Karnataka High Court
State Of Karnataka vs Maniraj S/O. Nagaraj Nayak on 1 February, 2024
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NC: 2024:KHC-D:2310
CRL.A No. 100207 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100207 OF 2016 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
SIRSI NEW MARKET POLICE STATION, SIRSI,
KARWAR DISTRICT
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...APPELLANT
(BY SRI. M.B. GUNDAWADE, ADDL SPP.)
AND:
1. MANIRAJ S/O. NAGARAJ NAYAK
AGE: 22 YEARS, OCC: BSNL
DRIVER TEST WORKER,
Digitally signed
by SHIVAKUMAR R/O: NAGARAJ SIRSI, SHIRALI, BHATKAL,
HIREMATH PRESENTLY KELAGINA PALYA,
Date: 2024.02.09
15:02:53 +0530 BEHIND TRISHOOL FRIENDS, HONNAVAR.
2. HARISH S/O SALOTAGI,
AGE: 22 YEARS, OCC: STUDENT,
R/O: NAVANAGAR, MARATHIKOPPA, SIRSI.
...RESPONDENTS
(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL
LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 14.03.2016 PASSED BY THE LEARNED
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NC: 2024:KHC-D:2310
CRL.A No. 100207 of 2016
PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL
MAGISTRATE FIRST CLASS, SIRSI IN CRIMINAL CASE NO. 31
OF 2016 AND SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 14.03.2016 PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL
MAGISTRATE FIRST CLASS, SIRSI IN CRIMINAL CASE NO. 31
OF 2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 325 AND 504 READ
WITH SECTION 34 OF IPC, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The State has preferred this appeal against the judgment of acquittal passed in C.C.No.31/2016 dated 14.03.2016 by the Principal Senior Civil Judge and Prl. JMFC Court, Sirsi, wherein, the learned Magistrate acquitted the accused/respondents for the offences punishable under Sections 325 and 504 read with Section 34 of IPC.
2. The factual matrix of the prosecution case in brief are that, On 02.02.2014 at about 5.45 p.m, near Bellakkikere, Vishalnagar, Sirsi (which comes within the limits of Sirsi -3- NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 New market Police Station), when the P.W.1-complainant along with his friends i.e., P.W.3 and P.W.4 had gone ground near Bellakikere Lake to play cricket, at that time, the accused Nos.1 and 2 in furtherance of a common intention to commit an offence, came there on a motorbike and when P.W.1 questioned the same, the accused persons abused him in filthy words and the respondent No.1/accused No.1 voluntarily assaulted the complainant and thereafter pushed him down and thereby he sustained grievous injuries to his left shoulder. Subsequently, P.W.1- injured was shifted to the Government Hospital at Sirsi and thereafter he was shifted to Marikamba Hospital, Sirsi, for higher treatment. When PW.1 was under treatment at Marikamba Hospital, Sirsi, based on the MLC, P.W.8 - Assistant Sub-Inspector of Sirsi Police Station, registered a case against the respondents in Crime No.10/2014 for the offences punishable under Sections 325 and 504 read with Section 34 of IPC, as per Ex.P.8. Subsequently, P.W.8 conducted investigation and has drawn the spot mahazar and also recorded the statement of the material witnesses -4- NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 and after obtaining the Wound Certificate from the Doctor who treated the injured, thereafter PSI, New market Police Station, Sirsi filed the chargesheet against the accused persons for the aforesaid offences.
After receipt of the charge-sheet, learned Magistrate took cognizance of the offence and framed charges against the accused for the aforementioned offences and read over the same to the accused. However, the accused denied the charges and claimed to be tried.
3. In order to prove the charges leveled against the accused before the Magistrate the prosecution examined 08 witnesses as P.W.1 to P.W.8, so also got marked 08 documents as Ex.P.1 to P.8.
4. After completion of the prosecution evidence, the learned Magistrate read over the incriminating evidence of the material witnesses to the accused as contemplated under Section 313 of Cr.P.C. Though, the accused denied the same, they did not choose to examine -5- NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 any witness on their behalf but has got marked four documents as per Ex.D1 to D4 in support of their defense.
