Karnataka High Court
M Ramesh vs State By Bidadi Police on 22 December, 2021
Author: V. Srishananda
Bench: V. Srishananda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO. 180 OF 2012
BETWEEN:
1. M. RAMESH,
S/O MUNIYAPPA,
AGED ABOUT 40 YEARS,
2. KRISHNA @ KRISHNAMURTHY,
S/O MUNIYAPPA,
AGED ABOUT 31 YEARS,
WORKING AS BMTC
DRIVER CUM CONDUCTOR,
BOTH ARE RESIDENTS OF
VAJARAHALLI VILLAGE,
BIDADI HOBLI,
RAMNAGARA TALUK AND DISTRICT.
...PETITIONERS
(BY SRI. VIKYATH, ADVOCATE FOR
SRI. S. SHANKARAPPA AND ASSTS)
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AND:
STATE BY BIDADI POLICE
REPRESENTED BY S.P.P.
HIGH COURT BUILIDNG,
BENGALURU.
...RESPONDENT
(BY SRI. V.S. VINAYAKA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 06.10.2008 PASSED BY
THE CIVIL JUDGE (JR.DN) AND JMFC, RAMANAGARAM IN
C.C.NO.216/2006 AND ORDER DATED 17.01.2012 PASSED
BY THE DISTRICT AND SESSIONS JUDGE, RAMANAGARA
IN CRL.A.NO.44/2008.
THIS CRIMINAL REVISION PETITION COMING FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
As Sri. Vikyath, learned counsel is representing for the revision petitioners, learned Amicus Curiae is discharged.
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2. Heard Sri. Vikyath, learned counsel for revision petitioner and Sri. V.S. Vinayaka, learned High Court Government Pleader for respondent - State and perused the records.
3. The present revision petition is filed against the order passed in C.C.No.216/2006, whereby the accused-revision petitioners came to be convicted for the offence punishable under Section 326 and 324 of IPC which was confirmed in Crl.A.No.44/2008.
4. The brief facts of the case are that:
Upon a complaint lodged by Thulasamma, the Bidadi Police registered a case in Cr.No.78/2006 for the offence punishable under Sections 326 and 324 read with 34 of IPC against the revision petitioners. In the complaint averments, it is contended that the complainant is residing with her husband - 4 Rajamurthy-PW3 and brother-in-law - Lakshmana and his wife. On 18.02.2006 at 7.00 p.m., when the complainant and other family members were in their house, the accused Nos.1 and 2 on account of previous enmity relating to the land dispute, came to their house and in furtherance of their common intention, accused No.1 assaulted the complainant with club on her head, while accused No.2 assaulted with machete on her left hand causing bleeding injury. Similarly, they have also assaulted her husband on his face causing bleeding injury. When her brother-in-law Lakshmana and sister Bhagyamma tried to intervene in the quarrel, the accused also dealt blows on their head and other parts of the body with club and machete resulting in serious injury and in the meantime the neighbors and others gathered there and pacified the quarrel and thus sought for taking action against the revision petitioners. 5
5. The Bidadi police after registering the case, investigated the matter in detail and after thorough investigation laid a charge sheet against the revision petitioners for the offence punishable under Section 324 and 326 of IPC.
6. The learned trial Magistrate after taking cognizance for the aforesaid offences, secured the presence of the revision petitioners and framed charge. The accused persons pleaded not guilty and therefore trial was held. In order to prove the case of the prosecution, the complainant - Thulasamma, injured witnesses - Bhagyamma, Rajamurthy, Lakshmana, Venkatalakshmamma were examined as PWs.1 to 5, PW- 6 is the panch witness and PW-7 is the doctor, who issued Exs.P3-P5 and Hanumantharayappa and Anand were also examined apart from investigating agency and in all 11 6 witnesses were examined to substantiate the charges leveled against these revision petitioners. The prosecution also relied on nine documentary evidence comprising of the Wound Certificate issued by PW7 vide Ex.P3 to P6. The prosecution also relied on the machete and the club which was used in the incident and marked the same as Material Objects 1 and 2.
