Karnataka High Court
Sri Puttaswamy vs The State Of Karnataka on 7 June, 2019
Author: K.Natarajan
Bench: K. Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.916 OF 2010
BETWEEN:
SRI PUTTASWAMY
S/O. SRI CHIKKAGANDAIAH,
AGED ABOUT 33 YEARS,
RESIDENT OF MADARAHALLI,
NANJANGUDU TALUK,
MYSORE DISTRICT.
... PETITIONER
(BY SRI K. DHIRAJ KUMAR, ADVOCATE, FOR
SRI K. SREEDHAR)
AND:
THE STATE OF KARNATAKA
BADANAVALU POLICE STATION,
NANJANGUDU TALUK,
MYSORE DISTRICT.
... RESPONDENT
(BY SRI K.P. YOGANNA, H.C.G.P.)
***
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THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF THE
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
13-4-2010 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSORE, IN CRL.A. NO.205 OF 2008
AND ALSO THE SENTENCE DATED 19-8-2008 PASSED BY
THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND J.M.F.C.,
NANJANGUDU, IN C.C. NO.661 OF 2006.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 25-4-2019 AND
COMING ON FOR PRONOUNCEMENT, THIS DAY THE
COURT PRONOUNCED THE FOLLOWING:
ORDER
This revision petition is filed by accused No.3 being aggrieved by the judgment of conviction and order of sentence dated 19-8-2008 passed by the Civil Judge (Junior Division) and Judicial Magistrate First Class, Nanjangudu, in Criminal Case No.661 of 2006 and confirmed by the III Additional District Judge, Mysuru, in Criminal Appeal No.205 of 2008 dated 13-4-2010.
2. The petitioner was accused No.3 and the respondent was the complainant before the trial Court. The ranks of the parties before the trial Court are retained for the sake of convenience.
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3. Heard the learned counsel for the petitioner as well as the learned High Court Government Pleader for the respondent-State. Perused the records.
4. The factual matrix of the case of the prosecution before the trial Court is that the Badanavalu Police filed charge-sheet against the petitioner and other two accused persons for the offences punishable under Sections 324 and 326 read with Section 34 of the Indian Penal Code (for short, 'the I.P.C.') on the complaint of one Siddaraju-PW1. It was alleged that on 2-4-2006 at about 10.30 p.m., when the complainant was in the house, the accused persons with common intention picked up quarrel with his father-PW2. When PW1 questioned the same, accused No.1 assaulted PW1 with stone, accused No.2 assaulted PW1 on his backside of the head and accused No.3-the present petitioner assaulted PW1 with a wooden log/club on his left shoulder and caused fracture. The 4 injured was shifted to the hospital for treatment and a complaint came to be lodged by PW1 as per Ex.P1. The Police have arrested the accused. Later, they have been released on bail. After investigation, a charge-sheet came to be filed. The trial Court framed the charges against the accused under Sections 324 and 326 of the I.P.C. The accused pleaded not guilty and accordingly, the prosecution called upon to adduce evidence. The prosecution in all examined nine witnesses as PW1 to PW9 and got marked six documents as per Ex.P1 to Ex.P6 and also got marked three material objects as per MO.1 to MO.3. Accused were also examined under Section 313 of the Code of Criminal Procedure. The case of the accused was of total denial, but not entered into any defence. After hearing the arguments, the trial Judge acquitted accused No.2, but convicted accused No.1 for the offence punishable under Section 324 read with Section 34 of the I.P.C. and accused No.3-the present petitioner for the offence punishable under 5 Section 326 I.P.C. and sentenced to undergo rigorous imprisonment for a period of two years with fine of Rs.5000/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of four months vide judgment dated 19-8-2008. Being aggrieved by the judgment of conviction and order of sentence, accused Nos.1 and 3 preferred an appeal before the III Additional District Judge, Mysuru, in Criminal Appeal No.205 of 2008. The Appellate Court allowed the appeal filed by accused No.1 and acquitted him, but dismissed the appeal of the present petitioner and confirmed the judgment of conviction and order of sentence vide judgment dated 13-4-2010. Being aggrieved by the concurrent findings, this revision petition is filed by accused No.3.
