Karnataka High Court
Smt. Hamsaveni vs State By Anekal Police on 25 January, 2023
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CRL.RP No. 849 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 849 OF 2013
BETWEEN:
1. SMT. HAMSAVENI
W/O SHEKAR,
AGED ABOUT 40 YEARS
2. SMT. RADHAMMA
W/O VENKATESH MODALIAR,
AGED ABOUT 70 YEARS,
3. SRI. GOVINDAPPA
S/O LATE ANNAIAPPA,
AGED ABOUT 75 YEARS,
4. SRI. VENKATESH MODALIAR
S/O ANNAIAPPA,
AGED ABOUT 80 YEARS,
ALL THE PETITIONERS ARE
R/AT MARASUR MADIWALA,
KASABA HOBLI, ANEKAL TALUK,
BANGALORE DISTRICT-562106.
...PETITIONERS
Digitally
signed by
SUMA (BY SRI. UMESH B.N., ADVOCATE FOR PETITIONER NOS.1 AND 2;
Location: PETITIONER NOS.3 AND 4 ARE ABATED)
HIGH COURT AND:
OF
KARNATAKA
STATE BY ANEKAL POLICE
ANEKAL TALUK,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BANGALORE-01.
...RESPONDENT
(BY SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
PLEADER)
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CRL.RP No. 849 of 2013
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION DATED
15.04.2010 PASSED BY THE PRL. CIVIL JUDGE (JR. DN.) AND
J.M.F.C., ANEKAL IN C.C.NO.176/2008 AND CONSEQUENTLY THE
JUDGMENT DATED 15.10.2013 PASSED BY THE III ADDL. DISTRICT
AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT SIT AT
ANEKAL IN CRL.A.NO.5/2010 AND THEREBY BE PLEASED TO ACQUIT
THE ACCUSED/PETITIONERS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the judgment of conviction dated 15.04.2010 passed by the Principal Civil Judge (Jr. Dvn.) and J.M.F.C., Anekal (henceforth referred to as 'Trial Court' for short) in C.C.No.176/2008, convicting accused No.1 for the offences punishable under Sections 324 and 326 of IPC, accused No.2 for the offence punishable under Section 323 of IPC and accused Nos.3 and 4 for the offence punishable under Section 506 of IPC and the consequent order of sentence dated 17.04.2010 sentencing the accused No.1 to undergo simple imprisonment for a period of three years along with fine of Rs.5,000/- for the offence punishable under Section 326 of IPC -3- CRL.RP No. 849 of 2013 and to pay fine of Rs.2,000/- for the offence punishable under Section 324 of IPC, accused No.2 to pay fine of Rs.1,000/- for the offence punishable under Section 323 of IPC and accused Nos.3 and 4 to pay fine of Rs.2,000/- each, for the offence punishable under Section 506 of IPC. The petitioners have also challenged the judgment dated 15.10.2013 passed by the III Addl. District and Sessions Judge, Bengaluru Rural District sit at Anekal (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.5/2010.
2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioners herein were the accused.
3. The case of the prosecution is that on 28.11.2007, at about 11.00 a.m., the accused quarreled with CW.1 over chopping the branches of Eucalyptus tree by CW.4. The accused No.2 trampled on the chest of CW.2, while accused No.1 assaulted CW.3 with a club on her right hand, while accused Nos.3 and 4 threatened CW.1 and CW.2 of their life. CW.1 lodged a complaint with the jurisdictional police, who -4- CRL.RP No. 849 of 2013 registered Crime No.173/2007 for the offences punishable under Sections 323, 324, 326, 506 read with Section 34 of IPC. The investigating officer recorded the statement of two eye- witnesses (CW.4 and CW.5) and after completion of investigation, filed a charge-sheet alleging the commission of offences punishable under Sections 323, 324, 326, 506 read with Section 34 of IPC.
4. The Trial Court took cognizance and secured the accused, who were released on bail. The accused pleaded not guilty to the charge under Sections 323, 324, 326, 506 read with Section 34 of IPC and claimed to be tried.
