Karnataka High Court
Jatti S/O Ishwar Gouda, vs The State Of Karnataka on 29 November, 2016
Bench: Ravi Malimath, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 29TH DAY OF NOVEMBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE. SOMASHEKAR
CRIMINAL APPEAL No.2796 OF 2011
C/w.
CRIMINAL APPEAL No.2632 OF 2012
IN CRL.A.NO.2796 OF 2011
BETWEEN:
JATTI, S/O. ISHWAR GOUDA,
AGE: 54 YEARS, R/O. NEELAKOD,
HONNAVAR, DIST. UTTAR KANNADA
... APPELLANT
(BY SRI. SURESH S BHAT & G M BHAT, ADVOCATES)
AND:
THE STATE OF KARNATAKA
BY ITS HONAVAR P.S. REP. BY SPP,
HIGH COURT CIRCUIT BENCH BUILDING,
DHARWAD 580 011.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CODE OF CRIMINAL PROCEDURE SEEKING TO SET ASIDE
CONVICTION AND SENTENCE DATED 26.08.2011 PASSED BY
THE DISTRICT & SESSIONS JUDGE, UTTARA KANNADA,
KARWAR, IN S.C.NO.54 OF 2005 FOR AN OFFENCES PUNISHABLE
UNDER SECTION 326 OF INDIAN PENAL CODE AND ACQUIT
THE APPELLANT.
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IN CRL.A.NO.2632 OF 2012
BETWEEN:
THE STATE OF KARNATAKA
THROUGH HONNAVAR POLICE STATION,
KARWAR, REP. BY ADDITIONAL STATE PUBLIC
PROSECUTOR, HIGH COURT CIRCUIT
BENCH, DHARWAD.
... APPELLANT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
AND:
JATTI ESHWARA GOWDA
AGE: 46 YEARS,
R/O. NEELAKODA, HONNAVAR.
... RESPONDENT
(BY SRI.SURESH S BHAT, ADVOCATE)
---
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377(1)
OF CODE OF CRIMINAL PROCEDURE SEEKING TO ALLOW THIS
CRIMINAL APPEAL AND MODIFY THE SENTENCE IMPOSED BY
THE DISTRICT AND SESSIONS JUDGE, U.K.KARWAR IN S.C.NO.54
OF 2005 DATED 26.08.2011 AND IMPOSE SENTENCE PRESCRIBED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH J. DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The case of the prosecution is that on 31.05.2004 at about 4.00 pm, when the complainant was returning with her son and son-in-law from the house of her sister, they saw the appellant constructing a gate (danape) and they asked him not to disturb :3: their way by constructing the gate. The appellant got angry and suddenly took a sickle from his waist and inflicted an injury on the head of the complainant's son. When her son-in-law intervened to rescue him, the appellant inflicted injury on his left hand. Based on these facts, a case was registered in Crime No.128 of 2004 for the offences punishable under Sections 307 of the Indian Penal Code ('IPC', for short).
2. Investigation was taken up. The matter was committed to the Sessions Court, which was numbered as S.C.No.54 of 2005. The accused pleaded not guilty. In order to prove its case, the prosecution examined 11 witnesses and marked 8 documents along with 5 material objects. The accused was convicted for the offence punishable under Section 326 of the IPC and sentenced to undergo three years Simple Imprisonment and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for six months. Aggrieved by the same, the accused has filed Crl.A.No.2796 of 2011.
3. The prosecution - State of Karnataka represented by Addl. State Public Prosecutor has filed Crl.A.No.2632 of 2012 :4: seeking to set aside the order of acquittal under Section 307 of the IPC and consequently seeking conviction of the accused under Section 307 of the IPC.
4. Sri. Suresh S. Bhat, learned counsel for the accused contends that the judgment of the trial Court is erroneous. That the trial Court misread the evidence and material on record. That none of the injuries sustained by PW4 and PW6 can be said to be grievous or with an intention to cause hurt by any dangerous weapons or means and that the assault was only on the hands etc. Therefore, the conviction of the appellant under Section 326 of the IPC is erroneous. It is further pleaded that there is a counter case filed by the appellant/accused herein against the complainant herein and others. There too, the accused therein have been convicted for the very same offence. Therefore, it clearly shows that the case of incident relied upon by the prosecution is one of case and counter case. That both the accused did not have any intention to cause injury by any dangerous weapons or means. Hence he sought for acquittal of the accused.