7. The complainant and injured witnesses with graphic details reiterated the contents of the complaint and the above incident. Despite cross examination, defence is unable to elicit any material which would disprove the allegations made by the complainant in the complaint averments. On conclusion of the material evidence on record, the learned Magistrate recorded the accused statement as contemplated under Section 313 of Cr.P.C., wherein, the accused persons denied all the incriminatory 7 circumstances. However, the accused persons failed to place their version about the incident either by examining themselves or by placing any written submission as is contemplated under Section 313(5) of Cr.P.C.,
8. Thereafter, the learned trial Magistrate heard the parties in detail and after considering the oral and documentary evidence on record passed an order of conviction convicting the accused persons and sentenced to undergo one year and six months simple imprisonment with fine of Rs.10,000/- and Rs.5,000/- each for the offence punishable under Sections 326 and 324 of IPC. Out of the fine amount, a sum of Rs.9,500/- shall be paid to PW-2 as compensation and Rs.4,500/- each was ordered to be paid as compensation to both complainant and Bhagyamma in a sum of Rs.4,500/- each.
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9. Being aggrieved by the same, the accused
- revision petitioners filed an appeal before the District Court, Ramanagara in CrL.A.No.44/2008. The learned judge in the First Appellate Court after securing the records and considering the arguments put forth by the parties, in the light of the grounds urged in the appeal, dismissed the appeal filed by the accused by judgment dated 17.01.2012 whereby the order of conviction and sentence passed by the Magistrate stood confirmed. Being aggrieved by the same, the accused persons are before this Court in this revision petition.
10. In the revision petition, the following grounds are raised.
x Both the courts below gravely erred in convicting the petitioners for the offences punishable under Section 326 of IPC against petitionoer No.1 and sentenced to undergo S.I. for a period of one year and fine of rupees 10,000/- and both the petitioners are sentenced to undergo S.I. for a period of 6 months and fine of Rs.5,000/- and in default of 9 payment of fine amount they shall undergo further S.I. for a period of one month and sentence shall run concurrently is manifestly erroneous and opposed to the facts and circumstances of the case.
x Both the courts below gravely erred in holding that, Ex.P1 and 2 said to have been registered on 18.02.2006 at about 8.45 pm by PW-6 but Ex.P1 and 2 received by the jurisdictional magistrate on 20.02.2006 at about 11 am this clearly establish that Ex.P7 the spot Mahazer wherein MO1 and 2 said to have been seized only after the seizure Ex.P1 and 2 have been came into existence and this delay is not at all explained by the prosecution. This important aspect is completely ignored by both the court below.
x Both the courts below gravely erred that even according to prosecution PW-1 to 4 are injured witnesses but these injured witnesses said to have been treated by PW-7 at Bidadi government Hospital and this PW-1 and 2 have got treated by PW-7 on 19.02.2006 at about 6.30 pm and the History given by them before the doctor as per Ex.P3 and 6 respectively is that they have been assaulted by unknown people on 18.02.2006 at about 8.30 pm this important medical contradiction is completely ignored by both the court below.
x Both the courts below gravely erred that, even PW-1 to 5 have clearly admitted in their cross examination that there was a partition between the parents of the petitioner and PW- 1, 3 and 4 have taken place about 30 years back and inspite of that a civil case has been filed by PW-1 to 4 and even before A.C. Courts, it was held in favor of the petitioners. 10 Even PW-1 to 5 clearly admitted that the Neem tree which is grown in the land of the petitioners which has been cut and removed from their land and where as the neighbors land of the petitioners which is belonging to PW-1 to 4 was sold in the year 1994 itself then the question of Neem tree existence in their land as on the date of 18.02.2006 is completely contrary this important aspect is completely ignored by both the court below. x Both the Courts below gravely erred that, even PW-7 who treated PW-1 to 3 on 19.2.2006 and till then who treated their injuries there is no explanation from the prosecution and infact the injuries sustained by the PW-1 to 3 are all simple in nature and even PW-7 did not confronted whether the said injuries can be caused by the said MO.1 and 2 and infact injuries sustained by injured in Ex.P3, 4, 5, 6 cannot be caused by said MO.1 and 2. This medical contradiction is not at all appreciated by both the court below. x Both courts below gravely erred that, even according to prosecution the MO.1 and 2 said to have been kept in the house of PW.1 between 9 am., to 9.45 am., and MO.1 and 2 was produced by PW.1 under Ex.P7 but PW.1 is not a panch to Ex.P7 and those MO1 and 2 kept in the house of PW1 itself, apart from that even the place of occurrence not proved by prosecution and according to prosecution the injured sustained bleeding injuries but the blood stains was not seized and even the witness not spoken about the light inside the house. This important aspect is completely ignored by both the court below.
