Karnataka High Court
Srikant Mallanagouda Hadimani vs Bahubali S/O Manikappa Dundannavar on 12 January, 2024
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CRL.RP No. 100064 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100064 OF 2017
BETWEEN:
SRIKANTH MALLANAGOUDA HADIMANI
AGE: 31 YEARS, OCC: AGRICULTURE/ADVOCATE,
R/O. HOTANAHALLI, TQ: HANGAL
DIST: HAVERI.
...PETITIONER
(BY SRI.A.M. GUNDWADE., ADVOCATE)
AND:
1. BAHUBALI S/O MANIKAPPA DUNDANNAVAR
AGE: 27 YEARS, OCC: STUDENT,
R/O. BALEMBEEDA, TQ: HANAGAL,
DIST: HAVERI.
Digitally signed
2. BHARATESH S/O. MANIKAPPA DUNDANNAVAR
by
SHIVAKUMAR AGE: 33 YEARS, OCC: AGRICULTURE,
HIREMATH
Date: 2024.01.22 R/O. BALEMBEEDA, TQ: HANAGAL,
12:35:22 +0530
DIST: HAVERI.
3. SHAMBU S/O NAGAPPA DUNDANNAVAR
AGE; 27 YEARS, OCC: AGRICULTURE,
R/O BALEMBEEDA, TQ: HANAGAL,
DIST:HAVERI.
4. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
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CRL.RP No. 100064 of 2017
DHARWAD BENCH, AT DHARWAD
THROUGH ADUR POLICE.
...RESPONDENTS
(BY SRI.HARSH WARDHAN M. PATIL, ADVOCATE FOR R1 AND
R3, SRI. ASHOK HATTIMANI, AGA FOR R4)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS
OF THE CASE BEARING CRL.A. NO. 30/2014, FROM THE FILE
OF HON'BLE I-ADDITIONAL DISTRICT AND SESSION JUDGE
HAVERI, AND ALSO CASE BEARING C.C.NO. 137/2010, ON
THE FILE OF CIVIL JUDGE AND JMFC COURT, HANAGAL.
THIS CRL.RP COMING ON FOR HEARING AFTER HAVING
HEARD THE MATTER, RESERVED FOR JUDGMENT, THIS DAY
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
Complainant-petitioner has filed this petition challenging the judgment passed in Crl.Appeal No.30/2014 dated 30.11.2016 by the I Addl.District and Sessions Judge, Haveri modifying the judgment of conviction and sentence passed by the Civil Judge and JMFC, Hangal in Crl. Case No.137/2010 dated 1.8.2013.
2. The records of this case do reveal that, accused nos.1 to 3 were charge sheeted by the PSI of Adur Police Station, Adur for the offences punishable -3- CRL.RP No. 100064 of 2017 under Sec.323, 324, 326,504 and 506 read with Sec.34 of IPC.
3. The learned trial Magistrate on recording the evidence and on assessment of the evidence, convicted the accused persons for the offences punishable under Sections 323, 324, 326, 504 and 506 of IPC r/w Sec.34 of IPC and sentenced all the accused persons as under:
"Accused No.1 to 3 are sentenced to undergo SI for one year and pay fine of Rs.1,000/- each for the offence punishable U/Sec.323 R/w Sec.34 IPC and in default to undergo SI for 15 days each.
Accused No.1 to 3 are sentenced to undergo SI for one year and pay fine of Rs.2,000/- each for the offence punishableU/Sec.324 R/w Sec. 34 IPC and in default to undergo SI for 15 days each.
Accused No.1 to 3 are sentenced to undergo RI for three years and pay fine of Rs.4,000/- each for the offence punishable U/Sec.326 R/w Sec.34 IPC and in default to undergo SI for three months each.
Accused No.1 to 3 are sentenced to undergo SI for six months and pay fine of Rs.1,000/- each for the offence punishable U/Sec.504 R/w Sec.34 IPC and in default to undergo SI for 15 days each.
Accused No.1 to 3 are sentenced to undergo SI for six months and pay fine of Rs.1,000/- each for the offence punishable U/Sec.506 R/w Sec. 34 IPC and in default to undergo SI for 15 days each.
