Karnataka High Court
Sadashiva S/O Nagappa Waded And Anr vs The State Of Karnataka on 4 June, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3549/2013
Between:
1. Sadashiva S/o Nagappa Waded
Age: 33 years, Occ: Agriculture
2. Mayappa S/o Nagappa Waded
Age: 37 years, Occ: Agriculture
Both are R/o of Kakhandaki
Tq.& Dist. Bijapur
... Appellants
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP Circuit Bench
Gulbarga
(through Babaleshwar P.S.)
... Respondent
(By Sri Gururaj V. Hasilkar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment of conviction and
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order on sentence dated 16.03.2013 passed by the II-Addl.
Sessions Judge, Bijapur, in S.C.No.130/2010 and acquit the
appellants/accused Nos.1 and 2.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
The present appeal is preferred calling in question the judgment of conviction and order on sentence dated 16.03.2013 passed in Sessions Case No.130/2010 by II- Addl. Sessions Judge, Bijapur.
2. In a nutshell the facts of the case are as follows:
The PW.1/complainant is cousin of accused Nos.1 and 2/appellants and complainant/PW.1 is the brother of PW.5/injured. There was ancestral land, which is owned by the father of the accused and there was no partition in the family property. That on 10.06.2010 at about night 9:00 p.m. near the mutton shop of PW.9, situated near bus stand at Kakhandaki village, when 3 PW.5/injured was there and therein accused Nos.1 and 2 have come on motorcycle and PW.5 had asked the accused for giving partition in the land thereby accused Nos.1 and 2 have got enraged themselves and abused PW.5 in filthy language and thrown him on the ground and in furtherance of common intention to commit murder of PW.5, accused No.1 took up a stone and assaulted on the head of PW.5 and accused No.2 kicked him to his testicles and thus caused grievous injuries and thus, attempted to commit the murder.
Immediately after hearing the same, PW.1 who is brother of PW.5 and others have taken PW.5/injured to the hospital in the Jeep of PW.8 for medical treatment. On the next day i.e. on 11.06.2010 PW.1 has lodged the complaint before the police and crime is registered for the offence punishable under Section 324, 504, 307 r/w section 34 of IPC. After receipt of the complaint, PW.10 has conducted investigation and filed charge sheet for the offence punishable under Sections 324, 504 and 4 307 read with Section 34 of IPC. Since one of the offences is exclusively triable by the Sessions Court, therefore, learned Magistrate after taking cognizance had committed case to the Court of Sessions. The Sessions Court has framed the charge against the accused for the offence punishable under Sections 307, 326, 324 and 504 read with Section 34 of IPC. The accused pleaded not guilty and claims to be tried. Therefore, the learned Sessions Judge had proceeded with the trial.
3. The prosecution in order to prove the guilt of the accused has examined in all 10 witnesses as PWs.1 to 10 and got marked documents as Exs.P1 to P11 and Material Objects at Mos.1 and 2. The accused were examined under Section 313 of Cr.P.C., the accused did not lead any defence evidence and it is totally denial of the case by the accused.
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4. The learned Sessions Judge after trial and hearing the case had acquitted the appellants/accused Nos.1 and 2 for the offences punishable under Sections 307 and 504 read with Section 34 of IPC, but convicted the appellants for the offence punishable under Sections 324 and 326 read with Section 34 of IPC and passed order on sentence to undergo rigorous imprisonment for a period of 3 years with fine of Rs.3,000/- for the offence punishable under Section 326 read with Section 34 of IPC and for the offence under Section 324 read with Section 34 of IPC, it was ordered to undergo simple imprisonment for a period of one year.
5. Challenging the judgment of conviction and order on sentence as above stated, accused Nos.1 and 2 have preferred the present appeal by raising various grounds which are briefly stated below: 6
• The PW.2/Doctor who treated PW.5 found in x-ray report that there is no fracture in the skull as well as on chest and CT scan report was obtained from the out side but the prosecution has failed to produce the CT scan report and led the evidence of Doctor who was issued the CT scan report.
Therefore, conviction under Section 326 r/w Section 34 of IPC is not correct.
• The prosecution has not produced x-ray report and CT scan report to ascertain the alleged fractures and therefore, in absence of this evidence conviction under Section 326 r/w Section 34 of IPC cannot be made.
