courts below are upheld by this Court, the sentence imposed by the trial court which is confirmed by the first appellate court i.e. six months imprisonment with fine is on the higher side and hence learned counsel submitted that the sentence aspect is to be considered and modified by this Court by imposing higher fine instead of six months imprisonment in the case.
8. Per contra, the learned High Court Govt. Pleader made the submission that looking to the judgment and order of conviction passed by the trial :7: court, so also the judgment and order passed by the first appellate court, there are concurrent findings of the courts below regarding the factual aspect about the incident. He also take this Court through the judgments of the courts below to the relevant paragraphs with regards to the observation made by the court regarding Doctor's evidence and the observation that the prosecution case is supported by medical evidence. Hence, he made the submission that no illegality has been committed by the courts below in coming to such conclusion and there is no merit in the case of the petitioner, same is to be rejected.
9. I have perused the grounds urged in the petition memorandum, judgment and order of the courts below, oral evidence of the prosecution witnesses PW1 to 7 and the documents produced in the case by the prosecution, so also I have considered the oral :8: submissions made by the learned counsel on both sides at the Bar.
10. Looking to the materials placed on record, the complainant/PW1 is the injured witness in this case and immediately after the incident he was taken to the hospital, then he went to the police station and lodged the complaint as per Ex.P1. Looking to the judgment of the trial court, the trial court accepted the oral evidence of PW1 and it is also observed by the trial court that his evidence is supported by medical evidence i.e. evidence of PW5 the Doctor. It is no doubt true that the other witnesses PW3 and 6 turned hostile, but when the complainant is the injured witness, the accused has to establish the case why his evidence should not be accepted by the court. Normally the injured witnesses will not leave the real culprits by substituting another accused in his place. Looking to the prosecution material, the courts have rightly observed that the :9: evidence of PW1 supported by the Doctor's evidence PW5, so also the panch witness PW2 as worth believable. Materials also goes to show that the PW2 panch witness deposed in his evidence that in his presence the spot panchanama was conducted and the shirt of the accused which was bloodstained was also seized in his presence. Hence, taking into all these aspects into consideration the trial court comes to the conclusion in holding that the accused is guilty for two offences 326 and 323 of the I.P.C. The appellate court judgment goes to show that there is a re-appreciation of the material by the appellate court also and ultimately it also comes to the conclusion that there is no merit in the appeal and accordingly appeal is dismissed. We are in revision petition, the scope of the revision petition is limited. The revisional court cannot re-appreciate the evidence adduced by the parties unless it is shown by the revision petitioner/accused in this petition that there is a wrong reading of the evidence of the parties by : 10 : the courts below and which leads to grave illegality in the matter. Unless and until the said illegality is established by the revision petitioner/accused, there are no grounds for this Court to interfere into the concurrent findings of the courts below. Looking to the judgment and order of the courts below, I do not find any illegality in the judgment and orders of the courts below. Hence, there are no grounds to interfere into the same either to modify or to set aside the judgments of the courts below.
11. I have also considered the submissions made by the learned counsel for the revision petitioner/ accused on the sentence aspect. The trial court imposed the sentence of only six months with fine so far as the offence under Section 326 of I.P.C. which is a serious offence and it is proved that there was a grievous injury sustained by the complainant/PW1. Therefore, the sentence imposed by the trial court, which is confirmed : 11 : by the first appellate court is reasonable and proper. There are no grounds even to modify the sentence of imprisonment into fine only. Accordingly, the said contention of the learned counsel for the revision petitioner/accused is not accepted in that regard. Hence, no merits in the revision petition. Accordingly, same is hereby rejected.
Sd/-
JUDGE CLK