5. Learned counsel for the petitioner has contended that there is contradictory in the evidence of PW1 and PW2, who are eyewitnesses and interested 6 witnesses. The other eyewitnesses have turned hostile. Even as per the evidence of the Doctor, there is no injury sustained by PW1 though both the witnesses have stated that accused Nos.1 and 3 have assaulted with wooden log/club and stone. Even otherwise, the entire evidence of the prosecution is acceptable as true; the Wound Certificate given by the Doctor that injuries of PW1 are grievous in nature cannot be acceptable, as there is no X-Ray film and report produced before the Court. Even otherwise, the wooden log/stick cannot be considered as a deadly weapon in order to convict the accused under Section 326 of the I.P.C. Therefore, the injuries sustained by PW1 were simple in nature and MO.2-wooden log/club is not a deadly weapon. Hence, he prayed for allowing the revision petition. In support of his arguments, he relied upon the judgment of this Court in the case of THE STATE OF KARNATAKA BY KAKATI POLICE STATION v. PARASHRAM KALLAPPA 7 GHEVADE AND OTHERS reported in ILR 2006 KAR 3514.
6. Per Contra, the learned High Court Government Pleader has contended that the trial Court, after appreciating the evidence, based upon the Wound Certificate has clearly held that accused is guilty. Injury on PW1 is of dislocation of common bone which is grievous in nature. The wooden log/club is deadly weapon which attracts Section 326 of the I.P.C. After re-appreciation, the Appellate Court has confirmed the judgment and also given the concurrent findings, which cannot be interfered with by this Court. Hence, he prayed for dismissal of the revision petition.
7. Upon hearing the arguments and on perusal of the judgments of the Courts below, there is concurrent finding of sentence as against accused No.3, who is the present petitioner herein. It is well settled by the Hon'ble Apex Court that the Court cannot interfere in 8 the concurrent finding of the Courts below, except in rare circumstances, wherein there is grave illegality or patently error committed by the Courts below. In this case, admittedly, charge-sheet came to be filed against three accused persons. The trial Court has acquitted accused No.2, who is said to have assaulted on the backside of the head of PW1 and the Appellate Court has acquitted accused No.1, as there is no injury sustained by PW1 and no Wound Certificate produced before the Court. Even though PW1 and PW2 gave evidence before the trial Court that accused persons assaulted them, however, Ex.P6-Wound Certificate of PW1, where it is stated that PW1 sustained two injuries and injury No.1 is grievous in nature as per X-Ray report. Based upon the evidence of PW8-Dr. Anand Ravi and Ex.P6, the trial Court as well the Appellate Court convicted the petitioner.
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8. Learned counsel for the petitioner has brought to the notice of this Court that as per the evidence of PW1-complainant, he says that on the date of incident, he saw the accused assaulting his father-PW2, when he questioned them, the accused assaulted him, but PW2 says, when he was returning home, he has found that accused were assaulting his son and later, they have assaulted PW2. Therefore, he has argued that their evidence shall not be acceptable as there is contradiction and they are also interested witnesses.
9. On perusal of the evidence of PW1 and PW2, no doubt PW1 in his complaint filed before the Police stated that the accused picked up quarrel with his father-PW2 and while questioning the same, the accused started assaulting them. Though PW2 has stated that on the previous day of the incident, the accused had assaulted his son-PW1 and on the date of incident, when the accused were quarrelling with him, his son came and 10 questioned, at that time, the accused assaulted his son. There is little discrepancy in respect of the starting of the quarrel, but for little discrepancy in the evidence of PW1 and PW2, the entire evidence cannot be discarded as untrustworthy. Apart from that, PW1 and PW2 have categorically stated that the accused picked up quarrel with PW2 and when PW1 questioned the same, the accused have assaulted PW1 with wooden log/club and stone. PW1 was the injured as well eyewitness. He cannot be treated as interested witness and there is no enmity between the accused and PW2 to falsely implicate them. Apart from that, accused No.1 is the brother of PW2. Both of them are relatives and immediately after the incident, the injured was shifted to the hospital. He was treated as in-patient. Complaint came to be filed by PW1 while he was taking treatment in the hospital and the same was recorded by the Police in the presence of the Doctor as per Ex.P1. Thereafter, case was registered and the Investigating 11 Officer visited the spot and recovered the material objects with the help of panchas. There is continuous sequence occurred. There is no chance of manipulation of the facts and there is no delay in lodging the complaint.
