Karnataka High Court
Sri Ravikumar vs State By Lakkavalli Police on 19 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 988, 2020 (3) AKR 220
Author: K.Somashekar
Bench: K.Somashekar
:1: R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION NO. 215 / 2014
BETWEEN
Sri Ravikumar
Aged 33 years
S/o Armugam
R/at No.Rangenahalli Village and Post
Tarikere Taluk
Chikkamagalur District 573201.
... Petitioner
(By Sri. Chandrahasa Rai .B, Advocate)
AND
State by Lakkavalli Police
Represented by SPP
High Court Building
Bangalore - 560001.
... Respondent
(By Sri. Rohith .B.J, HCGP)
This Criminal Revision Petition is filed under
Section 397 r/w 401 of the Code of Criminal Procedure,
praying to, set aside the judgment and order dated
06.02.2014 passed by the Prl. Sessions Judge,
Chikmagalur in Crl.A.No.190/2013 and confirming the
judgment and order dated 18.04.2013 passed by the
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Senior Civil Judge and Prl. JMFC, Tarikere in
C.C.No.332/2010.
This Criminal Revision Petition Coming on for
Hearing, this day, the court made the following:
ORDER
This petition is directed against the judgment rendered by the Prl.Sessions Judge, Chikmagalur in Crl.A.No.190/2013 dated 06.02.2014 dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the Senior Civil Judge and Prl.JMFC, Tarikere in C.C.No.332/2010 dated 22.4.2013 convicting the accused for the offences punishable under Section 341, 324 and 326 of IPC.
2. For the offence punishable under Section 341 of IPC, the accused was sentenced to undergo RI for a period of one month and to pay a fine of Rs.500/- and in default to pay the fine amount, to undergo, SI for a period of eight days. Further, for the offence punishable under Section 324 of IPC, the accused was sentenced to undergo RI for a period of six months and to pay a fine of Rs.2,000/- and in default to pay the fine amount, to :3: undergo, SI for a period of one month. For the offence punishable under Section 326 of IPC, the accused was sentenced to undergo RI for a period of two years and to pay a fine of Rs.8,500/- and in default to pay the fine amount, to undergo, SI for a period of one month. All the sentences were ordered to run consecutively. After recovery of the fine amount, the same was ordered to be paid to the victim complainant PW-1 - Manjunatha as compensation under Section 357(B) of Cr.PC.
3. The brief facts of the case of the prosecution is that on 10.03.2010 at about 5.00 p.m. near the sandy ground of Bhavikere village, accused wrongfully restrained PW.1 - Manjunatha, who was aged about 15 years by obstructing him from moving on the road and voluntarily assaulted him with a handle of spade on back of his head, right hand and right leg and voluntarily caused simple and grievous injuries. Immediately thereafter, the injured was shifted to Government Hospital, Tarikere. While he was under
treatment on 11.03.2010 at about 1.00 p.m. the Lakkavalli police visited the Government Hospital, :4: Tarikere and received Ex.P1 - the complaint of the injured - Manjunatha and a case came to be registered in Crime No.17/2010 for the offence punishable under Section 341 and 324 of IPC. Subsequent to registration of crime, the IO took up the case for investigation, recorded statement of witnesses, secured injury certificate of complainant and laid the charge sheet against the accused for the offence punishable under Sections 341, 324 and 326 of IPC.
4. Subsequent to laying of charge sheet, the accused participated in the proceedings. Thereafter, the charges came to be framed against the accused, whereby did not plead guilty and claimed to be tried. Subsequent to framing of charges, the prosecution in order to substantiate its case, examined in all PWs.1 to 8 and got marked documents as per Exs.P1 to P6. MO.1 - handle of the spade was marked. Subsequent to the closure of the evidence on the part of the prosecution the accused was examined as required under Section 313 of Cr.PC for enabling him to the incriminating statement appeared against him. But :5: accused declined the truth of the evidence of the prosecution adduced so far. Subsequently, the accused got examined two witnesses as DW.1 and DW.2. No documents were marked on his side.
5. Subsequently, the trial Court in C.C.No.332/2010 after hearing arguments advanced on behalf of the prosecution and so also, the defense counsel, passed the impugned judgment convicting the accused for the aforesaid offences. The said judgment of the trial Court was challenged by the accused before the first Appellate Court in Crl.A.No.190/2013. The first Appellate Court vide judgment dated 06.02.2014 dismissed the appeal and confirmed the judgment rendered by the trial Court. Hence, this criminal revision petition by the petitioner/accused by urging various grounds.