The bail bonds and surety bonds of the accused persons stand cancelled.
The above substantive sentences shall run concurrently.
Out of the fine amount so recovered Rs.4,000/- each shall be paid to the injured Mallanagouda -4- CRL.RP No. 100064 of 2017 Sannakallanagouda Hadimani (PW.4) and Srikant Mallanagouda Hadimani (PW.1/Complainant) respectively.
Out of the fine amount Rs.15,000/- shall be paid to Sri. Mallanagouda Sannakallanagouda Hadimani (PW.4) on behalf of deceased injured Ajjanagouda Mallanagouda Hadimani (PW.2)."
4. This judgment of conviction and sentence passed by the trial Magistrate was challenged by accused Nos.1 to 3 by preferring an appeal in Crl.A.30/2014 on the file of I Addl. District and Sessions Judge, Haveri (1st Appellate Court). The learned first Appellate Court on hearing the arguments and on assessment of the evidence confirmed the judgment of conviction in respect of the offences punishable Sections.323, 324, 504 and 506 read with Section 34 of IPC. Conviction and sentence in repect of offence under Section 326 r/w Section 34 of IPC was modified and found accused nos. 1 to 3 guilty of the commission of offence under Section 34 of IPC.
5. Thus the learned first Appellate Court though confirmed the judgment of conviction but, modified the sentence imposed by the trial court as under: -5- CRL.RP No. 100064 of 2017
"Appellant no.1 to 3 are sentenced to pay a fine of Rs.1,000/- each for the offence punishable U/s 323 R/w 34 of IPC and in default of payment S.I. for 15 days each.
Appellant no.1 to 3 are sentenced to pay a fine of Rs.4,000/- each for the offence punishable U/s 324 R/w 34 of IPC and in default of payment S.I. for 6 months each.
Appellant no.1 to 3 are sentenced to pay a fine of Rs.1,000/- each for the offence punishable U/s 504 R/w 34 of IPC and in default of payment S.I. for 15 days each.
Appellant no.1 to 3 are sentenced to pay a fine of Rs.1,000/- each for the offence punishable U/s 506 R/w 34 of IPC and in default of payment S.I. for 15 days each.
The Bail bonds and surety bonds of the appellants stand cancelled.
Out of the fine amount deposited by the appellants before the trial court Rs.5,000/- each shall be paid to the injured Mallanagouda Sanna Kallanagouda Hadimani (PW-
4) and Srikant Madangouda Hadimani (PW-1/complainant) respectively.
Further an amount of Rs.10,000/- shall be paid to Sri.Mallanagouda Sannakallanagouda Hadimani (PW-4) on behalf of deceased injured Ajjanagouda Mallanagouda Hadimani (PW-2).
Out of the remaining amount of Rs.7,000/- as deposited by appellants an amount of Rs.2,000/- shall go the State Government andRs.5,000/- shall be returned to the appellants on their proper identification of their Advocate concerned"..
6. This is how now the petitioner being the complainant being dissatisfied with the modification of the sentence only imposing fine by way of sentence has challenged the said modification of sentence by preferring the revision petition.
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7. The brief and relevant facts as set out in the FIR leading up to the revision petition are as under:
That the petitioner-complainant by name Srikanth is resident of Hotanahalli village in Hangal taluk. His family is owning an agricultural land bearing Sy.No.178 measuring 9 acres 38 guntas within the limits Balambeed village. He has a father Mallanagouda, his brothers Ajjangouda, Shivanagouda. All these members of the family are personally cultivating the said landed property.
8. It is alleged that respondent Nos. 1 to 3 are the permanent residents of Balambeed village. Their agriculture land is situated abutting the landed of complaint. There exist mud bund in between the landed property of the complainant and accused nos. 1 to 3.
