Karnataka High Court
Mr Sathya Deva vs The State on 24 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1148/2012
C/W.
CRIMINAL REVISION PETITION NO.1185/2012
CRL.RP NO.1148/2012:
BETWEEN:
1. SRI H.K.ANANDA
AGED 57 YEARS
S/O LATE H. KRISHNAMURTHY
AGRICULTURIST
2. SRI GNANADATHA
AGED 59 YEARS
S/O LATE H. KRISHNAMURTHY
AGRICULTURIST
3. SRI DHARMAPALA H.K.
AGED 65 YEARS
S/O LATE H. KRISHNAMURTHY
AGRICULTURIST
ALL ARE RESIDENTS OF
SEEKE VILLAGE
KANABUR 577 112
N.R.PURA TALUK
CHIKMAGALUR DISTRICT. ... PETITIONERS
[BY SRI P.P.HEGDE, ADVOCATE A/W.
SRI JAGADISH BALIGA, ADVOCATE]
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AND:
THE STATE OF KARNATAKA
REPRESENTED BY BALEHONNUR POLICE
CHIKMAGALUR DISTRICT -577 112
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU- 560001 ... RESPONDENT
[BY SRI V.S.VINAYAKA, HCGP]
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 31.10.2012 PASSED BY THE
PRESIDING OFFICER, FAST TRACK COURT, CHIKMAGALUR IN
CRL.APPEAL NO.63/2010 AND THEREBY SET ASIDE THE
JUDGEMENT 10.12.2007 AND ORDER DATED 23.03.2010
PASSED BY THE CIVIL JUDGE AND JMFC, N.R.PURA IN
C.C.NO.119/2007.
CRL.RP NO.1185/2012:
BETWEEN:
1. MR. SATHYA DEVA
S/O H.K. KRISHNA MURTHY
AGED ABOUT 64 YEARS
2. KESHAVA @ KESHAVA MURTHY
S/O SHESHAGIRI PRABHU
AGED ABOUT 37 YEARS
3. ASHWATHA NARAYANA
S/O SHASHAGIRI PRABHU
AGED ABOUT 41 YEARS
4. GANAPATHI
S/O SHASHAGIRI PRABHU
AGED ABOUT 32 YEARS
PETITIONERS 1 TO 4 ARE
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THE R/O SEEKEY VILLAGE
KANABUR, N.R.PURA TQ.
CHIKMAGALORE-577134. ... PETITIONERS
[BY SRI P.P.HEGDE, ADVOCATE A/W.
SRI JAGADISH BALIGA, ADVOCATE]
AND:
THE STATE
THROUGH THE SUB-INSPECTOR OF POLICE
BALEHONNUR POLICE STATION
CHIKMAGALORE DISTRICT
REPRESENTED BY STATE PUBLCI PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU- 560001 ... RESPONDENT
[BY SRI V.S.VINAYAKA, HCGP]
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET-ASIDE THE
JUDGMENT OF CONVICTION DATED 10.12.2007 AND THE
ORDER OF SENTENCE DATED 23.03.2010 PASSED BY THE CIVIL
JUDGE AND JMFC, N.R.PURA IN C.C.NO.120/2007 AND ALSO
JUDGMENT DATED31.10.2012 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT, CHIKMAGALUR IN CRL.APPEAL
NO.73/2010 DISMISSING THE APPEAL OF THE PETITIONER
HEREIN.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Jagadish Baliga and Sri P.P.Hegde and the learned High Court Government Pleader (HCGP) and perused the records.
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2. These two Revision Petitions are filed against the conviction order passed in C.C.No.119/2007 and C.C.No.120/2007 whereby the accused persons in the said cases were convicted for the offences punishable under Sections 326, 324, 504 and 506 read with Section 34 of IPC and ordered to undergo sentence of imprisonment for the offence punishable under Section 326 of IPC for a period of one year with fine of Rs.3,000/- which was confirmed in Crl.A.Nos. 63/2010 and 73/2010 dated 31.10.2012.
3. The brief facts of the case are as follows;
That on 05.02.2007 at about 11.30 a.m., in the agricultural land bearing Sy.Nos.205, 206, 207 of Seeke village, there was a scuffle between the revision petitioners in both the cases. There was an assault made by both the groups and both the groups approached the police and filed necessary complaint before the jurisdictional police that is Balehonnuru Police Station and registered the cases against the revision petitioners herein. Thereafter, the cases were investigated and charge sheets came to be filed before the jurisdictional Magistrate. The presence of the accused persons was secured before the learned Trial 5 Magistrate, by taking cognizance of the aforesaid offences. Charge was framed against the accused persons. The accused persons pleaded not guilty and therefore, trial was held. The Trial Magistrate recorded the evidence of the revision petitioners and their followers in both the cases and convicted the petitioners for the offence punishable under Section 326 of IPC as a major offence with allied offences and granted the probation. The State challenged the order passed by the Trial Magistrate granting probation as after convicting the accused persons for the offence punishable under Section 326 of IPC, the Trial Magistrate had no power to grant probation. The said contention of the State was appreciated by the learned Judge of the First Appellate Court and set aside the order sentencing the accused persons granting probation and remitted the matter to the Trial Magistrate. Thereafter, the Trial Magistrate in both the cases passed the order of conviction and sentence of one year of simple imprisonment against the accused persons in both the cases and also ordered fine of Rs.3,000/-. Being aggrieved by the same, the revision petitioners in both the cases have filed the appeals before the First Appellate Court. The First Appellate Court after re-appreciating the entire materials available on 6 record dismissed both the appeals and confirmed the order of conviction and sentence passed by the Trial Magistrate. Being aggrieved by the same, the revision petitioners are before this Court.