5. After assessment of the oral and documentary evidence placed before the learned Magistrate, the learned Magistrate acquitted the accused for the charges leveled against them as stated supra. The said Judgment is challenged under this appeal by the State.
6. I have heard the learned Addl. SPP for the appellant/State, so also, learned counsel Sri.Shivakumar S. Badawadagi for respondent Nos.1 and 2.
7. Learned Addl. SPP would vehemently contend that, the Judgment under this appeal suffers from perversity and illegality, since the learned Magistrate failed to appreciate the evidence of material witnesses i.e. the injured P.W.1 so also P.W.3 to P.W.5 who have consistently deposed that on the date of the incident, the accused No.1 quarreled with the injured and thereafter he assaulted the injured and pushed him. As such, the injured fell down and sustained grievous injuries on his left -6- NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 shoulder. He would further contend that, there is no reason to disbelieve or discredit the consistent version of these witnesses. Nevertheless, the prosecution also examined the Doctor-P.W.6, who examined the injured and issued the Wound Certificate as per Ex.P.6, which depicts that, the injured sustained grievous injuries. As such, according to the learned Addl. SPP the Magistrate has totally erred in acquitting the accused for the charges leveled against them. Accordingly, the learned Addl. SPP prays to allow the appeal and to convict the accused for the charges leveled against them.
8. Per contra, learned counsel for the respondent/accused contends that, the learned Magistrate has rightly acquitted the accused after evaluating the evidence available on record. On such evaluation, learned Magistrate has disproved the version of the injured P.W.1 and the eyewitnesses P.W.3 to P.W.5 since there are material contradictions and omissions in their evidence. -7-
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9. He would further contend that, the prosecution also failed to examine the material witness who accompanied the plaintiff at the time of the incident. Moreover, on perusal of Ex.P.1, it depicts that P.W.1 went along with one Harish Pujari to the place of incident and thereafter the alleged incident has caused. On perusal of evidence of PW.6- Doctor, so also report issued by him under Ex.P.6, he has deposed that one Rajesh has accompanied PW.1 to the hospital before PW.6. In such circumstances, he would contend that the contents of Ex.P.1 is quite contrary to the Ex.P.6 i.e. Wound Certificate. Further he would also contend that, the Doctor P.W.6 issued report at Ex.P.6 based on the Orthopaedician report that the injured sustained grievous injuries. However, the prosecution has neither produced any report nor examined the said Orthopaedician. In such circumstances, the learned Magistrate has rightly acquitted the accused under a well reasoned Judgment which does not call for interference by this Court. -8-
NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 Accordingly, the learned counsel for the respondent/accused prays to dismiss the appeal.
10. Having heard the learned Addl. SPP, so also, the learned counsel for the respondent accused and having perused the records made available before me, the only point that would arise for my consideration is:
"Whether the Judgment under this appeal suffers from any perversity or illegality?"
10. On careful perusal and re-appreciation of the evidence placed by the prosecution before the trial Court, I find that;
P.W.1 is the injured complainant who lodged Ex.P.1. By reiterating the contents of Ex.P.1, he deposed that, on 02.02.2014 at about 5.30 p.m. he went to the ground near Bellakkikere lake to play cricket. At that time, the accused Nos.1 and 2 came there and he quarreled with the accused in connection with the parking of their two wheeler in between the pitch where PW.1 and his friends -9- NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 were playing cricket. And, accused No.1 all of a sudden quarreled with him and assaulted him and pushed him on the ground to the side farm Bund. Hence, he sustained grievous injuries on his left shoulder. Thereafter, he lodged the complaint.
PW.2-Prithvi, friend of PW1, eye-witness to the incident so also panch witness to the spot panchanama as per Ex.P.2. Who also identified the photographs taken as per Ex.P4 and 5. He deposed that, on the day of incident he was at the spot and witnessed the scuffle that underwent between the accused persons and PW.1.
