Karnataka High Court
Ramachandrappa S/O Bhimappajja vs The State Of Karnataka on 5 March, 2013
1 Crl.A 587/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF MARCH, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.587 OF 2006
BETWEEN:
1. Ramachandrappa,
S/o. Bhimappajja,
Aged about 30 years,
Occ: Agriculture,
2. H. Mylari @ Kutti,
S/o. Hanumanthappa,
Aged about 22 years,
Occ: Agriculture,
3. K. Ravi,
S/o. Krishnappa,
Aged about 22 years,
Occ: Agriculture,
4. Ganesh,
S/o. Mariyappa,
Aged about 25 years,
Occ: Vegetable Merchant,
All are R/o:
Vidhyanagara Holehonnur Pete,
Taluka: Bhadravathi,
District: Shimoga.
... APPELLANT/S
[By Sri. R.B. Deshpande, Adv.]
2 Crl.A 587/06
AND:
The State of Karnataka. ... RESPONDENT/S
[By Sri. Rajesh Rai K., HCGP.]
***
This Crl.A. is filed u/Section 374(2) Cr.P.C
against the Judgment dt.31-1-06 passed by the P.O.,
FTC-I, Shimoga, in S.C. No.80/2004 - convicting
the appellant-accused for the offences punishable
under Sections 324, 326, 448, 427 read with
Section 34 of IPC and sentencing them to undergo
rigorous imprisonment for 2 months for the offence
punishable under Section 324 read with Section 34
of IPC and sentencing them to undergo rigorous
imprisonment for 2 months for the offence
punishable under section 448 read with Section 34
of IPC and sentencing them to undergo rigorous
imprisonment for 1 month for the offence
punishable under Section 427 read with 34 of IPC
and further sentencing them to undergo rigorous
imprisonment for 1 year and to pay fine of
Rs.1000/- each for the offence punishable under
Section 326 read with Section 34 of IPC in
default, to undergo rigorous imprisonment for 2
months. The imprisonment shall run concurrently
except the sentence on default of payment of fine.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellants have challenged their conviction and sentence for the offences 3 Crl.A 587/06 punishable under Sections 324, 326, 427, 448 r/w. 34 IPC., on a trial held by the Fast Track Court, Shimoga.
2. The facts relevant for the purpose of this appeal are as under:
On 26.10.2002, at about 10.00 a.m., appellant No.1 [accused No.1] was indulged in illegal transportation of liquor on his motorcycle bearing reg. No.KA 14-4596 and at that time, P.W.1-Mohan was a Raid Manager, employed by one N.T.Prakash, an Excise Contractor, with the assistance of other persons tried to apprehend appellant No.1, but he escaped on his motorcycle.
On the same day, at 11.15 p.m., P.W.1-Mohan, P.W.2-Syed and C.Ws.3, 4 and 5 who were working near the office of the Excise Contractor- N.T.Prakash near Nrupathunga circle at Holehonnur Pete. At that time, it is alleged that the appellants/accused in furtherance of their common 4 Crl.A 587/06 intention to assault P.Ws.1 and 2 and C.Ws.3 to 5, armed with iron rod, knife, club, etc., and appellant No.1 assaulted C.W.2-Srinivas with long on his head, stomach, hand, face, etc., and caused bleeding injury; appellant No.2 assaulted P.W.2- Syed with knife on his face and other parts of the body and caused grievous injury; appellant No.3 assaulted C.W.4 with club all over the body and caused bleeding injury and appellant No.4 assaulted the complainat-P.W.1 with rod. As the injured fell down on the ground, the appellants thought that they have caused their death, entered the Excise Contractor's office and damaged the table, chamber and caused loss to an extent of Rs.600-00 and appellant No.1 assaulted C.W.5 with long and caused bleeding injury and escaped from the scene of occurrence.
P.W.1-Mohan approached the Police and submitted his complaitn-Ex.P1, which came to be registered in Crime No.172/02 for the offence 5 Crl.A 587/06 punishable under Sections 324, 307, 448, 427 r/w. 34 IPC. During the course of the investigation, spot mahazar-Ex.P2 was held in the presence of the attesting witnesses and M.Os.1 to 3 were seized.