9. A specific allegation is made by the complainant that, on 10.7.2010, and himself, his father and two other brothers as usual went to their agricultural land for the purpose of ploughing the land. Respondent Nos.1 to 3 were doing the agriculture work in their landed -7- CRL.RP No. 100064 of 2017 property. It is alleged that, at 4.00 p.m. the accused nos. 1 to 3 started to remove the mud bund situated in between landed properties of the complainant. They caused damage to the same. At that time, by seeing the illegal act of the accused persons, father of the complainant questioned accused Nos. 1 to 3 that why they are doing the same. At that time, these accused nos. 1 to 3 started abusing his father in filthy language and assaulted him. When the complainant and his brothers went to rescue their father, accused nos. 1 to 3 assaulted them with weapons like whip, Stic, Kandli, etc... Because of this illegal act of accused nos. 1 to 3, the father of complainant Mallangouda, his brother Shivanagouda and complainant himself sustained simple injuries on their person. Accused no.3 Shambu assaulted Ajjanagouda with Kandli and caused him grevious injuries. It is alleged by the complainant that the injured were shifted to the hospital. Thereafter he lodged a complaint before the Aduru Police Station which was registered in Crime No.99/2010.
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10. The investigation officer during the course of investigation recorded the statement of the witnesses visited the scene of offence, conducted panchanama, recovered the alleged weapons used by the accused persons in assaulting the complainant, his father and brothers. After completing the investigation and after completion of the all formalities of investigation, filed the charge sheet against the accused persons for the offences punishable under Sections 323, 324, 326, 504 and 506 read with Section 34 of IPC.
11. Based upon the said charge sheet CC No.137/2010 came to be registered against the accused persons on the file of Civil Judge and JMFC Court, Hangal.
12. Before the learned trial Court, to prove the guilt of the accused, prosecution in all examined 11 witnesses from PWs. 1 to 11 and got marked documents Ex.P1 to P6 with respective signatures. -9- CRL.RP No. 100064 of 2017
13. On behalf of the prosecution, three material objects are marked as MO Nos. 1 to 3, closed prosecution evidence.
14. The learned trial Court after hearing arguments and after assessing the evidence found the accused nos. 1 to 3 guilty of committing the offences under Sections 323, 324, 326, 504 and 506 read with Section 34 of IPC convicted the accused nos. 1 to 3 as stated above.
15. This judgment of conviction and order of sentence passed by the trial Court was challenged by accused nos. 1 to 3 before the I Addl. District Judge and Sessions Judge, Haveri by filing Crl.Appeal No.30/2014. Vide Judgment dated 30.11.2016, the learned first appellate Court modified the sentence as stated supra. Being aggrieved by the said judgment of modification of sentence passed by the first appellate Court, now revision petitioner-complainant is before this Court challenging the said modification of sentence and acquitting the
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CRL.RP No. 100064 of 2017accused for the offences punishable under Section 326 read with Section 34 of IPC.
16. Learned counsel for the complainant-revision petitioner in addition to narrating the facts of the case in brief submits, that the impugned order of sentence passed by the lower appellate Court in Crl. Appeal No.30/2014 dated 30.11.2015 is required to be reconsidered on the facts, probabilities of the case and the evidence placed on record. The very conduct of accused nos. 1 to 3 in the commission of the heinous offences against the complainant, his father and brothers go to establish that they are involved in the commission of the crime. It is further submitted by him that the evidence placed on record clearly establish that accused nos. 1 to 3 with an intention to commit the said offences including grievous injuries have committed the aforesaid offences. There is sufficient evidence placed on record by the prosecution to prove that these accused nos. 1 to 3 have committed the serious offence of causing grievous
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CRL.RP No. 100064 of 2017hurt. The complainant and his brothers, father are the victims under the hands of accused persons. But, the lower appellate Court without considering the nature of the offences has modified the sentence so imposed by the trial Court. Just it has awarded the payment of the fine amount. According to the complainant this order of modification of the sentence passed by the appellate court is illegal and perverse. The entire evidence placed on record show that with a mala fide intention, these accused persons have committed the said offences. Without any fault on the part of the complainant and his family members, these accused persons have assaulted when the complainant's father went to ask the illegal acts of the accused of removing mud situated in between the landed property of the complainant and accused persons.
17. Learned counsel for the respondents nos.1 to 3 submits that the appellate Court is right in modifying the sentence. While modifying the sentence, the appellate court has exercised its discretion and has rightly imposed
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CRL.RP No. 100064 of 2017fine only. The said fine amount is deposited by the accused. He further submits that, even otherwise, because of material contradictions and discrepancies in the evidence of the witnesses, the accused are entitled for acquittal. He supported the reasons and findings thereon given by the first appellate Court, prays to dismiss the revision petition.