10. Learned counsel for the petitioner has also brought to the notice that there is contradiction in the evidence of PW1 and PW2 in respect of seizing the material objects. The panch witnesses have not supported the case. Hence, he prays for acquittal.
11. PW1 has stated that the Police came and seized MOs.1 to 3 from the spot and in cross- examination, he has stated that he does not know who gave the weapons to the Police. Further, PW2 has stated that he has not given MOs.1 to 3 to the Police. There is little discrepancy in respect of seizure of MOs.1 to 3 from the spot. Whether PW2 gave MOs.1 to 3 to the Police or the Investigating Officer seized the same on the 12 spot which was recovered in Ex.P2 is immaterial. On perusal of Ex.P2-spot panchanama goes to show that PW2 produced the weapon to the Investigating Officer, which was seized by him. However, the same was discussed by both the Courts below in detail and given findings that the Investigating Officer seized MOs.1 to 3 on the spot which was shown by PW2 or given by PW2. The material objects seized on the spot is relevant to decide the case, but it is not necessary to know that who has produced the same. As per Ex.P2, the Investigating Officer visited the spot and seized the material objects. Though the panch witnesses have not supported the case of the prosecution and turned hostile, but PW4 and PW5 have admitted their signature on Ex.P2-panchanama. The evidence of the Investigating Officer cannot be disbelieved, who has conducted the investigation and went to the spot and has seized MOs.1 to 3 under panchanama and he has clearly identified the same before the Court. Therefore, 13 merely the panch witnesses have not supported in respect of recovery, but the evidence of the Investigating Officer cannot be discarded in respect of recovery of MOs.1 to 3 under panchanama. Thereby, the prosecution has proved the seizure of the weapons from the spot.
12. Though there is no injury sustained by PW2 and there is no evidence before the Court to show that PW2 sustained injury or taken any treatment and no Wound Certificate is produced, therefore, both the Courts below have rightly acquitted accused Nos.1 and 2, but the evidence of PW8-Dr. Anand Ravi, who has stated that PW1 was brought to the hospital with two injuries. Out of 2 injuries, injury No.1 was grievous in nature and he has issued Ex.P6-Wound Certificate. The evidence of the PW8 also corroborates with the evidence of PW6 and PW7-Investigating Officers in respect of injury sustained by PW1. However, PW8-Dr. 14 Anand Ravi gave Wound Certificate as per Ex.P6 and opined that injury No.1 is grievous in nature (as per X- Ray report No.600 dated 3-4-2006) but while examining the said witness before the trial Court, the X-Ray film or X-Ray report is not produced by the prosecution to prove injury No.1 was grievous in nature. In this regard, the learned counsel for the petitioner has relied upon the judgment of this Court in the case of STATE v. SHEENAPPA GOWDA AND OTHERS reported in 2011 (4) KCCR 2759 (DB), wherein it has held as under:
"The accused cannot be convicted for
commission of offence punishable under
Section 326 read with Section 149 of the Code of 1908, in respect of injury sustained by PW4, because the prosecution has failed to prove the allegation of grievous injury sustained by PW4 in view of non-production of x-ray for confirmation of fracture opined by the doctor in clinical medical examination, thus the accused can be said to have 15 committed offence punishable under Section 326 read with Section 149 of the Code of 1860."
