Karnataka High Court
Basavaraj vs The State Of Karnataka on 16 March, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MARCH, 2020
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL REVISION PETITION NO.559 OF 2011
BETWEEN:
BASAVARAJU,
S/O. DODDABALAIAH,
AGED ABOUT 38 YEARS,
OCC:AGRICULTURIST,
R/AT GOLLARAHATTI,
HANDANAKERE HOBLI,
CHIKKANAYAKANAHALLI TALUK,
TUMKUR DIST. ... PETITIONER
[BY SRI. K.A.CHANDRASHEKARA, ADVOCATE]
AND:
THE STATE OF KARNATAKA,
BY THE POLICE OF
HANDANAKERE POLICE STATION,
TUMKUR DIST. ... RESPONDENT
[BY SRI. K.NAGESHWARAPPA, HCGP]
***
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 R/W. 401 OF CR.P.C. PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED 20.04.2010 AND
21.04.2010 PASSED BY THE ADDL. CIVIL JUDGE [JR.DN.] & JMFC.,
CHICKNAYAKANAHALLI IN C.C. NO.133/2003 AND CONFIRMED BY
THE ORDER DATED 30.03.2011 PASSED BY THE P.O., FAST TRACK
COURT, TIPTUR, IN CRL.A. NO.44/2010 AND ACQUIT THE
PETITIONER FOR THE OFFENCE P/U/S 326 OF IPC.
2
THIS CRIMINAL REVISION PETITION COMING ON FOR
FURTHER HEARING THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused No.1 against his conviction and sentence passed by the trial Court for the offence punishable under Section 326 of IPC., which was confirmed by the Sessions court.
2. I have heard the learned counsel appearing for the petitioner and the learned HCGP for the respondent/State.
3. Brief facts of the case are that;
On 27.12.2002, at about 7.00 p.m., in front of the house of P.W.1-Ningappa, situated at Doddahullenahalli, Chikkanayakanahalli Hobli, all the accused having formed an unlawful assembly with a common object, came and abused P.Ws.1 to 3 [C.Ws. 1, 2 and 4] in filthy language and accused No.1 voluntarily caused grievous hurt to P.W.2 on his right eye by means of club and the remaining accused caught hold of P.W.2, pulled and kicked him and caused bodily pain and thereby they committed offences punishable under Sections 323, 324, 326, 504, 143 r/w. 149 of IPC.
3
Before the trial Court, prosecution got examined P.Ws.1 to 9 and got marked Exs.P1 to 4 and M.O.1. The defence got marked Exs.D1 to 7.
The learned Magistrate after considering the oral and documentary evidence on record acquitted accused Nos.2 to 6 of the charged offences and acquitted accused No.1 of the offences punishable under Sections 323, 324, 504, 143 r/w. 149 of IPC. Accused No.1 was however held guilty of offence punishable under Section 326 of IPC and he was sentenced to undergo rigorous imprisonment for 2 years 6 months and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo simple imprisonment for 4 months.
Accused No.1 was directed to pay compensation of Rs.5,000/- out of Rs.10,000/- fine to P.W.2-Anandappa for the loss of his right eye.
Aggrieved by the Judgment and Order of conviction and sentence passed by the trial Court, accused No.1 preferred Crl.A. No.44/2010. The learned Sessions Judge by Judgment and Order dated 30.04.2011 dismissed the said appeal thereby, confirmed the Judgment and Order of conviction 4 and sentence passed by the trial Court. Hence, this revision petition.