18. Learned AGA submits that though the Government has not challenged the modification of the sentence, but, this Court considering the gravity of the offences can very well interfere into such a modification of the sentence and sentence the accused persons in accordance with law.
19. It is a specific allegation of the prosecution, that on 10.7.2010, in between 3.30 p.m. and 4.00 p.m. accused nos. 1 to 3 in furtherance of their common intention at Sy.No.178 of Balambeed village within jurisdiction of Adur Police Station, assaulted the father of the complainant Mallanagouda by using their hands and
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CRL.RP No. 100064 of 2017accused no.2 assaulted the brother of the complainant Shivanagouda by hands, likewise, the accused persons also assaulted complainant and his brother Ajjanagouda and Shivanagouda. It is alleged that accused no.1 assaulted the complainant by using the stick, accused no.2 with whip (barkol) on the back of the complainant so also on his left neck. Accused no.3 assaulted the complainant's brother Ajjanagouda by using the back portion of kandli on his left forehead, left head and caused him grievous injuries so also abused the complainant and his father, brothers in filial language so also gave life threat to them.
20. To substantiate the allegations made in the complaint, prosecution examined PW.1 the complainant by name Shrikanth Mallanagouda Hadimani. He corroborates the contents of the complainant in his evidence on oath. It is his evidence that when complainant, his father and brothers were ploughing in their landed property, the accused were also working in
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CRL.RP No. 100064 of 2017their land situated abutting the land of the complainant's family. It was noticed by the father of the complainant that these accused persons illegally were found removing the mud from the bund and putting in the land or complainant's family. On seeing the same, father the complainant went there and requested them not to remove the mud. At that time, accused abused the father of the complainant. They committed trespass to the extent of 35 to 40 ft. in the landed property of complainant's family. His father was assaulted by making him to fall down. On seeing the same, complainant and his brothers rushed to the said place running to rescue their father. Accused assaulted the complainant and his brothers. They abused them in the filthy language. It is his specific evidence that, accused Bahubali by using stick assaulted him on his left hand and leg. Accused Bharathesh assaulted him by using the whip (barkolu) on his back. He also assaulted his brother Ajjanagouda on his left neck. It is his evidence that, accused no.3 Shambu assaulted Ajjanagouda by using the back of
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CRL.RP No. 100064 of 2017Kandli on his left head and forehead, so also to the ribs and caused him bleeding injuries. Accused also assaulted another brother of complaianant Shivanagouda by using hands. It is his further evidence that on seeing the said galata, the neighbouring land owners by name Nagappa Balagondar and Basavaraj Ujjannavar alias Balagondar came and rescued the complainant and others from the clutches of the accused. They advised the accused persons. At that time accused gave life threat to the complainant and father. It is specific case of the prosecution that the said incident has taken place in between 3.30p.m. to 4.00p.m. Injured were shifted to Hospital and thereafter complainant gave complainant as per Ex.P1. He is also specific that the police came to the scene of offence and in his presence scene of offence panchanama was conducted in the presence of panchas.
21. This PW.1 was directed with severe cross- examination by the defence. The trend of cross- examination shows that these accused persons admit the
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CRL.RP No. 100064 of 2017incident but, denies the injuries on the persons stated above. Throughout the cross-examination, PW.1 had maintained about the assault on himself, on his father brother Shivanagouda and they sustaining simple injuries. Because of assault by accused no.3. on the person of Ajjanagouda, i.e. brother of the complainant, he had sustained grievous injuries.
22. PW.2 is Ajjanagouda who had sustained grievous injuries because of assault on him by accused no.3 Shambu. He corroborates the evidence of PW.1 in material particulars with regard to the incident. He has stated that who assaulted whom. According to his evidence, accused Bahubali assaulted PW.1 shrikantha by using stick on his left hand and accused Bharathesh also assaulted on his back left shoulder neck by using whip(barkol) and accused Shambu assaulted him by kandali on his forehead, head and ribs. Because of this assault, he sustained fracture of his ribs so also bleeding injuries. Even he states that accused Bahubali bite his
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CRL.RP No. 100064 of 2017right hand. he too has been cross-examined at length by the defence.