4. The learned counsel Sri Jagadish Baliga and Sri P.P.Hegde have vehemently contended that when a case and counter case is there, the question of who is the aggressive party and their intentions and other related matters looses its significance and it would be considered as a free fight. Admittedly, the injuries found on the body of the accused persons with regard to the alleged incident has not been explained by the prosecution and therefore, there is a suppression of material fact on record by the prosecution which has not been properly appreciated by both the Courts and therefore, the revision petitioners are per se entitled for an order of acquittal and sought for allowing the revision petitions.
5. They further contended that the material evidence on record clearly indicate that the injuries sustained by the revision petitioners in both the cases and their followers in the very same incident and therefore, the Trial Magistrate ought to 7 have asked the prosecution to explain as to how the injuries found on the revision petitioners and their followers in each of the cases, when they examined before the Court and their wound certificates are to be made available before the Trial Magistrate. They further submit that in the event of this Court maintaining the order of conviction, the materials on record do not attract the offence punishable under Section 326 of IPC inasmuch as the prosecution has not produced the X-ray films or radiological certificate and therefore, the Trial Magistrate ought not to have convicted the accused for the offence punishable under Section 326 of IPC and based on the materials on record, the accused should be convicted only for the offence punishable under Section 324 of IPC and sought for allowing the revision petitions granting probation to the revision petitioners admittedly, they are the first time offender.
6. Per contra, the learned HCGP supported the impugned judgments contending that the materials available on record clearly indicate that the injuries are found not only on the revision petitioners in both the cases but their followers as well. The fact of the case and the counter case has been filed which 8 requires the presence of all the revision petitioners at the place of incident and therefore, they were also required to explain before the Court as to the genesis of the crime and having failed to explain the same either by examining themselves as defence witnesses or any other witnesses or at least bringing out the material evidence on record placed in a case and counter case in accordance with law following the dictum of the Full Bench judgment of this Court in the case of STATE OF KARNATAKA, BY CIRCLE INSPECTOR OF POLICE vs HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509. The Trial Magistrate was perfectly justified in passing the order of conviction which was rightly appreciated by the First Appellate Court and sought for justice in both the petitions.
7. Insofar as the alternate submission is concerned, the learned HCGP maintained the reasoning accorded by the Trial Magistrate and learned Judge in the First Appellate Court contending that there is a conviction order for the offence punishable under Section 326 of IPC. There is no scope for granting probation and sought for dismissal of the petitions in toto.
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8. In view of the rival contentions and having regard to the scope of the revisional jurisdiction, the following points would arise for consideration:
1. Whether the finding recorded by the trial Magistrate that accused persons-revision petitioners are guilty of the offences punishable under Sections 324, 326, 504 and 506 of IPC which was confirmed by the First Appellate Court is suffering from legal infirmity or perversity or error of jurisdiction and thus calls for interference?
2. Whether the sentence is excessive?
9. Point No.1: For the sake of convenience, both the points are taken up together for consideration in both the cases.
10. In the case on hand, the injuries sustained by the revision petitioners and their followers and the incident that occurred on 05.02.2007 at about 11.30 a.m. in the agricultural land bearing Sy.Nos.205, 206, 207 of Seeke village with regard to the cutting of Areca nut crop grown in the land stands established by placing necessary oral and documentary evidence on record. Admittedly, there are injuries sustained by both the 10 groups. The material evidence on record clearly indicates the presence and participation of the petitioners in the incident. Admittedly, the wound certificate marked in both the cases shows that the injuries have been sustained by the petitioners and their followers. The material evidence on record clearly depicts that there was a group clash. Admittedly, the case and counter case was registered and investigated and charge sheet came to be filed and the same also stood proved before the Trial Magistrate by placing necessary oral and documentary evidence on record.
11. In a matter of this nature, when there is a group clash, the genesis of the crime, intention of the parties, aggressive nature of the parties would all lose its significance and the entire incident can be termed as free fight.
12. When such being the situation, the investigation agency was required to carry out the investigation with utmost caution and care.
13. In the case on hand, the Trial Magistrate and the First Appellate Court have erred in law in not properly conducting the trial. Be that as it may, the trial has been conducted and 11 judgment passed by both the Courts without any resistance on the part of the accused as well. Therefore, the irregularity, if any, that has crept in the trial could not vitiate the trial as contemplated under Section 460 of Cr.P.C. No case is made out by the petitioners either to hold that the trial stood vitiated as contemplated under Section 461 of Cr.P.C. Therefore, the material on record thus indicate that there was a clash and injuries were sustained by the petitioners and their followers which is justified by the wound certificate.