5. The prosecution examined the complainant (CW.1) as PW.1, who deposed that CW.2 was his mother, while CW.3 was his wife. He deposed that the accused quarreled with him over chopping the branches of Eucalyptus tree next to his house. He deposed that CW.2 was trampled on her chest and other parts of the body by accused No.2. He deposed that the accused No.1 assaulted CW.3 with a wooden stick resulting in a fracture of a finger, while the other accused exhorted accused -5- CRL.RP No. 849 of 2013 Nos.1 and 2 to kill them. He identified the wooden stick used by the accused for committing the offence, which was marked as MO.1. He also identified the mahazar under which MO.1 was seized. In his cross-examination, he deposed that a suit filed by the accused in O.S.No.87/1996 concerning land in Sy.No.420/16 was decreed in their favour. He admitted that a suit in O.S.No.1279/2007 was filed by Ramesh and Venkatesh Modaliar (accused No.4) to remove the unauthorized construction put up by PW.1 and his family. He also admitted that there were frequent skirmishes between him and the accused over the property. He admitted that he lodged a complaint belatedly after two days. He also admitted that a proceeding in C.C.No.245/2008 was registered against him and his family members. CW.3 was examined as PW.2, who narrated the incident and alleged that the accused No.1 assaulted CW.3 (PW.3) with a stick causing a fracture of a finger. She alleged that the other accused threatened to kill them. She identified MO.1 and that she and CW.3 were treated at Government Hospital, Anekal. In her cross-examination, she admitted that the accused were related to her and that there -6- CRL.RP No. 849 of 2013 were cases between the accused and them. She claimed that ten people had gathered but could not recollect the names of any of them.
6. CW.3 was examined as PW.3, who deposed that at about 11.00 a.m., on 28.11.2007, the accused No.2 held the hair of CW.2 (PW.2) and trampled on her chest, while the accused No.1 assaulted her with a stick resulting in fracture of the middle finger of the right hand. She also deposed that the other accused threatened to kill them. She identified MO.1 and deposed that she was treated at Government Hospital, Anekal. In her cross-examination, she admitted that the accused were related to them and that the dispute was over chopping the branches of the Eucalyptus tree. She admitted that there were cases regarding the land, where the Eucalyptus tree was standing. She alleged that there were 20 people gathered at the spot of the incident, but could not recollect any of their names. PW.4 was CW.4, who also narrated the incident and that CW.2 was held by her hair and pulled by the accused No.2 who trampled on her chest. The accused No.1 allegedly assaulted CW.3 on the dorsal side of the right hand, resulting in -7- CRL.RP No. 849 of 2013 fracture of the middle finger, while the other accused threatened to kill CW.1 to CW.3. This witness claimed that he and CW.5 intervened and stopped the fight. He identified MO.1 and admitted that he signed the mahazar under which MO.1 was seized. In his cross-examination, he deposed that CW.1 (PW.1) was his friend. He claimed that 15 people had gathered at the spot of the incident, but could not recollect any names. He claimed that accused No.1 assaulted CW.3 once.
7. PW.5 was another witness, who narrated the incident and the injuries caused to CW.2 (PW.2) as well as the injuries caused by accused No.1 to CW.3 (PW.3) and the threat by the accused Nos.3 and 4 to kill CW.1 to CW.3. This witness identified MO.1 and also deposed that MO.1 was recovered under Ex.P2. In his cross-examination, this witness admitted that he was a friend of CW.1 (PW.1). He admitted that his signature was not found on MO.1 and claimed that there were 20 to 25 people at the scene of the crime. He claimed that he knew about the dispute between the accused and CW.1. He deposed that Ex.P2 was recorded in the police station and not at the spot. PW.7 was the Doctor, who examined CW.3 (PW.3), -8- CRL.RP No. 849 of 2013 who deposed that CW.3 had suffered a fracture of the middle finger of the right hand.
8. The Trial Court noticed that the accused did not explain any circumstance in the statement under Section 313 of Cr.P.C. In view of the evidence against the accused, it held that the prosecution had proved the guilt of the accused beyond doubt and hence convicted accused No.1 for the offences punishable under Sections 324, 326 of IPC, while accused No.2 was convicted for the offence punishable under Section 323 of IPC, while accused Nos.3 and 4 were convicted for the offence punishable under Section 506 of IPC. The Trial Court sentenced accused No.1 to simple imprisonment for three years with fine of Rs.5,000/- for the offence punishable under Section 326 of IPC and fine of Rs.2,000/- for the offence punishable under Section 324 of IPC. The accused Nos.2 was sentenced to pay fine of Rs.1,000/- for the offence punishable under Section 326 of IPC. The accused Nos. 3 and 4 were sentenced to pay fine of Rs.2,000/- each for the offence punishable under Section 506 of IPC.
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9. Being aggrieved by the judgment of conviction and order of sentence, the accused filed Crl.A.No.5/2010 before the Appellate Court. The Appellate Court secured the records, heard the counsel for the accused and the Public Prosecutor and after re-appreciating the evidence on record, held that PW.2 and PW.3 were injured eye-witnesses, who narrated the incident without any contradiction. PW.4 and PW.5 were independent eye-witnesses, who also narrated the incident and the involvement of the accused in the offence as well as the object used for the crime. It noticed the evidence of PW.7 who deposed about the injuries suffered by PW.2 and PW.3, which corroborated the evidence of PW.2, PW.3, PW.4 and PW.5. The Appellate Court therefore, held that accused No.1 had assaulted CW.3 with a club marked as MO.1, which was identified PW.2 to PW.4. The Appellate Court held that the offence under Section 324 merged with an offence under Section 326 of IPC and that the accused No.1 had to be convicted for the offence punishable under Section 326 of IPC. In view of the above, the Appellate Court dismissed the appeal and confirmed the judgment of conviction passed by the Trial
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CRL.RP No. 849 of 2013Court. It modified the sentence in so far as accused No.1 is concerned and held that the offence under Section 324 of IPC had merged with the offence under Section 326 of IPC and as such, there was no need for a separate sentence for the offence punishable under Section 324 of IPC against accused No.1.