23. PW.3 Shivanagouda is also another injured also corroborates the evidence of PW.1 and 2 in material particulars and assault on him by the accused persons and also abusing PW.1, 2 and his father and himself. He is specific that his brother Ajjanagouda sustained fracture of his ribs and bleeding injuries because of assault on him on his head as well as forehead. PW.4 Mallanagouda is the father of PWs. 1 to 3 also corroborates the evidence of PWs. 1 to 3 in material particulars.
24. These witnesses are the injured witnesses in the hands of all these accused persons. Throughout their evidence, they are specific about the assault on them by all these accused persons. Though, all these witnesses have been directed with intensive and searching cross- examination, but, throughout their cross evidence they have given the graphic account of the incident of assault on all these persons. To disbelieve the evidence of these
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CRL.RP No. 100064 of 2017witnesses, except the denial in the cross-examination, nothing worth is elicited. Evidently, the said incident has taken place on Saturday being the 2nd Saturday of a month. PW.1 is an Advocate. It is the defence of the accused that as Saturday is a working day, therefore, PW.1 being the Advocate could not have been present on that day. But, it has come in the evidence of PW.1 and other witnesses that, it was a 2nd Saturday and every 2nd Saturday, every Court in Karnataka State would not function. On that day, holiday is declared by the government of Karnataka to all the Government Departments. If that is so, false defence has been taken by the accused persons to save the skin as per the submission of the learned Addl. SPP.
25. PWs 1 to 4 being the injured witnesses have spoken about the incident as stated supra. The evidence of these injured witnesses is corroborated by evidence of PW.6 Nagappa Shivaputrappa Balagondar and PW.8 Basavaraj Jambanna Ujjannavar alias Balagondar. These
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CRL.RP No. 100064 of 2017two witnesses are the independent eye witnesses. According to their evidence, on seeing the galata, they rushed to the spot and noticed that accused persons assaulting PWs. 1 to 4. It is their evidence that accused assaulted father of the complainant so also by using Kandali accused Shambu assaulted Ajjanagouda and other two accused were holding stick and whip(barkol). They are consistent about their rushing to the spot and rescuing PWs.1 to 4 from the clutches of accused persons. Throughout their evidence, they have specifically stated about they witnessing the said incident and rescuing PWs. 1 to 4 and shifting of the injured to the Hospital.
26. These two eye witnesses have been directed with lengthy cross-examination. But, they have withstood the test of cross-examination. When there is a lengthy cross-examination, certain minor contradictions and omissions are bound to occur. They will not go to the root of the case. Therefore, such minor contradictions and
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CRL.RP No. 100064 of 2017omissions brought on record in the cross-examination of the prosecution witnesses would not come to the rescue of the accused persons to disbelieve the evidence of all these witnesses. Evidence of all these witnesses have been evaluated, assessed by the trial Court as well as by the first appellate Court. The findings thereon given by both the Courts are based upon the evidence brought on record. When there is a concurrent finding with regard to the involvement of the accused persons in the commission of the crime, unless the accused persons bring on record that their evidence cannot be accepted as a legal evidence, the evidence of these witnesses stated above has to be accepted.
27. PW.5 Mahesh Nimbanna Balagondar was arrayed as eye witness. So also, PW.7 Mallappa Ujjannavar scene of offence Pancha. Both these witnesses have been turned hostile. Therefore, their evidence would not help the case of the prosecution.
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CRL.RP No. 100064 of 2017
28. PW.9 Dr.Kavitha K., the Medical Officer who has medically examined Mallanagouda has noticed injuries on the person of Mallangouda as narrated in Ex.P3. The contents of Ex.P3 reads as under:
1. Contusion over left thigh 2x2cm
2. Swelling of left hand
3. pain over the chest was referred to District Hospital, Haveri.
29. She is specific that the injuries so sustained by Mallangouda are simple in nature and can be caused by assaulting with hands. She has been thoroughly cross- examined by the defence. But, nothing worth is elicited. For the first time, it is suggested in the cross-examination that if 3 to 4 persons travel in the bullock car and the said bullock cart turtles down, such injuries may be possible. But, suggestion is not directed either to Mallanagouda or to any other witnesses by the defence. When the suggestion is denied, it has no evidentiary value.