Statements of the witnesses were recorded. Injured was shifted to the hospital and on the arrest of the appellants, their voluntary statements were recorded as per Exs.P12 to 15. They led the Police and panchas and in the presence of the witnesses produced weapons-M.O.4- iron rod, M.O.5-knife, M.O.8-long, M.O.9-club and they were seized under the mahazars. The clothes- M.Os.6, 7, 10 to 12 of the injured were also seized under different mahazars. After collecting the injury certificates-Exs.P4 to 8 and the relevant documents, charge-sheet was laid against the appellants for the charge under Sections 324, 307, 448, 427 r/w. 34 IPC and for other allied offences.
6 Crl.A 587/06
During the trial, the prosecution examined 12 witnesses, marked the documents Exs.P1 to 18 and M.Os.1 to 12. Statements of the accused were recorded under Section 313 Cr.P.C. They took the defence of total denial and no defence evidence was led.
The trial Court heard learned counsel for the parties and on appreciation of the material on record, convicted the appellants for the charges under Sections 326, 324, 427, 448 r/w 34 IPC and for the major offence under Section 326 r/w. Section 34 IPC., ordered imprisonment for one year and to pay a fine of Rs.1,000-00 each with default sentence and lesser sentences for other offences. Aggrieved by the conviction and sentence, the present appeal is filed.
3. I have heard learned counsel for the appellants and also the learned High Court Government Pleader.
7 Crl.A 587/06
4. The point that arises for my consideration is;
Whether the appellants have made out any grounds to warrant interference in their conviction and sentence for the offences punishable under Sections 326, 324, 427, 448 r/w 34 IPC.?
5. Learned counsel for the appellants would contend that except the evidence of injured-P.Ws.1 and 2, there is no other evidence to corroborate their version and therefore, he contends that the trial Court committed an error in accepting such evidence and awarding conviction. So also, he submits that the sentence ordered by the learned Sessions Judge is even on the higher side and as the appellants were in custody for some time, so, confining the sentence to the extent of custodial period, they may be released.
8 Crl.A 587/06
On the other hand, learned High Court Government Pleader has supported the Judgment and Orders of the trial Court.
6. The incident took place at about 11.15 p.m. and the complaint-Ex.P1 was filed before the Police at 11.50 p.m. There is no delay in lodging the complaint.
7. P.W.1-Mohan and P.W.2-Syed are the injured and though C.Ws.2, 4 and 5 are also sustained injuries in the incident, the prosecution has left them unnecessary to prove its version. P.Ws.4 and 5 are the doctors, who examined the injured and issued the injury certificates-Exs.P4 to 8. As could be seen from the evidence of P.Ws.1 and 2, it is their consistent version that at about 11.15 p.m., when they were in front of the office of the Excise Contractor, the appellants came to the place armed with long, iron rod, club and knife, stating 9 Crl.A 587/06 that the injured persons are informing the Excise Authorities and getting them apprehended, appellant No.1, who held a long assaulted C.W.2- Srinivas on his head, abdomen, chest and face; appellant No.2 assaulted P.W.2-Syed with knife and appellant No.3 assaulted C.W.3-Venkatesh with club, whereas, appellant No.4 is said to have assaulted P.W.1-Mohan with iron rod. When C.W.3- Venkatesh escaped and the other injured fell down, the appellants entered the Office of the Excise Contractor-N.T. Prakash with whom the injured were employed for the purpose of raiding to prevent unlawful transportation of liquor, and damaged the table, chair kept in the office and caused loss to the extent of Rs.600-00. C.W.2-Srinivas was assaulted in the office. Though P.W.1-Mohan in the cross-examination states that he knew the names of the accused through others. So far as the identity of the accused is concerned, he states that he was able to identify them in the electric 10 Crl.A 587/06 light from the electric pole, which was near the place of the incident. P.W.2-Syed states in his evidence that he knew the appellants even prior to the incident and that he identified them at the time of the incident. It is the consistent version of these witnesses about the part played by each of the accused. There is no inconsistency or any such material contradiction in the evidence of the witnesses so far as the assault by each of the accused on the injured. Though it is contended that an identification parade was not held, it is required only in a case where the injured was not able to identify the assailant and particularly in a case where the injured knew the accused prior to the incident, I do not think there is any necessity for the investigating agency to hold an identification parade to fix the assailant.