11x Both the Court below gravely erred that, even according to the version of PW-5 that PW-1 to 3 had been to the house of the petitioners to ask about the removal of Neem tree in the land of he petitioner at that time there was a quarrel this clearly establishes a contradiction of version of PW1 to PW5 as to their history given before the doctor and delay of reaching Ex.P1 and 2 to the jurisdictional magistrate this important aspect is completely ignored by both the court below.
x Both the court below gravely erred that, for convicted the petitioner No.1 for the offence punishable under Section 326 of IPC as if PW-2 sustained grievous injuries but the doctor who examined PW-2 on 28.02.2006 who has not produced and X-ray nor PW-7 did not gave any evidence regarding the grievous nature of the injuries still the Court below convicting the petitioner No.1 for offence punishable under 326 of IPC is highly unsustainable in law.
x Both the court below gravely erred that, even though admittedly there was a case and counter case and the case instituted by the petitioners with regard to assault on their father has been closed by filing B report and the police by colluding with the complainant in this case has been falsely implicated the petitioners. This aspect is completely ignored by both the Court below.
x The petitioners further submits that, both the petitioners are married and having school going children and in their absence there is nobody to look after their family this aspect is not at all appreciated by both the courts below. 12
11. Reiterating the above grounds, learned counsel Sri. Vikyath, for revision petitioner representing Sri. S. Shakarappa, vehemently contended that both the courts have not properly appreciated the material evidence on record and wrongly passed an order of conviction resulting in miscarriage of justice and sought for allowing the revision petition. Alternatively he contended that material evidence on record does not warrant conviction for the offence under Section 326 IPC in the absence of original X-Ray film produced by the prosecution or the Radiology report and therefore, the trial Magistrate ought not to have convicted the accused for the offence punishable under Section 324 of IPC. Therefore, this Court may scale down from 326 to 324 IPC and grant probation to accused persons as they are first time offenders. 13
12. Per contra, learned High Court Government Pleader supported the impugned judgment by contending that the injured witnesses have categorically deposed before the Court about the incident. He further pointed out the material evidence on record depict that there was previous enmity between the parties on account of the land dispute and on the date of the incident the accused Nos.1 and 2 voluntarily entered the house of the accused and assaulted Bhagyamma and Rajamurthy, Lakshmana and Venkatalakshmamma and therefore, the prosecution is able to prove all ingredients. He pointed out that wound certificates produced by the prosecution and marked at Exs.P3 to P6 in respect of Bhagyamma clearly indicate that injuries sustained by Bhagyamma is grievous injuries and therefore learned trial Magistrate is justified in passing an order of conviction against accused Nos.1 and 2 for the offence 14 punishable under Sections 324 and 326 IPC and sought for dismissal of the revision petition.
13. In so far as the alternate arguments are concerned, learned High Court Government pleader contended that in every case filing of the X-Ray or Radiology report is not a must and oral evidence of Doctor - PW-7, coupled with the wound certificates issued and marked at Ex.P3 and P6 are enough to classify the injuries as grievous injuries. Therefore, sought for dismissal of the revision petition in toto.
14. In view of the rival contentions and having regard to the limited scope of the revisional jurisdiction, following points would arise for consideration:-
i. Whether the finding recorded by the learned trial Magistrate confirmed by the First Appellate Court that the accused persons are guilty of the 15 offences punishable under Section 324 and 326 IPC is suffering from legal infirmity, patent factual defect or perversity and thus calls for interference?
ii. Whether the sentence is excessive?