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CRL.RP No. 100064 of 2017
30. PW.11 Dr. Anil S., is the doctor who has examined Ajjanagouda on 10.7.2010 at 6.30 pm and noticed the following injuries on his person:
Injuries: - Fracture of 4th and 5th ribs on the left side bite mark over the right arm over the deltoid region.
Contusion 5cm in size over the 'L' arm in the deltoid region Opinion:- I am of the opinion that the above said injuries are grievous in nature.
31. As per the opinion of the doctor the injuries found in Ex.P5 the wound certificate are grievous in nature. He also has examined complainant Shrikanth and issued wound certificate as per Ex.P6. He noticed the following injuries on his persons.
Injuries: - Contusion over the 2 elbow 5cm x5cm Contusion over the 'L' fore arm middle 1/3rd 3cm x 4cm.
Linear abrasion over the 'L' gluteal region Opinion:- I am of the opinion that the above said injuries are simple in nature.
As per ex.p6 the injuries are simple in nature.
32. Though PW.9 and 11 are severally cross- examined, but, they withstood the test of cross-examined.
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CRL.RP No. 100064 of 2017Thus, Ajjanagouda sustained grievous injuires, Mallanagouda, Shivanagouda and complainant Shrikanth sustained simple injuries as noticed by the doctor.
33. PW.10 is the IO who has filed the charge sheet. His evidence is corroborative in nature with that of the evidence of witnesses so examined in the case.
34. Thus from the evidence of the witnesses stated supra, prosecution is able to prove the said incident and sustaining of injuries by the injured PWs. 1 to 4. So far the injuries sustained by PW.1 Shrikanth, his father and his brothers Mallanagouda and Shivanagouda. It is not in dispute that they have sustained simple injuries on their person as noticed in the wound certificate.
35. So far as injuries sustained by Ajjanagouda is concerned, it is the case of the prosecution that, he had sustained the grievous injuries i.e. his 4th and 5th Ribs were fractured because of assault by accused Shambu on his person.
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CRL.RP No. 100064 of 2017
36. It is argued by the learned counsel for the revision petitioner that the learned first appellate Court without considering the definition of `grievous hurt' defined under the provisions of Sec.320 of IPC, has converted the offences under Section 324 of IPC and ventured to impose fine only for other offences. It is his submission that mere imposing fine to the offences has caused injustice to the prosecution in general and victims PWs. 1 to 4 in particular.
37. Evidently, the State has not preferred any independent appeal challenging the judgment of first appellate Court. It is PW.2 who has challenged the order of modification of sentence by the first appellate Court.
38. As the injuries alleged to have been sustained by the Ajjanagouda are grievous injuries, it is just and proper to incorporate the definition of grievous hurt as defined under the provisions of Sec.320 of Indian Penal Code, 1860.
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CRL.RP No. 100064 of 2017
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye.
Thirdly.--Permanent privation of the hearing of either ear.
Fourthly.--Privation of any member or joint. Fifthly.--Destruction or permanent impairing of the powers of any member or joint. Sixthly.--Permanent disfiguration of the head or face.
Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
39. The bare reading of the above provisions indicates that grievous hurt is one which falls under the clauses to Section 320 of the Indian Penal Code, 1860 and a person who voluntarily causes grievous hurt with weapons as stated, shall be punished as prescribed, thus, knowledge that the person is causing or is likely to cause grievous hurt and the act being voluntary on the part of the assailant and injury caused falls in any of the clauses of Sec.320 of Penal code, 1860 would be satisfied.
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CRL.RP No. 100064 of 2017
40. When an injury inflicted would fall under one of the clauses of Sec.320 of IPC, 1860, it can be held that `it is not necessary that, a bone should be cut through and that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone.' If there is break by cutting or splintering of the bone or there is rupture or fissure in it, it would amount to a fracture within the meaning of clause 7 of Section 320 of IPC.