4. Learned counsel appearing for the petitioner submits that the entire allegation made against the accused are false. The trial Court has come to the conclusion that there is no evidence as against other accused persons. However, the trial Court has erroneously convicted accused No.1 for the offence punishable under Section 326 of IPC. He contends that the witnesses are highly interested and their evidence cannot be believed. He contends that there was a case and counter case and the present petitioner, who is arrayed as accused No.1 has also lodged a complaint which was registered in Crime No.93/2002. The said complaint is prior to the complaint lodged in this case. He submits that the trial Court without appreciating the said aspect has erroneously convicted the present accused resulting in miscarriage of justice. He submits that the defence has got marked relevant documents, which are not properly considered by the trial Court and even the Sessions Court has ignored those relevant material. Therefore, the impugned Judgment and Order passed by the Courts below are liable to 5 be interfered with. He further submits that if the documents adduced by the defence is taken into consideration, then it can be seen that the incident was on account of a sudden quarrel and due to provocation and there was no intention or premeditation on the part of petitioner to cause any such injury to P.W.2.
Learned counsel for the petitioner further submits that the petitioner herein and P.W.2, the injured in this case are neighbours and they are now residing happily and cordially. They have settled their dispute amicably and the petitioner is ready to pay compensation to the injured-P.W.2 towards his medical expenditure and other expenditure. Accordingly, seeks to allow the revision petition.
Learned HCGP on the other hand contends that both the Courts have concurrently held that the accused/petitioner is guilty of an offence punishable under Section 326 of IPC. He submits that the evidence of P.Ws.1 to 4 clearly discloses that the present petitioner assaulted and caused injury to the right eye of P.W.2 with a club. Said injury according to the doctor is grievous in nature. He submits that P.W.2 has lost his right 6 eye vision and therefore, both the Courts have rightly convicted the accused for the offence punishable under Section 326 of IPC. Accordingly, he seeks to dismiss the revision petition.
5. Charges were framed against accused Nos.1 to 6 for the offences punishable under Sections 143, 504, 326, 323, 324 r/w. 149 of IPC. The allegations are that there was some amount due by the accused to P.W.1. In this connection, there was some dispute between the accused persons and the complainant. On 27.12.2002 at about 7.00 p.m., in front of the house of Ningappa i.e., P.W.1, when his children were present, accused Nos.1 to 6 having formed an unlawful assembly came there and abused them in filthy language and accused No.1 with a club assaulted near the right eye of P.W.2. On account of which he sustained grievous injury.
6. As noted supra, the trial Court has acquitted accused Nos. 2 to 6 of the charged offences. The petitioner/accused No.1 alone was convicted for the offence punishable under Section 326 of IPC. Both the Courts have 7 considered the evidence of P.W.2 i.e., the injured as well as the evidence of P.Ws.1, 3 and 4, eyewitnesses to the incident. They have supported the prosecution case. P.Ws.7 and 9 are the Medical Officers.
7. P.Ws.7 has stated that on examination of P.W.2- the injured, he noticed that he had sustained injury on his right eye and there was injury to the eye ball and Iris. Surgery was conducted and sutures were put. He has stated that P.W.7 has lost vision of his right eye.
8. P.W.9 has also deposed about the injury sustained by P.W.2 on his right eye. He has issued Ex.P4- wound certificate, wherein he has mentioned that injury No.1 is simple and injury No.2 is grievous in nature. Both P.Ws.7 and 9 have stated that the said injuries could be caused if a person is assaulted by a club.
9. It is vehemently contended by the learned counsel for the petitioner that there was a case and counter case and on the basis of the complaint lodged by the petitioner/accused No.1, a case was registered in Crime No.93/2002 of Handanakere Police Station against 4 accused 8 including P.W.2 herein, arrayed as accused No.2 in the said case. I have perused the defence evidence including Ex.D7 i.e., a copy of the FIR lodged by the petitioner herein against P.W.2 and others. Accused Nos.1 to 3 in the said case are none other than P.Ws.1, 2 and 4 respectively in the present case. It is seen that on the basis of the said FIR., charge- sheet was filed. After investigation, case was tried in C.C. No.57/2003 however, the said case ended in an acquittal. The trial Court has come to the conclusion that the said case was disposed of and the accused persons in the said case were acquitted of the offences punishable under Sections 323, 324, 504, 506 r/w. 34 of IPC and therefore, the registration of C.C. No.57/2003 is not a ground to disbelieve the medical evidence and injuries to P.W.2. It is further observed that the accused persons have not proved that they have acted in a private defence.