• Further the witnesses are highly interested witnesses and their evidences are found to be exaggerated one and in this learned Sessions Judge has not appreciated the material on record and on imaginary basis has passed the judgment 7 of conviction against the appellants. Therefore, on these grounds accused Nos.1 and 2 have challenged the order passed by the Sessions Court.
6. Heard arguments from both the sides.
7. I would like to place the arguments canvassed by the learned counsel for the appellants and the learned HCGP for respondent/State wherever discussion of evidence are made on the next paragraphs so as to avoid repetition of their arguments.
8. Learned HCGP supported the judgment of conviction and order on sentence delivered by the learned Sessions Court and there is no need to cause interference in the judgment and the order. Thus, prayed to dismiss the appeal.
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9. Having heard the arguments from both the sides and perusing the entire materials on record, the points arise for consideration are as follows:
1) Whether the finding of the Sessions Court convicting the appellants/ accused Nos.1 and 2 for the offence punishable under Sections 326 and 324 read with Section 34 of IPC is correct?
2) Whether the order on sentence passed by the Sessions Court requires any interference in this case?
10. I would like to make a cursory look on the evidence of the prosecution witnesses first before appreciating and analyzing the evidence with respect to the cross-examination.
11. PW.1 is the complainant who has lodged complaint as per Ex.P.1. He had stated that accused Nos.1 and 2 are his cousins and their ancestral land which is standing in the name of uncle and there is no 9 partition of the property and had requested for partitioning the family property. Further it is stated that PW.5 after finishing the market while proceeding towards his house situated in the land and when reached a place called hotel belongs to PW.9 which is near to bus stand in Kakhandaki village at that time accused Nos.1 and 2 came there and objected PW.5 regarding asking partition in the property and accused No.1 took a sharp edged stone and assaulted on the head of PW.5 and accused No.2 kicked on his testicles and immediately himself and other witnesses have rescued and then took PW.5 to the hospital in a jeep of PW.8 and on the next day he lodged a complaint before the police.
12. PW.2 is the Doctor who has treated PW.5 and prepared wound certificate and stated that PW.5 had sustained fracture of left zygomatic arch and accordingly given wound certificate as per Ex.P3. 10
13. PWs.3 and 4 are spot panch witnesses and deposed that the police have conducted spot panchanama on the place of incident and drawn panchanama and taken their signatures and also seized stone as per MO.1.
14. PW.5 is the brother of PW.1 and injured. He has stated that accused Nos.1 and 2 have assaulted him. Accused No.1 had taken a sharp edged stone and hit him and accused No.2 kicked his testicles. Thus, he had sustained injuries and he was unconscious for four days and has taken treatment in the Government Hospital, Bijapur for 17 days. Further stated that during scuffle his shirt was blood stained and the police have seized shirt-MO.2.
15. PWs.6 and 7 are the eyewitnesses and they have deposed that on 10.06.2010 at night 9:00 p.m. near bus stand at Kakhandaki village they saw that 11 accused Nos.1 and 2 have quarreled with PW.5 and accused No.1 had picked up a stone and assaulted on the head of PW.5 and accused No.2 had kicked to his testicles and both have pacified and rescued PW.5 and taken PW.5 to the hospital in the Jeep of PW.8.
16. PW.8 is the driver of the Jeep in whose Jeep PW.5 was taken to the hospital by PWs.1, 6 and 7.
17. PW.9 is the another eyewitness who had stated that accused had assaulted PW.5. There was bleeding injury to PW.5. Himself and other 3 to 4 persons have pacified the quarrel. It is his evidence that accused No.1 had alone assaulted.
18. PW.10 PSI who had conducted investigation and filed charge sheet and narrated sequence of events during the course of investigation and stated that there are ample materials available against the accused therefore filed charge sheet against them. 12 ANALYSES:
19. Point No.1: PW.5 is the injured witness. The motive in the present case is that the ancestral property is standing in the name of father of accused Nos.1 and 2 and PWs.1 and 5 were asking accused Nos.1 and 2 for their share in the property. For this, accused Nos.1 and 2 have assaulted PW.5. He has further stated that among them accused No.1 has picked up a stone and assaulted on his head and accused No.2 kicked on his testicles. Upon considering the cross examination of PW.5 in order to elicite whether there is any falsehoodness from the mouth of PW.5 but the evidence stated by PW.5 in examination- in-chief is found intact and it is proved that the evidence of PW.5 is to be trustworthy and believable. PW.5 himself is injured person. Therefore, evidence of injured person is carrying more weightage. 13
20. PW.2 is the Doctor who had stated that on 10.06.2010 at 10:40 p.m. PW.5 was brought to the hospital with history of assault and he had stated that PW.5 had sustained the following injuries:
1) Lacerated wound measuring 3cm x 2cm x 1cm over occipital region of the scalp, clotted blood present, tenderness present surrounding the wound present.