6. Sri Chandrahasa Rai, learned counsel for the petitioner contends that both the courts below have erred in relying only on the evidence of the prosecution witnesses without there being any corroboration and erroneously have concluded that the prosecution has :6: proved the case against the accused beyond reasonable doubt without taking into consideration the evidence of defense witnesses i.e., DW.1 and DW.2.
7. He further contends that the Courts below have appreciated the evidence of eye witnesses of deliberate denial without taking into consideration the suggestions put by defense counsel during the cross examination. Further, there is considerable delay in lodging the complaint and recording of statement of eye witnesses which are not appreciated by the courts below. Further, PW.1 to PW.3 have mentioned different timings of the occurrence of incident which goes to the root of the matter and they have stated that the complainant was working with them. They being the interested witnesses have been brought by the prosecution to suit their case. It is further contended that while conducting the spot mahazar as per Ex.P2, MO.1 - handle of spade was produced by the father of the complainant after two days of the incident from the open public ground which has proved the entire case of prosecution was concocted to implicate the petitioner/accused.
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8. It is the further contention of petitioner's counsel that PW.1 who is the injured took treatment at Government Hospital, Tarikere and thereafter, he was shifted to Wenlock Hospital, Mangaluru. At Tarikere, the injured was examined by PW.5 - Dr.Devaraju who issued wound certificate as per Ex.P3. Subsequent to the treatment provided him, he was shifted to Wenlock Hospital, Mangaluru in order to provide better treatment to him. But no Doctor was secured on the part of the prosecution to substantiate their case relating to treatment provided at Wenlock hospital, but the trial court has given credentiality only to the evidence of PW.5 who issued wound certificate at Ex.P3.
9. PW.2 - Hyder Ali and PW.7 - Gangadhar said to be the eye witness to the incident have not stated in their evidence as to in which angle the accused is said to have been assaulted the injured. The evidence of these witnesses are contradictory to the evidence of PW.1 - complainant and further contradictory to the evidence of PW.8 - Yogish, the IO who conducted the investigation. No medical evidence is forthcoming on the :8: part of the prosecution to substantiate their case that accused has inflicted injuries on the person of the injured. But the trial Court erred in giving credentiality to the evidence of PW.1, PW.2 and PW.7, which has resulted in miscarriage to the case of the petitioner.
10. It is the contention of the petitioner/accused that as per the evidence of DW.1 - Murugesha who has stated that there was a quarrel on account of volleyball tournament between two groups belonging to Bavikere village and Rangenahalli village. The complainant belonged to the group of Bavikere village and the accused belonged to Rangenahalli village. All the prosecution witnesses were belonging to Bavikere village of the complainant. Therefore, they have supported the version of the prosecution. The courts below erred in not appreciating the evidence of the prosecution in a proper perspective and also erred in convicting the petitioner/accused for the aforesaid offences. The impugned judgments are not based on facts and circumstances of the case. It is the specific contention of the petitioner's counsel that no specific evidence is :9: forthcoming on the part of the prosecution relating to the motive factor that accused caused grievous injuries on the person of the complainant, unless supported by any medical evidence on record.
11. Further, it is contended that the defense led by the accused clearly goes to show that the accused was not present at Bhavikere village when the alleged incident took place and therefore, the involvement of the accused in the commission of alleged offence is not proved by the prosecution beyond reasonable doubt. On all these grounds, counsel for the petitioner submits that the impugned judgments rendered by the courts below requires to be revisited and re-appreciated as the prosecution has failed to establish the guilt of the accused by putting forth positive, consistent and corroborative evidence to probabalise that the accused has caused injuries as mentioned in Ex.P3 - wound certificate, if not, certainly there would be miscarriage of justice to case of the accused who is a grave man of the charge. These are all the contentions as taken by learned counsel for the petitioner and seeking for : 10 : allowing the present petition by setting aside the impugned judgments rendered by the courts below.