10. Being aggrieved by the aforesaid judgments of both the Courts, the accused has filed this revision petition.
11. The learned counsel for the petitioners/accused submitted that PW.4 and PW.5 were friends of PW.1 and therefore, they were interested witnesses. He submitted that according to PW.2, 10 people had gathered at the scene of the crime, while according to PW.3 there were 20 people and according to PW.4 and PW.5 there were 15 to 25 people. He claimed that none of the persons gathered were examined before the Court, which created a doubt about the incident. He submitted that the investigating officer was not examined and therefore, it was fatal to the case of the prosecution. He also contended that the prosecution had failed to prove the mahazar and recovery of MO.1 as PW.5 deposed that he had signed the
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CRL.RP No. 849 of 2013mahazar in the police station. He claimed that if MO.1 was used for the crime, it could not cause only a fracture of the middle finger but there must be a contusion on the palm or on the dorsal side. He submitted that the parties were fighting civil litigation over the property, where the Eucalyptus tree was situated and a criminal case in C.C.No.245/2008 was registered against PW.1 to PW.3 and therefore, it is possible that the accused have been wrongly implicated in a false case. He submitted that even if the accusation by the prosecution is taken into account, then the same would not result in an offence under Section 326 of IPC.
12. The learned High Court Government Pleader for the respondent/State, on the other hand, submitted that accused No.2 trampled on the chest of CW.2, while accused No.1 assaulted CW.3 causing fracture of the middle finger and therefore, the conviction of the accused under Section 326 of IPC was justified. He submitted that since the offences under Sections 323 and 324 of IPC merged with the offence under Section 326 of IPC, the Appellate Court rightly convicted the accused for the offence punishable under Section 326 of IPC.
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CRL.RP No. 849 of 2013
13. I have considered the submissions made by the learned counsel for the petitioners/accused as well as the learned High Court Government Pleader for the respondent/State. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court.
14. The Trial Court had convicted the accused No.1 for the offences punishable under Sections 324 and 326 of IPC, while accused No.2 was convicted for the offence punishable under Section 323 of IPC and accused Nos.3 and 4 were convicted for the offence punishable under Section 506 of IPC. The accused Nos.3 and 4 are dead and therefore, the proceedings against them has abated.
15. In so far as accused No.1 is concerned, the charge against her was that she assaulted CW.3 on her palm resulting in grievous injuries to the middle finger of the right hand, which was claimed to be an offence under Section 326 of IPC. In so far as accused No.2 is concerned, the charge was that she had trampled on the chest of CW.2, which constituted an offence
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CRL.RP No. 849 of 2013under Section 323 of IPC. The object used for the crime is not the one mentioned in Section 326 of IPC nor was it capable of threatening the life of CW.3. The injury itself was a fracture of the middle finger of the right hand, which could attract an offence under Section 323 of IPC, subject to it not falling under the exception under Section 334 of IPC. The provocation for the crime appears to be the act of PW.1 in chopping the branches of an Eucalyptus tree, which was the subject matter of litigation in Courts. However, there is no material placed on record by the accused in this regard when their statement under Section 313 Cr.P.C. was recorded. Therefore, there was no justification for the charge under Section 326 of IPC and the conviction of the accused No.1 for the offence punishable under Section 326 of IPC is not justified. However, all the witnesses for the prosecution have supported the case of the prosecution and deposed that the accused assaulted CW.2 and CW.3 and caused injury to CW.3 and therefore, their conviction for the offences punishable under Sections 323 and 324 of IPC deserves to be restored.
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CRL.RP No. 849 of 2013
16. In view of the above, the revision petition is allowed in part. The judgment of conviction dated 15.04.2010 passed by the Principal Civil Judge (Jr. Dvn.) and JMFC, Anekal for the offences punishable under Sections 323 and 324 of IPC is restored. However, the judgment of the conviction passed by the Trial Court and the Appellate Court for the offence punishable under Section 326 of IPC is set aside. Fine, if not paid, shall be paid within a period of one month from today, failing which, the accused Nos.1 and 2 shall undergo simple imprisonment for a period of one month in respect of the offence punishable under Section 323 of IPC and simple imprisonment for one month for the offence punishable under Section 324 of IPC.
The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.
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JUDGE PMR List No.: 1 Sl No.: 23