2) Swelling over left side of the face, tenderness was present.
PW.2 had further stated that a suitable treatment was given by admitting PW.5 as in-patient and next day tested and confirmed there was no fracture in the skull as well as on the chest. On 14.06.2010 CT scan was made which shows the fracture of left zygomatic arch and after giving treatment patient was discharged on 27.06.2010. It is opinion of PW.2/Doctor that the injury-2 is grievous in nature and other injuries are simple in nature and accordingly he had issued wound certificate as per Ex.P.3 Case sheet which contains the 14 details of medical treatment was given to PW.5 and it contains CT scan report and x-ray report of PW.5. Further PW.2 had stated that Investigating Officer had produced the stone and sought opinion whether the injuries could have been done with this stone and accordingly he has given report.
21. The evidence of injured witness cannot be brushed aside simply for the reason that he is interested witness. The evidence of injured witness is best evidence unless it is corroborated by other evidences. In the present case the evidence of PW.5/injured witness can be appreciated in the light of principle of law laid down by the Hon'ble Apex Court in the case of State of Himachal Pradesh vs. Rajkumar [(2018) 2 Supreme Court Cases 69] wherein it is observed as under:
"16. While appreciating the evidence of a witness, the approach must be whether the 15 evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinize the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case."
22. The above legal position is also settled in judgment of Hon'ble Apex Court in the case of Gurdev Singh vs. State of Punjab [AIR 1992 SC 1924]; Kathi Odhabhai Bhimabhai and others vs. State of Gujarat [AIR 1993 SC 1193].
23. Therefore, upon analyzing the evidence of PW.5/injured witness and PW.2/Doctor the injuries sustained by PW.5 are corroborated by the evidence of PW.2. Upon considering both of the witnesses regarding the time of sustaining injuries and taking PW.5 to the 16 hospital for treatment are having close proximity and there are no doubtful circumstances that PW.5 had sustained injuries due to the assault. Therefore, when the evidence of PW.5 is found to be not having any infirmities and corroborated by the evidence of PW.2 medical evidence. Just because PW.5/injured witness is interested witness cannot be simply brushed aside.
24. Upon considering the evidence of PW.2 his evidence is found to be intact and corroborates the evidence of PW.5 injured person. Therefore, upon analyzing evidence of both these witnesses, the evidence of the injured PW.5 is corroborated by the evidence of PW.2/Doctor that PW.5 had sustained injuries. It is opinion of PW.2/Doctor that the injuries might have been occurred 6 to 8 hours prior to the time of examination. Therefore, it is evidence of PW.2 that the patient was immediately attended at 10:40 p.m. PW.2/Doctor has examined him. Therefore, the 17 prosecution is able to prove the guilt of the accused from these two witnesses PWs.2 and 5.
25. Further, PW.1 is the complainant and PWs.6 and 7 are the eyewitnesses. They have stated that accused Nos.1 and 2 have assaulted PW.5 and PW.5 had sustained bleeding injuries on his head. The evidence of these three witnesses corroborates the evidence of PW.5/injured witness. It is suggested to PW.2/Doctor that whether if any person fall on the ground there are injuries stated in the wound certificate could have been occurred but this suggestion was denied by the Doctor. Therefore, from the medical report it is proved that the injuries sustained by PW.5 are due to the assault made with stone. Upon the evidence of PWs.1, 6 and 7 with reference to their cross- examination nothing is elicited that these witnesses are telling lie before the court. Even though PW.1 is the brother of PW.5 and the learned counsel for the 18 appellants submitted that PW.1 is highly interested witness because he is brother of PW.5.
26. PW.1 is the brother of PW.5. Learned counsel for the appellants argued that PW.1 is the brother of PW.5 and he is highly interested witness and his evidence cannot be believed. Regarding appreciation of evidence of interested witness the Hon'ble Supreme Court were pleased to lay down the principle of law how to appreciate the evidence of interested witness as contended by the appellants/accused.