10. Perusal of Exs.D6 and 7 go to show that there was a case registered on the complaint lodged by the petitioner herein. Said incident has occurred on the very date and time on which incident in the present case has occurred. That clearly goes to show that it was a case and counter case. 9 Merely because the said case has been ended in acquittal, it cannot be said that no incident took place as stated by the petitioner. Perusal of Ex.D7 goes to show that on 27.12.2002 at about 7.00 p.m., when the petitioner herein was present in front of a temple in his village, P.Ws.1 and others in connection with some previous dispute, held him and assaulted. It is stated that Anandappa, the injured in this case assaulted him on his back and also torn his shirt etc. Ex.D7 was confronted to the Investigating Officer/P.W.7 and he has admitted the registration of a case against P.W.2 and others.
11. In the present case, the allegations against accused No.1/petitioner is that he assaulted on the right eye of P.W.2 with a club and on account of which P.W.2 sustained grievous injury and lost vision of his right eye. If Ex.D7 is taken into consideration, then it can be seen that there was a quarrel among both the parties and in the said quarrel, incident has taken place. Perusal of the evidence of P.Ws.1 to 4 does not give an indication that there was any premeditation or intention on the part of accused No.1 to cause injury to the eye of P.W.2. Probably in a sudden 10 quarrel, when accused No.1 used the club, P.W.2 might have received the said injury on his right eye. In Ex.D7, accused No.1 has stated that there was a quarrel and P.W.2 has also assaulted him on his back etc. Considering the overall facts and circumstances of the case, I am of the considered view that in a quarrel which ensured between the parties, the petitioner assaulted P.W.2 with a club due to provocation and without any intention to cause injury to his eye. The offence committed by accused No.1 therefore false under Section 335 of IPC.
12. Learned counsel for accused No.1/petitioner has filed an application under Section 320(6) and (8) of Cr.P.C. for compounding the offence. The said application is signed by the petitioner as well as injured P.W.2. Learned counsel has also filed affidavits of the respective parties.
13. Both the petitioner i.e., accused No.1 as well as P.W.2-Anandappa, injured are present before the Court. It is stated in the affidavits filed by them that they are residing happily and cordially. It is also stated that the petitioner has agreed to pay a sum of Rs.1,10,000/- in favour of P.W.2 11 towards his medical expenditure and miscellaneous expenditure etc. in respect of injuries sustained by him. P.W.2 has acknowledged the receipt of the said amount. P.W.2, who is present before the Court has no objection to compound the offence. He being the victim is competent to compound the offence.
14. The application filed under Section 320(6) and (8) of Cr.P.C. as well as the affidavits filed by both the parties are taken on record. This Court has come to the conclusion that accused No.1/petitioner has committed an offence under Section 335 of IPC. The said offence is punishable with imprisonment which may extend to four years, or with fine which may extend to two thousand rupees, or with both. The said offence under Section 335 of IPC is compoundable in nature under Section 320(1) of Cr.P.C. P.W.2 is the victim. In the facts and circumstances of the case and in the light of the discussion made above and in view of the settlement arrived between the parties, I deem it appropriate to permit P.W.2 to compound the offence. Under Section 320(8) of Cr.P.C., composition of an offence shall have the effect of an 12 acquittal of the accused with whom the offence has been compounded. Hence, the following:
ORDER The revision petition is allowed. The Judgment and Order dated 20.04.2010 and 21.04.2010 passed by the Additional Civil Judge [Jr. Dn.] and JMFC., Chikknayakanahalli, in C.C. No.133/2003 and the Judgment and Order dated 30.03.2011 passed by the Presiding Officer, Fast Track Court, Tiptur, in Crl.A. No.44/2010 are hereby set aside.
Accused No.1/petitioner is acquitted. The bail bond executed by the Accused No.1/petitioner stands discharged. Fine amount if any deposited by accused No.1/petitioner before the trial Court shall be refunded to him.
Sd/-
JUDGE Ksm*