41. The Hon'ble Supreme Court in Nasib Singh vs. State of Punjab reported in AIR 1986 SC 2192 held as under:
" It is not correct to say that a partial cut of the skull vault is seldom so prominent except when excessive force is used in inflicting the injury. It appears from the evidence in the instant case that the victim was putting on a turban when assaulted with the gandasa. What saved him was the turban and it took away the force of the impact leaving a head injury. In the circumstances, there can be no doubt that there was a fracture within the meaning of clause seventhly of S. 320 (1978) 80 Pun. LR 326 affirmed and hence he could be convicted under S. 326 and not S. 324. AIR 1970 SC 1969, Foil."
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CRL.RP No. 100064 of 2017
42. The Hon'ble Supreme Court in a judgment in the case of Sattan Sahani v. State of Bihar & Ors., 2002 (4) RCR (Criminal) 611 (SC): J.T. 2002 (7) SC
512. while specifying that the requirement of section 320 of the Penal Code, 1860 ought to be satisfied proceeded to hold that a single blow from 'bhala' would be a grievous injury inflicted on the injured. The Court held as under:-
"4. For conviction under section 326 the requirements of section 320 IPC must be satisfied. Considering the fact that though only one blow was caused by the appellant, from the weapon used namely 'bhala', it must be inferred that it was likely to cause the death of the injured person and, therefore, the offence is made out under Section 326 IPC and he was rightly convicted under that provision."
43. By applying the ratio laid down in the aforesaid judgments of the Apex Court, in this case also, because of assault by accused Shambu, Ajjanagouda sustained grievous injuries on his person as because, he has sustained fracture of his ribs as noticed in the wound certificate. To that effect, the doctor has given evidence that he has examined Ajjangouda and noticed that he had sustained fracture of his ribs. he opined that the
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CRL.RP No. 100064 of 2017injuries were grievous in nature. No effective cross- examination is directed to PW.11 Dr. Anil to disbelieve his evidence. The said evidence need not be doubted unnecessarily, on the ground that x-ray is not produced. In a case of present nature, non-production of x-ray is not a factual lapse. The oral testimony of the doctor is sufficient, enough to be acceptable evidence with regard to grievous injuries. In view of evidence of PW.2 Ajjanagouda and evidence of doctor PW.10 the accused Shambu is guilty of causing grievous injuries to PW.2 Ajjanagouda. So far as simple injuries sustained by PWs. 1 , 3 and 4, PW.9 has spoken to that effect and issued the wound certificates to that effect.
44. The contents of the said wound certificates were not denied by the defence. The first appellate Court without appreciating the nature of the injuries sustained by Ajjanagouda and without applying its judicious mind, has wrongly come to the conclusion that Ajjanagouda sustained simple injuries but such a finding is incorrect.
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CRL.RP No. 100064 of 2017Such a finding of the first appellate Court requires interference by this Court as such a finding suffers from infirmities. Therefore, the prosecution in this case is able to establish that Ajjanagouda sustained grievous injuries as defined under Section 320 clause (vii) of Indian Penal Code, 1860.
45. The arguments of the accused cannot accepted. More so, ordinarily, it is settled that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. But, the use, which the defence can make of the medical evidence is to prove that the injuries could not be possibly have been caused in the manner alleged and thereby, discredit the eye witnesses. Unless, however, the medical evidence in its turn, goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of
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CRL.RP No. 100064 of 2017alleged inconsistency between it and the medical evidence. In this case, PWs.1 to 4 have spoken about the injuries sustained by them and their evidence is corroborated by medical evidence i.e. PWs.9 and 11 the Doctors, the value of the medical witness is corroborative in nature and it is a check on the testimony of the eye witnesses. Independent testimony of the doctors and eye witnesses which is corroborative in nature with that of the evidence of the injured prove that PWs. 1 to 4 have sustained injuries in the manner alleged by the prosecution. Therefore, the first appellate Court has committed illegality in not appreciating the evidence in a proper manner.
46. Now the question arises that what would be the quantum of sentence to be imposed for the offences attributed against the accused persons. It is argued by the counsel for the petitioner that by imposing a sentence of payment of fine and compensation the first appellate Court has committed illegality. Even the first appellate
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CRL.RP No. 100064 of 2017Court has gone to the extent setting aside the judgment of conviction and order of sentence for the offence under Section 326 read with Section 34 of IPC. It is his submission that whatever the sentence imposed by the trial Court is required to be restored.