13. Based upon the above said judgment, the learned Single Judge of this Court has taken similar view in the case of CHANABASAPPA AND OTHERS v. THE STATE OF KARNATAKA in Criminal Appeal No.3721 of 2010 decided on 10-9-2015, which reads as follows:
"xxx xxx xxx
31. It is clear from the evidence of PW8- Dr.Yashwant Gowda that he has described the injury noticed by him as grievous injury. When the prosecution has alleged that the injured had sustained fracture of left elbow and the same is supported by x-ray report, non-production of x-ray report would not help the prosecution to contend that it was grievous in nature. The evidence of PW8 would only show that injured had suffered injuries as described in Ex.P3. Unless the x-16
ray report is produced for confirmation of the fracture opined by the doctor on clinical examination, it cannot be said that the accused had caused grievous injury, that is fracture."
14. Similarly, in view of the principles laid down by this Court that when X-Ray report is not produced before the Court, oral evidence of PW8-Dr. Anand Ravi that PW1 sustained grievous injury cannot be acceptable. Apart from that, the learned counsel also argued that weapon is only a wooden log/club which cannot said to be a deadly weapon under Section 326 of the I.P.C. Therefore, on this ground, the offence falls under Section 324 of the I.P.C. In support of his arguments, he relied upon the judgment in the case of THE STATE OF KARNATAKA BY KAKATI POLICE STATION v. PARASHRAM KALLAPPA GHEVADE AND OTHERS reported in ILR 2006 KAR 3514, wherein this Court has held as under:
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"INDIAN PENAL CODE 1860-SECTION 324 AND 326 I.P.C.-CONVICTION UNDER SECTION 324 I.P.C. INSTEAD OF SECTION 326 I.P.C. CHALLENGE TO-ON FACTS HELD- As per the medical evidence of Doctor, PW1 has suffered grievous injury and also mentions about the fracture of first rib of the chest of PW1-Both the accused has used the bamboo stick to assault PW1 and the bamboo stick cannot be categorized as a dangerous weapon in the absence of material evidence. Therefore, the conviction is altered to section 325 I.P.C. Finding of the Trial Court as to the offence being committed, punishable under section 324 of I.P.C. will have to be altered into Sections 325 I.P.C."
15. On perusal of the above judgment, this Court has held that the bamboo stick cannot be categorised as a dangerous weapon. In this case, MO.2 is not a bamboo stick, but it is a wooden log/club which is used by accused No.3 for assaulting on the shoulder of PW1, which is said to have caused fracture and if the same 18 object is used for assaulting on the head, there is every possibility of that injury leading to fatal. Therefore, the arguments of the learned counsel that the wooden log/club used by accused No.3 cannot be considered as a deadly weapon is not acceptable one. On the other hand, it can be brought under the category of deadly weapons, as it depends upon the degree of force which is used by the assailant at the time of committing offence. Therefore, I hold that the bamboo stick cannot be compared with a hard wooden log/club. Therefore, it is held that wooden log could be categorised under the deadly weapon or means. However, the injury cannot be considered as a grievous injury, but as a simple injury in the absence of X-Ray report as held by this Court in the case of Sheenappa Gowda stated supra. On the other hand, the offence committed by accused No.3 would fall under the category of Section 324 of the I.P.C. and not under Section 326 of the I.P.C. 19
16. For the reason stated above, the findings of the Courts below as against the petitioner in respect of assault and causing injury deserves to be upheld. However, the provisions of Section 326 of the I.P.C. require to be modified and the same falls under Section 324 of the I.P.C., as the injuries sustained by PW1 are considered as simple in nature. Accordingly, I pass the following:
ORDER i. The revision petition is allowed-in-part;
ii. The findings of conviction passed by the Courts below are hereby confirmed. However, the offence committed by the petitioner-accused No.3 falls under Section 324 of the I.P.C. and to that effect, the sentence deserves to be modified;20
iii. The petitioner is sentenced to pay fine of Rs.15,000/- (Rupees fifteen thousand only) and in default of payment of fine, he shall undergo simple imprisonment for a period of one year for the offence punishable under Section 324 of the I.P.C.;
iv. Out of the fine amount, a sum of Rs.10,000/-
(Rupees ten thousand only) shall be paid to PW2-Doddagandaiah as compensation; and v. Registry is directed to send the records to the Courts below along with a copy of this order for further course of action.
Sd/-
JUDGE kvk