12. Per contra, learned HCGP contends that the evidence of PW.1- Manjunatha the injured complainant fully corroborates with the contents of Ex.P1 - complaint lodged by him with regard to wrongful restraint and assault committed on him by the accused with MO.1 - handle of spade and thereby causing grievous injuries. The evidence of PW.1 corroborates with the medical evidence of PW.5, the medical officer and Ex.P3 - wound certificate and Exs.P4 and P5 the X- ray reports and so also, the evidence of PW.2, PW.4 and PW.7 who are the independent eyewitnesses to the incident. On consideration of the evidence on record, the trial Court has rightly opined that participation of the accused in the crime is proved by unimpeachable ocular evidence coupled with medical evidence. The evidence of prosecution is cogent, consistent and convincing supporting its case. The accused has caused wrongful restraint to the complainant who is aged 17 years and assaulted him with MO.1 - handle of spade : 11 : and caused fracture to the skull bone which is a grievous injury. A perusal of the evidence of the Medical officer and the contents of Ex.P3 - wound certificate discloses that as a result of assault on the complainant by the accused, the complainant injured has sustained hemiparasis of the right side of the body and also fracture of parietal skull bone. The injuries caused to the complainant has adversely affected both the body and the mind of the complainant. Considering the atrocity of the crime, the trial Court has rightly convicted the accused for the offences punishable under Sections 341, 324 and 326 of IPC. Further, it is contended that the first Appellate Court has also rightly dismissed the appeal preferred by the accused by confirming the judgment rendered by the trial Court. There is no justifiable ground for this Court to interfere with the impugned judgments rendered by the Courts below. On all these grounds, learned HCGP seeks for dismissal of the petition.
13. It is in this context of the contention as taken by learned counsel for the petitioner/accused and so : 12 : also, learned HCGP, it is relevant to refer to the evidence of PW.1 who is the injured complainant. In his evidence he has stated that about 1½ years ago at about 5.30 pm when he was walking towards his grandmother's house at Bhavikere village, near the sandy ground, accused obstructed him from moving on the road and assaulted him with a handle of spade on his head, right hand and right leg and caused injuries to him. As a result, he fell down on the spot and was shifted to Government Hospital, Tarikere wherein the police received his complaint and for better treatment, he was shifted to Wenlock hospital at Mangalore where he took treatment for 1 ½ months.
14. PW.2 - Hyder Ali is one of the eye witness to the incident has stated in his evidence that immediately after the accused assaulting the complainant, he took the injured to the Government Hospital, Tarikere. He has identified MO.1 - Handle of spade. Further, on the next date of incident, in his presence, the police conducted spot mahazar as per Ex.P2 and recovered : 13 : MO.1 and he has subscribed his signature to the said mahazar.
15. PW.3 - Hanumantha Bhovi, is the father of the injured complainant and also an eye witness to the incident. He has stated that on 10.03.2010 at about 4.45 p.m. near the office of Bhavikere Grama Panchayath, he found gathering of mob and when he went there, he found his injured son screaming in pain and by seeing the mob accused threw the handle of spade and ran away from the place of occurrence. Thereafter, along with PW.2 he shifted the injured to the Government Hospital, Tarikere. As a result of the injuries caused to the complainant, he has become disabled and is depending on others for his daily activities. He has subscribed his signature to the spot mahazar at Ex.P2.
16. PW.4 - Khaleel Rehaman is another eye witness to the incident and has reiterated the averments made in the complaint. He has stated that he paid a sum of Rs.50.00 to the father of the injured boy and : 14 : instructed him to shift the injured to the hospital. He has identified MO.1 - handle of the spade.
17. PW.5 - Dr.Devaraj is the Orthopedic Surgeon of Government Hospital, Tarikere has stated in his evidence that on 10.3.2010 at about 5.50 he clinically examined the injured - Manjunatha on a history of assault and found the injuries such as (i) right side hemiparasis present (ii) fresh abrasion over right parietal eminence measuring 1 x 1 cms and (iii) fresh haematoma present over left parietal eminence measuring 5 x 5 cms. He further states that on 11.03.2010 the injured was subjected to X-ray of skull and diagnosed depressed fracture of parietal skull bone on left side. Exs.P4 and P5 are two X-ray films pertaining to the fracture of skull of injured. He has stated that the injured was later shifted to Wenlock Hospital, Mangalore for better treatment. Ex.P3 is the wound certificate issued by him wherein it is stated that injury No.1 and 3 are grievous in nature and injury No.2 is simple in nature which are caused to due to assault from MO.1 - handle of spade.
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18. PW.7 - Gangadhara is another eyewitness to the incident. He has reiterated the evidence of other eyewitnesses. PW.6 - Srikantha Naika is the Head Constable of Lakkavalli Police Station and PW.8 - K.M.Yogish is the then PSI of Lakkavalli Police Station and they have supported the case of the prosecution with regard to the investigation conducted by them.