27. The Hon'ble Supreme Court in the case of Bhagwan Jagannath Markad and others vs State of Maharashtra [(2016) 10 Supreme Court Cases 537 regarding assessment of appreciation of evidences of a witness in a criminal cases as under:
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks 19 and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out 20 the truth. A statement may be partly rejected or partly accepted[18]. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a 'partisan' or 'interested' witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability[19]. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as 21 such the normal discrepancy does not affect the credibility of a witness."
(Emphasis is supplied by me)
28. PW.1 is the brother of PW.5 and as per the submission made by the learned counsel for the appellants he is highly interested witness and cannot be believed. Under these circumstances, the evidence of PW.1 is to be carefully considered because he is brother of PW.1. Just because PW.1 is stated to be interested witness is not necessarily unreliable evidence. In this regard I place reliance of the Hon'ble Apex Court in the case of Hari Obula Reddi and others vs. The State of A.P. [1980 CRI.L.J. 1330 - (Criminal Appeal No.146/1977 - DD 11.09.1980)] wherein it is held as under:
"12.............But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid 22 down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent 23 person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."
In the same circumstances, I also place reliance on the principle of law laid down by the Hon'ble Apex Court in the following judgments:
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• 1989 CRI.L.J. 2113 = AIR 1989 Supreme Court 1822 - State of U.P., vs. Jodha Singh and others • AIR 1981 Supreme Court 1390 - State of Rajasthan vs. Smt.Kalki and another • 1994 CRI.L.J 2082 - Supreme Court - Brijpal Singh and others vs. State of U.P. and others • 1993 CRI.L.J 408 - Supreme Court - Nallamsetty Yanadaiah and others vs. State of A.P. • 1994 CRI.L.J 1116 - Supreme Court - State of Punjab and Gurmej Singh vs. Jit Singh and others • 1994 Cri.L.J.1980 SC - Sher Singh and another vs. State of Haryana.
• AIR 1999 Supreme Court 994 - Rachamreddi Chenna Reddy and others vs. State of A.P.
29. Therefore, applying principles of law laid down by the Hon'ble Apex Court above discussed regarding appreciation of evidence of interested 25 witnesses, in the context of arguments canvassed by the learned counsel for the appellants in the present case by stating that PW.1 is the brother of PW.5, the evidence of PW.1 cannot be rejected only the ground that PW.1 is the brother of PW.5.
30. Further more, the evidence of PW.1 is corroborated by the evidence of PWs.6, 7 and 9. The presence of PWs.6, 7 and 9 is on the date, time and place of incident cannot be disputed. These PWs.6, 7 and 9 are not relatives of PWs.1 and 5. These PWs.6, 7 and 9 have stated that accused Nos.1 and 2 have assaulted PW.5 and they have witnesses the incident and have rescued PW.5 and pacified the quarrel. Upon considering the evidence of PWs.6, 7 and 9 whatever stated in examination-in-chief stated that they have witnessed the incident is tested and analyzed with reference to the cross-examination of them but nothing is elicited in the cross-examination that PWs.6, 7 and 9 26 are telling lie before the court. Therefore, the evidence of PW.5 is further strengthened by the evidence of PWs.1, 6 and 7. It is cross examined PWs.6, 7 and 9 to the effect that their presence is doubtful and putting various suggestions and also the questions regarding the situation of their house but upon analyzing the evidences of PWs.6, 7 and 9 whatever stated in the examination-in-chief witnessing the incident is found to be true and intact and is not shaken.
31. Further PW.8 is the Jeep driver in whose Jeep PW.5 was taken to the Hospital. Even though PW.8 is not stated to be eyewitness to the incident but immediately after this scuffle PW.5 had sustained injuries, PWs.1, 6 and 7 have put PW.5 into the Jeep of PW.8 and PW.8 drove the Jeep to the Hospital. In this regard the evidence of PW.8 upon considering with reference to the cross-examination I do not find any 27 infirmities or surmises or conjectures in the evidence of PW.8.