PW.3-Suresh, eye-witness to the incident, deposed that he being the friend of PW.1 had been to play cricket along with PW.1, and when they were playing cricket the accused persons came to the spot in a two wheeler and parked the vehicle in midst of the playground where the PW.1 and his friends were playing and when PW.1 asked them to leave, enraged accused No.1 got off from the bike and abused PW.1 in filthy language so also assaulted and
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 pushed Pw.1 thereby causing injuries to PW.1 and he also further deposed that posteriorly, he along with his friends accompanied PW.1 to hospital for treatment.
PW.4- Kishan, PW-5-Raju, friends of PW.1, alleged eye-witnesses to the incident, reiterated the facts as narrated by PW.3 in his evidence and has contended that PW.1 sustained injuries and wounds to his left hand and swelling on his right cheek.
PW.6- Dr. Raghavendra, Medical Officer, issued report as per Ex.P6 and deposed that PW.1 had attended for medical examination along with one Sri. Rajesh and further he has opined that, on opinion obtained by Orthopaedician, he has given his final opinion that, PW.1 has sustained dislocated left shoulder and as such the injuries are grievous in nature.
PW.7-Ganesh, panch witness for the Spot Panchanama as per Ex.P2.
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 PW-8- Malini, the then ASI of Sirsi New Market Police Station, received the Complaint- Ex.P1 from PW.1 and registered the FIR as per Ex.P8 under the aforementioned provisions and carried the same to the jurisdictional Magistrate. She has also conducted the Spot Panchanama along with panchas as per Ex.P2, taken the photographs as per Ex.P4 and 5, so also drawn the spot sketch as per Ex.P3. Further, she has also recorded the statements of the material witnesses and after obtaining the Wound certificate-Ex.P6 from PW.6 has handed over the investigation to the then PSI one Sri. Salim who laid the chargesheet before the committal Court.
11. On perusal of the complaint at Ex.P.1, PW.1 has stated that, on the date of incident he went along with his friend one Harish Poojari and while they reached to the place of incident, i.e. ground near Bellakkikere lake, the accused No.1 quarreled with him and pushed him down. Thereafter, he admitted to the Hospital. Admittedly, the said Harish Poojari is neither cited as a charge-sheet
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 witness nor examined by the prosecution. During the course of cross-examination of P.W.1, deposed that, the incident was caused while they were playing cricket in the ground, the accused came there and parked their bike in the middle of the ground, as such, when P.W.1 questioned the accused, the accused No.1 assaulted and pushed him down. P.W.3 to P.W.5 also deposed similar to that of P.W.1 and stated that while they were playing cricket on 02.02.2014 at about 5.30 p.m., the accused came in a motorbike and parked the same in the middle of the pitch and the same was questioned by P.W.1. At that time, the accused No.1 assaulted and pushed him down. Though the learned counsel for the accused cross-examined these witnesses at length, except the actual place of incident on the ground, nothing worth while has been elicited from the mouth of these witnesses.
12. Though, the learned counsel for the respondent/accused vehemently contended that, there are much contradictions in the evidence of P.W.1 and the
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 eyewitnesses P.W.3 to P.W.5, on meticulous examination of evidence of these witnesses, I am of the considered view that, the prosecution has established the fact that, P.W.1 and the accused were present on the date of the incident i.e. on 02.02.2014 at about 5.30 p.m. in the Cricket ground situated near Bellakkikere lake and there had been a squabble between the accused No.1 and P.W.1. In the said squabble P.W.1 sustained injuries.
13. Learned counsel for the respondent/accused in furtherance contended that, Ex.P.1 does not disclose the presence of P.W.3 and P.W.5 in the scene of occurrence. However, on perusal of Ex.P.1 and the evidence of P.W.1, the same depicts that his friends have shifted him to the Hospital. In such circumstance, there is no reason to disbelieve the testimony of P.W.3 to P.W.5 about their presence on the scene of occurrence on the date of the incident.