19. On the part of the defense, DW.1 - Murugesha was examined and he has stated that on the date of the incident, a Volley Ball Tournament was arranged at Bhavikere Village wherein a match took place between the Tarikere and Bhavikere villages and some altercation took place at the place of tournament and thereafter, he returned to home. He has further stated that at about 6.00 p.m some villagers of Bhavikere village had come to his house and demanded him to give amount on the ground that he has assaulted a boy of their village and also demanded amount from one Lokesh and threatened to lodge a complaint against them on failure to make payment. After 15 days of the incident he paid a sum of Rs.4,000/- to them. In the : 16 : incisive cross-examination he has stated that on the date of incident he has not seen the accused at Bhavikere village.
20. DW.2 is the father of accused. In his evidence, he has stated that on the date of incident at about 5.30 p.m. some villagers of Bhavikere village had come to him and told that accused had assaulted a boy of their village. Further, on the next date of incident the villagers of Bhavikere had come to him and demanded amount for the treatment of the injured but he refused to pay the amount. He has further stated that on the date of the incident, accused had not come to Bhavikere village.
21. It is relevant to note here that after the incident, the injured was shifted to Government Hospital, Tarikere and thereafter, for better treatment he was shifted to Wenlock Hospital, Mangaluru. FIR came to be registered based on the complaint of PW.1 who is the injured for the offence punishable under Sections 341 and 324 of IPC initially. PW.5 is the Doctor at Government Hospital, Tarikere who issued Ex.P3, : 17 : wound certificate and so also Ex.P4 and P4 - two X-ray films. Further, the injured took treatment for a period of more than 1½ months at Wenlock Hospital. But as could be seen from the evidence of the prosecution witnesses, no evidence is forth coming on the part of the prosecution in order to establish the built of the accused for the offence under Section 326 IPC which was added later on. The trial Court has given credentiality only to the evidence of PW.1-complainant and PW.2 and PW.7 who are the eye witnesses to the incident.
22. It is the specific case of the prosecution that at the time of incident, the accused had voluntarily obstructed the PW.1- Manjunath from proceeding on the road. He has specifically stated in his evidence that at the time of incident near sandy ground of Bhavikere village, accused had voluntarily obstructed him and prevented him from proceeding on the road. Further, in the cross-examination of PW.1, no suggestion is made to the injured complainant by denying the allegations of causing wrongful restraint to him by the accused. : 18 : Therefore, under the facts and circumstances of the case, there is no reason to disbelieve the oral evidence of the complainant with regard to the voluntary restraint caused to him by the accused.
23. On perusal of evidence of PW.5, the Doctor who had issued Ex.P3 - wound certificate has opined that injury No.1 and 3 are grievous in nature and injury No.2 is simple in nature. He has stated that the injuries found on the body of the injured are likely to be caused as a result of assault with MO.1 handle of spade. Based on the evidence of PW.1 - Manjunatha, the injured complainant, PW.2 - Hyder Ali, PW.4- Khaleel Rehaman and PW.7-Gangadhara, the three independent eyewitnesses of the incident who have supported the case of the prosecution to the effect that they were present at the place of occurrence and witnessed assault on the complainant. But it is relevant to note here that the PW.4 and PW.7 have not been cited as eye witnesses in the FIR and they are said to be the residents of Bhavikere village and it is the contention of the petitioner's counsel that since they belong to the : 19 : same village as that of complainant, their evidence has no credibility as they are the interested witnesses. Further, it is the contention of petitioner's counsel that there is also delay in lodging the FIR which is fatal to the prosecution case and the accused is entitled for benefit of doubt. The alleged incident took place on 10.03.2010 at about 5.00 p.m. and complaint as per Ex.P1 was lodged on the next day i.e., on 11.03.2010 at 3.00 p.m. Further, the FIR was also not got marked on the part of the prosecution which set the law into motion for investigation.