14. However, if the injuries are to be considered as grievous injuries, one should always refer to the definition of the grievous injuries as is contemplated under Section 320 of IPC. For the sake of convenience, Section 320 of IPC is extracted hereunder:
"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First -- Emasculation.
Secondly --Permanent privation of the sight of either eye.
Thirdly -- Permanent privation of the hearing of either ear, Fourthly --Privation of any member or joint.
Fifthly -- Destruction or permanent impairing of the powers of any member or joint.12
Sixthly -- Permanent disfiguration of the head or face.
Seventhly --Fracture or dislocation of a bone or tooth.
Eighthly --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
15. The doctor who has examined the injured persons was duty bound to classify the injuries as grievous injuries or not keeping in mind the definition of the grievous injury as contemplated under Section 320 of IPC. In order to substantiate the opinion of the doctor to classify the injury as a grievous injury, it is necessary that X-ray certificate and radiological certificate must be placed by the prosecution to term it as the said injuries are grievous injuries, especially when there is a fracture.
16. In this regard, this Court gainfully places reliance on the Judgment of the Division Bench of this Court in the case of State v. Sheenappa Gowda reported in 2011(4) KCCR 2759, the relevant paragraph is culled out hereunder:
"11. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It 13 is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond resonable doubt. The evidence of PW.1. would only show that there was injury as described in the wound certificate - Ex.P2. When PW. 1 suspected such fracture, he ought to have referred the injured - PW. 4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW. 1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, he same would not dispense with the production the X-ray by the 14 prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW. 1 Doctor only on clinical examination of PW. 4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos. 1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified".
17. Applying the legal principles enunciated in the aforesaid case to the case to the case on hand and in the absence of prosecution failing to place X-ray certificate and radiological certificate, injuries mentioned in the wound certificate cannot be termed as grievous injuries. Further, as rightly submitted by the learned counsel for the petitioners no explanation is forthcoming by the prosecution as to the injury sustained by the petitioners in each of the cases. Under such circumstances, finding recorded by the Trial Magistrate that the petitioners-accused are guilty of the offence punishable under Section 326 of IPC cannot be sustained in the eye of law and therefore, the same needs to be scaled down to 324 of IPC. Unfortunately, the learned Judge in the First Appellate Court 15 need not bestowed its attention to the said aspect of the matter while confirming the order passed by the Trial Magistrate.
18. This Court though in the revisional jurisdiction, is having limited scope to interfere with the concurrent findings recorded by both the Courts, since there is a bar of jurisdiction in classifying the injury as a grievous injury which has far reaching consequences, this Court is of the considered opinion that exercising the power vested with this Court, needs to interfere with the finding recorded by the Trial Magistrate and confirmed by the First Appellate Court in both the cases as one that would fall under the provisions of Section 324 of IPC and not under Section 326 of IPC. Therefore, to that extent, Point No.1 needs to be answered in favour of the revision petitioners. Accordingly, for the foregoing discussion, Point No.1 is answered partly in the affirmative.
19. Point No.2: In view of the discussions referred to supra, for scaling down the offence alleged against the petitioners from 326 to 324 of IPC, there is no bar for this Court to consider the grant of probation to the petitioners. Admittedly they are the first time offenders. It is a case and counter case 16 and there is no complaint against the petitioners about their illegal activities and incident having occurred in the year 2007. Fourteen years have been lapsed from the date of the incident. This Court is of the considered opinion that ends of justice would be met if the accused persons are directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Magistrate for their good behaviour for a period of two years and ordered to pay fine of Rs.5,000/- each for the offences punishable under Sections 326, 324, 504, 506 of IPC and in default, sentence of simple imprisonment for a period of six months would meet the ends of justice. Since in both the cases there was assault made by each other and petitioners on either side have sustained injuries, the order passed by the Trial Magistrate with regard to the compensation also needs to be set aside. Accordingly, this point is answered.
20. In view of the foregoing discussions, this Court pass the following:
ORDER
(i) Both the petitions are allowed in part.17
(ii) While maintaining the conviction of the accused persons for the offences punishable under Sections 326, 324, 504, 506 of IPC, the offence alleged against the petitioners for the offence under Section 326 is scaled down to Section 324 of IPC.
(iii) The petitioners in both the cases are ordered to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Magistrate for good behaviour which shall be in force for a period of two years and ordered to pay fine of Rs.5,000/- in all, for the aforesaid offences inclusive of the fine already imposed by the Trial Magistrate on or before 31.12.2021.
(iv) If there is any breach of the bond conditions, the petitioners in both the cases shall undergo simple imprisonment for a period of one year.
(v) Copy of this order along with Trial Court Record is ordered to be returned to the Trial Court forthwith.
(vi) Ordered accordingly.
Sd/-
JUDGE SN