14. The learned trial Judge has acquitted the accused mainly on the reason that, the prosecution has
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 failed to seize the two wheeler in which the accused came to the alleged spot of incident on the said date. However, the said reasoning of the learned magistrate cannot be accepted for the reason that, a faulty investigation conducted by the Investigating Officer itself does not take away the case of the prosecution as held in catena decisions by this Court so also the Hon'ble Apex Court. When there are ample evidence available on record by way of testimonies of the eyewitnesses and also injured witness P.W.1, the reasoning of the trial Judge for acquitting the accused cannot be accepted. However, on careful perusal of the evidence of the material witnesses including the injured, none of these witnesses have deposed in respect of the accused No.2/respondent No.2 is concerned. They all categorically deposed that, the accused No.1 quarreled with P.W.1 and assaulted him and suddenly pushed him down. There is absolutely no such physical overt act attributed against the accused No.2. Though it is the case of the prosecution that, the accused No.2 abused P.W.1, there is no such consistent evidence
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 available to prove the same. As such, in my considered view the learned Magistrate has rightly acquitted the accused No.2 from the charges leveled against him.
15. On careful perusal of the above evidence, it is admitted case of the prosecution, so also as depicted in the evidence of P.W.1 and the eyewitness that, the incident was caused in a spur of moment without any premeditation. Both, P.W.1 and the accused had gathered in the spot of incident to play cricket. In such circumstance, for some reason, the said incident has taken place in a sudden quarrel. There is no such intention or motive is forthcoming on the part of the accused to cause grievous hurt to P.W.1. Nevertheless, there are no cogent proof is forthcoming neither in the evidence lead nor in the documents marked by the prosecution as to the fact that, PW.1 has sustained grievous injuries in the said quarrel. Though prosecution has relied upon the evidence of doctor-PW.6 so also the Wound Certificate issued by him under Ex.P.6, said certificate and opinion of the doctor is
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 based on the report of Orthopaedician which is not marked by the prosecution in this case. The prosecution has also failed to examine the Orthopaedician who has given the said report. Hence, in such circumstance, I am constrained to opine that, there exists no cogent evidence to hold that, PW.1 has sustained grievous injuries. In order to further substantiate, this Court finds it relevant to refer to Section 325 of IPC which reads thus-
"Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
To further enunciate, I would also find it relevant to refer to the provision under Section 321 of IPC which is as under -
"Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
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16. To attract Sections 325 of IPC, while causing grievous hurt, the accused must have committed the act with an intention of causing such grievous hurt to any person or with the knowledge that his act is likely to cause grievous hurt to any person.
17. As discussed supra, there is no such intention or knowledge is forthcoming in the case on hand on the part of the accused No.1/respondent No.1 on the perusal of the evidence adduced by the prosecution in this case. However, as stated above, the incident has caused in a grave and sudden provocation without any intention or knowledge on the part of the accused. Hence, in my considered view this case squarely falls under Section 334 of IPC, which reads as under:
"334. Voluntarily causing hurt on provocation:
Whoever, voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extent to one month, or with fine which may extent to five hundred rupees or with both."
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18. Hence, in view of the above discussion, I am of the considered view that, the accused No.1/ the respondent No.1 is liable to be punished for the offences under Section 334 read with Section 504 of IPC instead of Section 325 read with Section 504 of IPC. Accordingly, I answer the above raised point in the affirmative, and proceed to pass the following:
ORDER i.The appeal filed by the State is allowed-in-part;
ii.The accused No.1/respondent No.1 is convicted for the offence punishable under Section 334 read with Section 504 of IPC instead of charged offence under section 325 read with Section 504 of IPC and he is sentenced to pay a fine of Rs.500/- and in default of payment of fine, he shall undergo imprisonment for a period of one week. However, the Judgment passed by the learned
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NC: 2024:KHC-D:2310 CRL.A No. 100207 of 2016 Magistrate in respect of accused No.2 is kept intact.
iii.The accused No.1/respondent No.1 is directed to pay the fine within a period of two weeks from the date of receipt of copy of this order before the learned Trial Court.
iv.If he fails to pay the fine amount, then the learned Trial Judge is directed to secure his presence and commit him to prison to undergo default sentence.
Registry is directed to send the copy of this Order to the concerned Magistrate along with Trial Court records forthwith.
Sd/-
JUDGE SVH LIST NO.: 1 SL NO.: 1