24. PW.1 - Manjunatha was shifted from Government Hospital, Tarikere to Wenlock Hospital, Mangaluru and has took treatment for more than 45 days. The same is found in the evidence of PW.1. But the prosecution has not made any endeavour to neither summon the Doctor who examined and provided better treatment to the complainant or even secured medical report from the Wenlock hospital in order to substantiate their case in respect of Section 326 of IPC. But only based on the evidence of PW.5 - Doctor at : 20 : Government Hospital, Tarikere who issued Ex.P3 - wound certificate, the Courts below have convicted the accused for the offence under Section 326 of IPC. Mere because the injuries are grievous in nature as per the evidence of PW.5, the theory put forth by the prosecution is not acceptable unless there is medical evidence of the Doctor who treated the complainant at Wenlock Hospital, Mangalore. It is the duty cast upon the prosecution to establish the guilt of the accused beyond all reasonable doubt by providing cogent, corroborative and acceptable evidence to convict him under Section 326 of IPC. But the trial Court erred in convicting the accused for the offence under Section 326 of IPC without there being any acceptable evidence on record. The conviction recorded by the trial Court and appreciated by the first Appellate Court for the offence under Section 326 of IPC is improper and unjustifiable. Having regard to the nature of offences proved against the accused and sentence prescribed for the offences under IPC, it is said that the sentence imposed by the trial Court on the accused is excessive, : 21 : capricious and perverse. Hence, the same needs interference and requires to be modified. In so far as Section 341 of IPC is concerned, the trial Court has sentenced the accused to undergo RI for a period of one month and to pay a fine of Rs.500/- and in default of payment of fine amount, to undergo SI for eight days. But having regard to the facts and circumstances of the case, it would be suffice to hold that the accused shall only pay a fine of Rs.500/- for the offence under Section 341 of IPC with regard to wrongful restraint. Accordingly, it is interfered.
25. Insofar as offence punishable under Section 324 of IPC, the trial Court has sentenced the accused to undergo RI for a period of six months and to pay fine of Rs.2,000/- and in default to pay the fine amount, to undergo SI for one month. But having regard to the offence punishable under Section 324 of IPC the accused is said to have caused grievous hurt to the complainant with means of MO.1 - handle of spade on back of head, hand and leg and caused injuries to him. But having gone through the material evidence available : 22 : on record, it is suffice to hold that the accused is sentenced to pay fine of Rs.5,000/- inclusive of Rs.2000/- imposed by the trial Court, for the offence punishable under Section 324 of IPC, which would meet the ends of justice.
26. Insofar as the offence punishable under Section 326 of IPC, the trial Court has ordered that accused shall undergo RI for a period of two years and to pay fine of Rs.8,500/- and in default to pay the fine amount to undergo SI for a period of one month. The same appears to be exorbitant. Having gone through the material evidence available on record, I find that the prosecution has not made any endeavour to put forth positive, corroborative and acceptable evidence on record to convict the accused for the offence under Section 326 of IPC and so also, has not made any endeavour to examine the Doctor or produce any medical evidence in respect of treatment undergone by the complainant at Wenlock Hospital, Mangaluru for more than 45 days, which is fatal to the case of the prosecution. Initially, the FIR was recorded for the : 23 : offence under Section 341 and 324 of IPC, but subsequently, 326 of IPC was added in the charge sheet based on the evidence of PW.5 - Doctor of the Government Hospital, Tarikere who issued wound certificate as per Ex.P3. Under the circumstances, it is said that the sentence imposed by the trial Court for the offence under Section 326 is excessive and perverse. Therefore, the same is liable to be set-aside.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER
i) Criminal revision petition is allowed in part.
ii) The judgment of conviction and order of
sentence rendered by the trial Court in
C.C.No.332/2010 dated 22.4.2013 and
confirmed by the first Appellate Court in Crl.A.No.190/2013 dated 06.02.2014 are modified as under:: 24 :
• The judgment of conviction and order of sentence insofar as it relates to offence under Section 341 of IPC is hereby modified and the petitioner/accused is sentenced to pay only a fine of Rs.500/-. The order of sentence to undergo RI for a period of one month is hereby set-aside.
• The judgment of conviction and order of sentence insofar as it relates to offence under Section 324 of IPC is hereby modified and the petitioner/accused is sentenced to pay only a fine amount of Rs.5,000/- which is inclusive of Rs.2,000/- as ordered by the trial Court. The sentence to undergo RI for a period of six months is hereby set-aside. • The judgment of conviction and order of sentence insofar as it relates to offence under Section 326 of IPC to undergo RI for a period of two years and to pay a fine of Rs.8,500/-, is hereby set-aside. : 25 : • It is said that the accused has already deposited fine amount as ordered by the trial Court in a sum of Rs.11,000/- for the aforesaid offences. Out of the said amount, Rs.5,500/- is termed as fine amount towards the sentence held under Sections 341 and 324 of IPC. The remaining amount of Rs.5,500/- is termed as compensation to the injured complainant - PW.1 -
Manjunatha as contemplated under Section 357(A) of Cr.P.C. The total fine amount and the compensation amount shall be paid to injured complainant - PW.1, on proper identification.
Sd/-
JUDGE DKB