8. The doctors i.e., P.Ws.4 and 5 who have examined the injured have issued injury 11 Crl.A 587/06 certificates-Exs.P4 to 8. Ex.P4 is the injury certificate of Srinivas, who is not examined and he has sustained incised wound of 2 cm. x 1 cm. on the left eye-brow and the injury suffered is simple. Venkatesh-C.W.3 was examined and his injury certificate is at Ex.P5, which reveals a simple injury i.e., bone in the right ankle joint. Raghavendra was examined and his injury certificate is at Ex.P6, which reveals he has suffered multiple abrasion of 2 cms. each on the left shoulder and lower lip swollen, whereas Ex.P8 is the injury certificate of P.W.1-Mohan and he has suffered pain and tenderness in the right thigh and left shoulder. All these injuries sustained are simple injuries, whereas P.W.2-Syed was examined and the injury certificate Ex.P7 was issued. There was a contusion 3 x 2 cms. over the right eye-brow and abrasion of ½ cm. on the nose and fracture of nasal bone. The doctor has certified that injury No.2 was grievous. From 12 Crl.A 587/06 this medical evidence placed on record, certainly it could be said that P.Ws.1 and 2 are injured witnesses.
9. The evidence of an injured stands at a higher pedestal. An injured generally does not implicate an innocent and do not leave a person who has really caused harm. The evidence of such witness needs no corroboration. The medical evidence led by the prosecution supports the version of the injured. There is no delay in lodging the first information. If the version of the prosecution is looked into, there appears to be no reasons to reject the evidence of the injured. The contention that the independent corroboration is necessary cannot be accepted in the light of the principles laid-down so far as appreciation of the evidence.
10. The trial Court has convicted all the appellants for the charge under Section 326 r/w. 13 Crl.A 587/06 34 IPC. Though Section 34 IPC is invoked, there should be a common intention to cause assault and it cannot be said that all the appellants had an intention to cause grievous injuries. It is the nature of the blow that is inflicted makes difference between simple injuries and grievous injuries and though appellant No.2 has caused grievous injuries to P.W.2-Syed, his intention to cause grievous injuries cannot be attributed to appellant Nos.1, 3 and 4. Therefore, the conviction of the appellants other than appellant No.2 [accused No.2] for the offence punishable under Section 326 r/w. 34 IPC is improper. So far as the rest of the offences are concerned, as the appellants have used deadly weapons in causing the assault and as the injured suffered simple injury, their conviction for the offence punishable under Sections 324 r/w. 34 IPC cannot be interfered. Even for the offence punishable under Sections 427, 448 r/w. 34 IPC there is ample material on 14 Crl.A 587/06 record to prove that the appellants committed an act of trespass by entering into the office of the Excise Contractor and damaged the table and chair in the office and caused loss to the extent of Rs.600-00. Therefore, their conviction for the offence punishable under section 427, 448 r/w. 34 IPC cannot be interfered with. So far as the quantum of sentence is concerned, it is relevant to note that the trial Court has awarded the minimum sentence and taking into consideration that in the night hours, the appellants armed with deadly weapons went to the office of the Excise Contractor and assaulted the injured does not persuade this Court to reduce the sentence ordered.
In the result, the appeal is allowed in part, the conviction of appellant Nos.1, 3 and 4 [accused Nos.1, 3 and 4] for the offence punishable under Section 326 r/w. 34 IPC is set aside. They are acquitted of the said charge. 15 Crl.A 587/06 Fine if any deposited by them shall be refunded. The conviction and sentence of appellant No.2 [accused No.2] for the offence punishable under Section 326 IPC is affirmed and further the conviction and sentence of the appellants for the charge under Sections 324, 427, 448 r/w. 34 IPC are affirmed. The sentence shall run concurrently.
The appellants are entitled to the set off under Section 428 Cr.P.C. The trial Court is directed to secure the presence of the appellants to undergo the remaining sentence.
Sd/-
JUDGE.
Ksm*