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5. On the other hand, learned Additional State Public Prosecutor disputes the same. He contends that the Sessions Court has rightly convicted the accused for the offence under Section 326 of the IPC. That there is no error committed by the Sessions court that calls for any interference. He further contends that the Sessions Court was very lenient in acquitting the accused for the offence punishable under Section 307 of the IPC. Hence he pleads that the accused has to be convicted for the offence under Section 307 of the IPC by setting aside the impugned judgment.
6. Heard learned counsels and examined the records.
7. Injuries have been caused on PW4 and PW6, who are the son and son-in-law of the complainant. Exhibit P7 is the wound certificate with reference to PW4 and Exhibit P8 is the wound certificate with reference to PW6. Exhibit P7 would indicate that there are incised wound on the frontoparietal region and the fracture of frontoparietal. Exhibit P8 would indicate that there are lacerated wounds on the left wrist, there was tear of tendons of left thumb. In Exhibit P7, the doctor has opined that :6: the nature of injuries are grievous and in Exhibit P8, doctor has opined that the nature of injuries are simple.
8. However, the undisputed facts are that there was an altercation between the accused and the complainant's family. The accused herein was assaulted by the accused in the counter case. It is not the case of the prosecution that such an altercation did not take place. Section 334 of the IPC is voluntarily causing hurt on provocation. That whoever voluntarily causes hurt under grave and sudden provocation without any intention that is likely to cause hurt to the other person, other than the one who gave the provocation, would be an exception to Section 324 of IPC. Therefore notwithstanding the grievous injuries that have been caused on the PW4 and PW6 i.e., son and son-in-law of the complainant herein, the exception as carved out is with reference to grave and sudden provocation which is the prosecution case itself. It is not that they plead that it is the sole incident. In fact the case of the prosecution is one of case of a counter case.
9. However, the incident having occurred and PW4 and PW6 having sustained injuries, it cannot be said that the :7: prosecution has no case against the accused. Based on the evidence and material on record, we have no hesitation to hold that the prosecution has clearly established their case against the accused insofar as the offence under Section 324 of the IPC is concerned and not under Section 326 of the IPC.
10. Insofar as offence under Section 307 of the IPC is concerned, the contention of the learned Addl. State Public Prosecutor is not supported by any material evidence on record. Exhibit P7 would indicate that the nature of injuries are grievous and Exhibit P8 would indicate that the nature of injuries are simple. Section 307 of the IPC is relatable to attempt to murder. As held hereinabove, admittedly there were certain bickering between the complainant and the accused. The same cannot be read as an attempt to commit murder. The assault is not only on PW4 and PW6 i.e., the son and son-in-law of the complainant, the accused herein was also assaulted by the complainant and others in the counter case. Therefore, it is a case of case and counter case. Even otherwise, none of the ingredients in terms of Section 307 of the IPC exists in order to seek the conviction under :8: Section 307 of the IPC. Therefore, we have no hesitation to hold that the prosecution has failed to prove its case in order to seek conviction under Section 307 of the IPC.
11. However, insofar as sentenced is concerned, having held that the offence alleged against the accused would not come under the provisions of Section 326 of the IPC, but under Section 324 of the IPC, we are of the considered view that it would be inappropriate to impose a sentence of imprisonment. The material on record does not invite a sentence of imprisonment. The sentence of imprisonment imposed by the Sessions Court requires to be modified for the reasons assigned hereinabove.
Consequently, Crl.A.No.2796 of 2011 is allowed in part. The order of conviction and sentence passed on 26.08.2011 by the District and Sessions Judge, Karwar in Sessions Case No.54 of 2005 is modified. While confirming the conviction of the accused for the offence under Section 324 of the IPC, it would be just and appropriate to sentence him to pay a fine of Rs.10,000/-, including Rs.5,000/- said to have been deposited before the trial Court.
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The learned counsel for the accused submits that the said payment will be deposited before the trial Court within a period of one week from today. His submission is noted. On the said deposit being made, Rs.10,000/- is to be apportioned as follows:
PW4 and PW6, who are injured shall be paid Rs.2,500/-
each. Rs.5,000/- shall be paid to the State in order to defray the cost of investigation.
Crl.A.No.2632 of 2012 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE gab