15. In the case on hand, the incident that occurred in the house of complainant - Thulasamma, who is examined as PW1 on 18.02.2006 at about 7.00 p.m., whereby the accused persons assaulting Bhagyamma, Raja Murthy, Lakshmana, Venkatalakshmamma causing bleeding injuries is established by the prosecution by placing necessary oral and documentary evidence on record. It is to be considered that there exists a previous enmity between the parties in respect of the land dispute. In furtherance of the same, the accused persons have voluntarily caused hurt to the above said injured 16 persons. It is settled principle of law that the oral testimony of the injured eye witnesses stands on higher pedestal and accused is required to place such material on record so as to disbelieve the oral testimony of the injured eye witness. The cross- examination of the prosecution witnesses does not indicate any such material being elicited in such cross examination whereby the Court can disbelieve the oral testimony of the injured witnesses. The injuries noted by the Doctor -PW7, corroborates the incident. The Wound Certificates marked at Exs.P3- P6 sufficiently establish the injuries sustained by Bhagyamma and others in the incident. There is no much delay in lodging the FIR. All these factors have been rightly appreciated by the learned trial Magistrate to conclude tht the accused persons have voluntarily caused hurt by using M.Os.1 and 2 to Bhagyamma, Raja Murthy, Lakshmana, Venkatalakshmamma vide Exs.P3-P6. 17
16. Therefore, absolutely there is no material on record to hold that the order passed by the trial Magistrate convicting the accused person is incorrect. However, it is a legal requirement that the prosecution in order to classify the injury as grievous injury so as to prove machete there is no evidence produced such as X-Ray and radiology report. Failing to do so, the oral testimony of the Doctor, who classifies the injury as grievous injury needs to be doubted.
17. In this regard the Division Bench of this Court in the case of STATE VS. SHEENNAPPA GOWDA AND ORS reported in 2011(4) KCCR 2759, carefully considered the said aspect of the matter, which reads as under:
"11. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It 18 is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Indian Penal Code is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond resonable doubt. The evidence of PW.1 would only show that there was injury as described in the wound certificate - Ex.P2 When PW. 1 suspected such fracture, he ought to have referred the injured - PW. 4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat unless the prosecution produces 19 the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW. 1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1 However, he same would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW. 1 Doctor only on clinical examination of PW. 4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos. 1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C and the offence committed by them falls within the ambit of Section 324 of I.P.C is justified". 20
18. Applying the legal principles enunciated in the above decision to the case on hand, the trial Magistrate ought not to have considered the injuries sustained by Bhagyamma as depicted in Exs.P3-P6 as grievous injury. Therefore, in the absence of sufficient evidence, the finding recorded by the learned trial Magistrate and confirmed by the First Appellate Court in classifying the injury sustained by Bhagyamma needs to be interfered and to be scaled down as simple injury. Consequently, the accused cannot be convicted for the offence punishable under Section 326 IPC and conviction of the accused under Section 324 needs to be maintained. Accordingly, the point No.1 is answered 'Partly in the affirmative'.
Regarding Point No.2.
In view of Court's finding on point No.1, scaling down conviction from 326 to 324 IPC and since the accused persons are first time offenders, this Court 21 can very well exercise the power vested in this Court and grant probation by directing the accused persons to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the trial Magistrate and ordered to pay a fine of Rs.25,000/- each would meet the ends of justice. Accordingly, point No.2 is answered in the 'Affirmative' and pass the following -
ORDER i. The Criminal revision petition is allowed in part.
The order passed by the learned trial Magistrate confirmed by the First Appellate Court is modified as under:-
a. The accused persons are convicted for the offence punishable under Section 324 IPC and directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the 22 learned trial Magistrate for their good behavior, which shall be in force for a period of two years from the date of execution of the bond and to pay fine of Rs.25,000/- each for the offence punishable under Section 324 with default sentence of one year simple imprisonment payable on or before 31.01.2022.
b. Out of the fine amount recovered, a sum of Rs.25,000/- be paid as compensation to Bhagyamma and
Rs.5,000/- to Rajamurthy, Rs.5,000/- to Lakshmana and Rs.5,000/-to Venkatalakshmamma who are PWs-2 to 5.
c. The balance amount shall be appropriated to the State towards defraying expenses. d. It is made clear that any violation of
the bond conditions or non-payment of the fine amount, the accused persons shall undergo simple imprisonment for a period of one year.23
Ordered accordingly.
Office is directed to return the trial Court records along with a copy of this order forthwith.
Sd/-
JUDGE AG