Karnataka High Court
Kumar vs State Of Karnataka on 24 April, 2014
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF APRIL 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL REVISION PETITION NO.533 OF 2009
Between:
1. Kumar
S/o Nanjunda Naika
Aged about 29 years
2. Krishna
S/o Nanjunda Naika
Aged about 24 years
Both are R/at Kupparahalli
Nanjangud Taluk
Mysore District ... Petitioners
(By Sri.M.Sharass Chandra, Advocate - Absent)
And:
State of Karnataka by
Badanavalu P.S.
(Represented by SPP) ... Respondent
(By Sri.Nasrulla Khan, HCGP)
*****
This Criminal Revision Petition is filed under
Section 397 read with Section 401 Cr.P.C praying to set
aside the judgment and order dated 28.4.2009 in
Criminal Appeal No.85/2007 passed by the Hon'ble
Principal District Sessions Judge at Mysore, which is
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partly allowed and the order dated 21.2.2007 in
C.C.No.1013/2004 passed by the Civil Judge (Jr.Dn.)
JMFC at Nanjangud and consequently acquit the
petitioner.
This Petition coming on for Hearing this day, the
Court made the following:-
ORDER
The petitioners (accused 1 and 2) were tried and convicted for offences punishable under Sections 323, 324, 341 read with Section 34 IPC by the learned Trial Judge. Therefore, they were before the First Appellate Court. The learned Judge of the First Appellate Court on reappreciation of evidence, acquitted accused 1 and 2 of offence punishable under Section 323 IPC and confirmed the conviction for Sections 324 and 341 IPC.
2. The learned counsel for petitioners is absent. In a decision reported in 2013 (8) SCJ 797 (in the case of SURYA BAKSH SINGH vs. STATE OF UTTAR PRADESH), the Supreme Court has held:
"(a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter 3 without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the appeal after perusing the record and judgment of the trial court;
(e) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant - accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation."
3. I have heard learned Government Advocate for State.
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4. The prosecution has relied on evidence of PW1 to PW8. PW1-Chinnaswami Naika had not witnessed the incident of assault. He had learnt the incident of assault at 8.30 p.m. on 21.6.2004. He had lodged first information on the basis of information conveyed to him. PW2 -Papanaika stated to be the eye witness has not supported the case of prosecution. He was declared as hostile witness. PW3-Nagesh has attested the spot inspection mahazar. He has not given incriminating evidence against accused. PW4-Nagaraju has attested the mahazar under which weapons viz. chopper and club, were seized.
5. PW5-Dr.M.Mahadeva Murthy had examined the injured, namely, PW6-Somanna Naika at 10.35 p.m. on 21.6.2004 in Government Hospital at Nanjungud. On examination, PW5 had noticed following injuries:
(i) a contusion present over the left thigh, measuring 6cm. x 4cm., red and tender
(ii) an abrasion present over the left thigh, measuring 4cm. x 3cm., red and tender 5
(iii) a contusion present over the right thigh, measuring 5cm. x 4cm., red and tender
(iv) an abrasion present over the left ear (pinna) measuring 2cm. x 1cm., red and tender
(v) a contusion 3cm. x 3cm. over the right forearm, red and tender
(vi) a contusion 3cm. x 2cm. over the left lumbar area, red and tender
(vii) tenderness present over the right knee joint, movements painful
6. The evidence of PW7 and PW8 relates to investigation of case. In the circumstances, the entire case of prosecution rests upon the evidence of PW6 -
Somanan Naika who was the victim of assault.
7. PW6-Somanna Naika has deposed that on the date of incident at 8.00 p.m., he was proceeding towards bus stand of Kupparahalli village from his house. At that time, accused 1 and 2 came on a scooter from his behind and assaulted him. PW6 has deposed that accused No.2 assaulted him with a club and accused No.1 was holding PW6. PW6 has categorically deposed 6 that he was assaulted with a club and no other weapon was used to assault him. PW6 was declared as a hostile witness.
During cross-examination by the learned Public Prosecutor, PW6 has deposed that both the accused assaulted him and fisted him. PW6 has deposed that he did not see accused No.2 assaulting him with chopper from behind.
During cross-examination by learned counsel for accused, PW6 has admitted that distance between bus stand and his house is about one furlong. PW6 has not given evidence to a specific question of assault by accused 1 and 2. He has deposed that accused 1 and 2 fisted him. Accused No.2 assaulted him with a club.
8. The medical evidence reveals that PW6 had suffered contusions and abrasions. He had not suffered injuries which would be caused if a person is assaulted with a chopper. PW6 has not deposed that he was 7 wrongfully restrained by accused 1 and 2. The courts below have not noticed these material discrepancy in the evidence adduced by prosecution. The evidence of PW6 is hardly sufficient to hold accused guilty of offences punishable under Sections 324 and 341 IPC. The evidence of PW6 would reveal that he was confronted by accused 1 and 2 and they fisted him. PW6 has deposed that accused 1 and 2 were proceeding on a scooter. It looks improbable that they were carrying weapons like chopper and club. It looks probable that accused 1 and 2 had picked up quarrel with PW6 and fisted him. Therefore, accused 1 and 2 cannot be held guilty of offences punishable under Sections 341 and 324 IPC. The courts below without noticing the basic material discrepancies in evidence adduced by prosecution have held the accused guilty of the afore stated offences.
9. In a decision reported in AIR 2100 SC 1140 (in the case of SHEETALA PRASAD & ORS. V. SRI KANT AND ANR.), 8 the Supreme Court has held that this Court can exercise revisional jurisdiction when the findings are recorded by overlooking material evidence or by considering irrelevant evidence.
10. In the case on hand, apart from evidence of PW6, we do not have evidence of other eye witnesses as they have turned hostile. PW6 who is stated to be an injured witness has not given consistent evidence about assault by accused No.1 and 2 with a club and chopper. The medical evidence also does not support the case of prosecution that accused 1 and 2 assaulted PW6 with a club and chopper. Therefore, I hold accused 1 and 2 guilty of an offence punishable under Section 323 IPC.
11. In the result, I pass the following:
ORDER The petition is accepted. The impugned judgments are modified.
The conviction of accused 1 and 2 for offences punishable under Sections 324 and 341, is set aside.9
Accused 1 and 2 are convicted for an offence punishable under Section 323 and sentenced to pay a fine of Rs.10,000/- each, in default to undergo simple imprisonment for a period of one month.
Out of the fine amount, a sum of Rs.5,000/- shall be paid as compensation to PW6 as held by the trial court.
Sd/-
JUDGE AHB