47. As against this submission, the counsel for the accused submits, the first appellate Court has rightly set aside the order of conviction and sentence passed under Section 326 read with Sec.34 of IPC, imposed sentence of fine on the other offences.
48. So far as the sentencing policy is concerned, it is settled principle of law that if an offence is committed and proved in accordance with law, such offenders should not be scot-freed only by imposing fine. But, however, in this case, so far as offences under Sections 323, 324, 504, 506 read with Section 34 of IPC is concerned, the punishment prescribed is imprisonment or fine. The first appellate Court taking into consideration of the neighborhood of accused persons and the prosecution
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CRL.RP No. 100064 of 2017witnesses, and as they are the residents of same village by exercising discretion has imposed fine instead of imprisonment. The first appellate Court has also taken into consideration the age of the criminal case while modifying the sentence. As the first appellate Court has used its discretion in the light of the facts of the case, it is not necessary to interfere into such a discretion exercised by the first appellate Court. Therefore, the modification of the sentence ordered by the first appellate Court with regard to the offences stated above has to be remained undisturbed.
49. So far as offence under Section 326 read with Section 34 of IPC is concerned, as there is a direct evidence against accused no.3 Shambu in causing grievous hurt on the person of Ajjanagouda son of Mallanagouda by using kandali and there is no direct involvement of accused nos. 1 and 2 in the commission of the crime against Ajjanagouda of causing grievous hut, therefore, this accused no.3 Shambu is liable to
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CRL.RP No. 100064 of 2017conviction and sentence for causing the offence under Section 326 of IPC. The first appellate court, has acquitted accused no.3 for the said offence but, in view of the aforesaid discussion, the findings of the first appellate court with regard to setting aside of the judgment of conviction and sentence passed under Section 326 of IPC is to be interfered with by this Court. Therefore, the accused no.3 is found guilty of committing the offence of causing grievous hurt on the person of Ajjanagouda PW2. Therefore, he has to be sentenced in accordance with law.
50. The trial Court has imposed the sentence of three years rigorous imprisonment on accused nos. 1 to 3, for the offence under Section 326 read with Section 34 of IPC, the same has been set aside by the first appellate court. So far as setting aside of the said judgment of conviction and sentence passed against accused nos. 1 and 2 is concerned, it is to be maintained. As accused no.3 is the direct cause for causing hurt, the punishment
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CRL.RP No. 100064 of 2017prescribed for the said offence is punishment of imprisonment for life or with imprisonment of either description for a term which may extent to 10 years, and shall also be liable to fine. This incident of assault has taken place in the year 2010. For the last 13 years the criminal case is pending. Looking to the age of the case and also as PW. 2 Ajjanagouda is no more, but, the commission offence by accused no.3 is proved by the prosecution, therefore, if accused no.3. Shambu S/o.Nagappa Dundannavar is sentenced to undergo rigorous imprisonment for six years and fine of Rs.10,000/- to be paid to the family of Ajjanagouda as compensation, it would meet the ends of justice.
51. With this view, the aforesaid point for consideration is answered.
Resultantly, I pass the following:
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ORDER
i) Revision petition filed by petitioner is allowed in part.
ii) The modified sentence passed by the I Additional District and Sessions Judge, Haveri, in Crl.A.No.30/2014 for the offences under Sections 323, 324, 504, 506 read with Section 34 of IPC, shall remain undisturbed.
iii) The order of setting aside of conviction and sentence passed against accused no.3. by the 1st appellate court for the offence under Section 326 of IPC is set aside.
iv) Consequentially he is convicted
and sentenced to undergo rigorous
imprisonment for one year and also
sentenced to pay additional fine of
Rs.10,000/- to be paid to the family of PW.
2 Ajjanagouda as compensation as required under Section 357 of Cr.PC. In default of payment of fine, he shall further undergo SI for six months.
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CRL.RP No. 100064 of 2017
v) The trial Court is directed to secure the presence of accused no.3, forthwith and commit him to prison.
vi) Intimate the trial Court as well first appellate Court regarding the final order through mail forthwith.
vii) Send back the trial Court record as well as first appellate Court records forthwith along with the copy this order.
Sd/-
JUDGE Sk/-