32. Learned counsel for the appellants argued that there is a delay in lodging the FIR before the police. He argued the incident was taken place on 10.06.2010 9:00 p.m. but the FIR was lodged on 11.06.2010 at 2:00 p.m. After analyzing the entire evidence on record the incident was occurred on 10.06.2010 at 9:00 p.m. and First Information Statement (FIS) was lodged on 11.06.2010 at afternoon 2:00 p.m. But this delay cannot be said that there is inordinate delay going core of the prosecution case. The incident was taken place at 9:00 p.m. on 10.06.2010 and immediately PW.5 was taken to the hospital and admitted to the hospital at night 10:40 p.m. and PW.5 was unconscious at that time and it was prime aspect to get immediate medical attention and that was done by PWs.1, 6 and 7 in the present case. Further more, from the evidence it is 28 borne out that PW.1 was illiterate person, therefore, he lodged FIR on the next day at 2:00 p.m. and considering the entire scenario there cannot be any delay in lodging the FIR before the police.
33. PW.10 who is Investigating Officer had conducted the investigation and had narrated the sequence of events during the course of investigation.
34. PWs.3 and 4 are the spot panch witnesses who have categorically stated that PW.10 had come to the spot conducted panchanama and done panchanama as per Ex.P6 and recovered MO.1 from the place. Therefore, the investigation conducted by PW.10 and which is found to be proper one, which is corroborated by PWs.3 and 4. The prosecution produced Mos.1 and 2, blood stained shirt which is belonging to PW.5 which further corroborates the incident was taken place. Therefore, after analyzing the entire evidence on record, the learned Sessions Judge has correctly appreciated 29 the evidence on record and has rightly come to the conclusion that accused Nos.1 and 2 have committed the offence under Sections 324 and 326 read with Section 34 of IPC.
35. Learned counsel for the appellants argued that the prosecution does not have any material to show that PW.5 had sustained grievous injuries. Therefore, submitted that PW.5 had not sustained any grievous hurt and by relying on provisions of Section 320 of IPC stated that in absence of grievous hurt conviction under Section 326 of IPC is not proper. Further argued that the prosecution has not produced x-ray report during the course of trial to show that there was a fracture. In absence of x-ray report it cannot be said that PW.5 had sustained grievous injuries. Therefore, he submitted that conviction under Section 326 of IPC is not correct.
36. Learned counsel in support of his argument relying on the judgment of the Hon'ble High Court in the 30 case of State vs. Sheenappa Gowda and Others [2011 (4) KCCR 2759 (DB)] wherein at para-11 of the judgment stated that non-production of x-ray report to prove the fractured injuries and in such an event conviction under Section 326 of IPC cannot be made and that is what principle of law laid down by the Division Bench of this court.
37. Considering this argument canvassed by the counsel for the appellants and the documentary evidence placed by the prosecution during the course of trial has produced Ex.P4 case sheet with enclosures. From the record it is borne out that Ex.P4 is case sheet with enclosures which contains CT scan report and also x-ray report. Learned counsel for the appellants argued that for attracting Section 326 of IPC there must be sustaining grievous hurt stated in Section 320 of IPC and submitted that in absence of x-ray report it cannot be said that PW.5 had sustained grievous hurt. He has 31 taken to the provisions of Section 320 of IPC. In the present case applicability of Section 320 of IPC is clause-7 is applicable i.e. fracture of dislocation of a bone or tooth.
38. PW.2/Doctor had stated that PW.5 had sustained fractured injuries of left zygomatic arch which is supported by CT scan report which is produced at Ex.P4 case sheet which is part of the case sheet. Therefore, this evidence in the present case makes difference with the factual matrix in the above cited case. In the above cited case the facts are that even though the prosecution has claimed that there is fracture of middle phalanx and the Doctor had given evidence and produced wound certificate that there is fracture of middle phalanx, but that is not supported by the x-ray report. Therefore, in that factual matrix for want of x-ray report the Division Bench of this Court had formed opinion that the evidence of the Doctor and 32 the wound certificate are alone not sufficient. Therefore, it was held under Section 326 of IPC cannot be attracted for conviction.
39. But in the present case, PW.2/Doctor had stated along with wound certificate that the PW.5 had sustained fracture of left zygomatic arch as found in the CT scan report. Therefore, the evidence of PW.2/Doctor regarding fracture which is supported by the CT scan report which is produced in the prosecution. This makes difference in the factual matrix between in the present case and the above cited case. Therefore, I find there is no merit in the argument canvassed by the learned counsel for the appellants in relying on the judgment above cited. Therefore, after analyzing the entire evidences on record I do not find any infirmity, illegality or perversity in the findings arrived at by the learned Sessions Judge in convicting the accused under 33 Sections 324 and 326 read with Section 34 of IPC. Accordingly, I answer point No.1 in the Affirmative. Point No.2:
40. Learned counsel for the appellants vehemently argued that the order on sentence imposed by the learned Sessions Judge considering the relationship between the accused/appellants and PWs.1 and 5 are concerned on the higher side and harsh one. Further submitted that there was a long standing enmity between them regarding partition of family property and under sudden provocation the scuffle was taken place but accused No.1 did not have any intention to kill PW.5 and it was rightly observed by the trial Court in acquitting accused Nos.1 and 2 under Section 307 of IPC, but at the same time the sentence imposed under Section 326 is on the higher side. Therefore, requested to reduce the sentence imposed by the trial 34 court. On the other hand, the learned HCGP opposed reducing the sentence.
41. Considering the entire prosecution materials as analyzed above and PWs.1 and 5 are cousins of accused Nos.1 and 2. There was long standing dispute between them over partition of the property. It is grievance of PWs.1 and 5 that accused Nos.1 and 2 have not given share in the property. PWs.1 and 5 have asked accused Nos.1 and 2 to give their share in the property.
42. Under these circumstances, when the entire case is analyzed the quarrel took place between accused Nos.1 and 2 and PW.5 when share was asked in the property and the trial court has rightly observed that there was no intention to commit murder or attempt to murder and it was due to the land dispute and both are related to each other and this Court is of the opinion to 35 reduce the period of sentence for the offence under Section 326 of IPC.
43. Section 34 of IPC is not a substantive offence but it deals with only 'common intention'. Even though accused No.1 has only picked a stone and assaulted and accused No.2 had not used any weapon as against him, the grievance is that he kicked PW.5 to his testicles. Therefore, the Court is of the opinion to reduce the sentence and to that extent if accused Nos.1 and 2 are made to suffer two years simple imprisonment instead of rigorous imprisonment for a period of 3 years as imposed by the trial Court, that is sufficient. Accordingly, it is ordered. Accused Nos.1 and 2 shall undergo simple imprisonment for a period of 2 years under Section 326 read with Section 34 of IPC without touching upon all other part of sentences including fine amount. Therefore, in this regard so far as imposing 36 sentence is concerned, the appeal succeeds partly. Accordingly, I answered point No.2 in the Affirmative.
44. The learned Sessions Judge has ordered for imposing fine amount of Rs.3,000/- each to accused Nos.1 and 2 totally a sum of Rs.6,000/- fine amount is imposed and out of that fine amount, it was ordered to pay a sum of Rs.5,000/- as compensation to PW.5/injured.
45. Regarding payment of compensation to victims arising out of crime in the criminal cases the State Government has framed Rules namely, the Karnataka Victims Compensation Scheme, 2011 on the basis of Section 357-A of Criminal Procedure Code which is inserted in the year 2009 by the Act 5 of 2009 (w.e.f. 31-12-2009) by way of amendment. The Hon'ble Supreme Court and Hon'ble High Court of Karnataka where pleased to laid down principles of law regarding payment of compensation to the victims arising out of 37 the crime. In this regard, I place reliance on the judgment of the Hon'ble Apex court in the case of ankush Shivaji Gaikwad vs. State of Maharashtra [2013 (6) SCC 770] also in the case of Suresh and Another vs. State of Haryana [2015 (2) SCC 227].
46. Considering the injury sustained by PW.5 and he also fell on unconscious for four days and 17 days as inpatient while taking treatment in the hospital, therefore, it is appropriate to award compensation of Rs.20,000/- in addition to the compensation already awarded by the trial court payable to PW5 by accused Nos.1 and 2.
47. As observed above, the appeal partly succeeds so far as awarding sentence is concerned.
Appeal is allowed in part.
38The judgment of conviction for the offences punishable under Sections 324 and 326 read with Section 34 of IPC is confirmed.
The order on sentence is concerned it is modified that accused Nos.1 and 2 shall undergo simple imprisonment for a period of two years for the offence punishable under Section 326 of IPC. Rest of other sentences are kept intact.
Accused Nos.1 and 2 shall pay compensation of Rs.20,000/- in addition to already awarded by the Sessions Court to PW.5 within a period of three months from today.
All the substantive sentences shall run concurrently.
If accused Nos.1 and 2 failed to pay compensation, further they shall undergo simple imprisonment for a period of one month.
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The trial court is directed to secure the appellants/accused and subject them to serve sentence.
Sd/-
JUDGE sdu