Karnataka High Court
State vs Sheenappa Gowda on 3 March, 2010
Equivalent citations: 2011 (4) AIR KAR R 766
Bench: V.G.Sabhahit, S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 3"" DAY or= MARCH
PRESENT
THE HOWBLE MR. 3USTICE~V_'_.4G. $A}§"H}§.»H'iI'_'_:V_
AND
THE HON' BLE MR. JusT':_c':*E_s.N'."-sVATyA..ggjA_§zA¥ANA = O'
CRIMINAL APPEAL..Nlc,_53_Q/iOC2__(A,§
BETWEEN:
STATE jg_ "" -;, . ,=
' C";,.....APPELLANT.
(By Sri £3.B.fP}iW'IN;"'S'jP'ié;~,f. )
1; 's.HEEN'APPA GOWDA
- aA,GE!,') ABOUT44 YEARS
_SV/OSIODIYAPPA GOWDA
E. V'R_{A.'M_I'3iHA MIJE MANE,
'5<A~;sa_w;0'oR, PUTTUR.
i'---'V':l.J'i'"":rV'ANNA GOWDA (DEAD)
" VVAQED ABOUT 51 YEARS (Appeaf is abated
S/0 OF VODIYAPPA against respondent
A GOWDA No.2 wide order dt.
R/AJVSITHA MIJE MANE, 19.09.2002)
KANIYOOR, PUTTUR.
3 KSSHALAPPA GOWDA
MAJOR
--: 3 I--
JUDGEMENT
This appeal is filed by the State being aggrieved by the judgement of the Court o,:.f"'»uthe Sessions Judge, Dakshina Kannada, Man'g-a'lol_f'_e,»I' Criminal Appeal No.170/1999 dated,.i,if4,,v0?ii;~2,oo'2,l_"= wherein the learned Sessions has':
the appeal in part and has' confirlnaed the trial Court that the acc'u1';ed_Nos.~1'&to'V'3 and 5 are guilty of having lipunishable under Sections 143, 324 of the Indiavnhllbeinlalv cede midget aside the finding of the tzr'-iall«coufttiaat--._:the.~accused are guilty of the offence l4bv:ny_nie.h'.abl'eSunder Section 326 of I.P.C. F'ul':th,e»r, the l'ea'i*'n'ed Sessions Judge has set aside of imprisonment. and fine passed by 'thue tvr.iaI"::.C£ourt and in lieu of the same, has sentericed each of the appellants therein to pay a of Rs.250/~-- and in default of payment of fine, to undergo imprisonment for 15 days for each of the offences punishable under Sections 143, 147 gal.
I.P.C. The triai Court further ordered that all the corpora! punishments shall run concurren.tly.44_"and gave set off under Section 428 period of detention alreadymhunde.a"g'o'n':§..gibi/'~.Vth.ce accused. Being aggrieved conviction and sentence} accused i'r*dos.=.1f"t.o'..3Vand preferred criminal appeal____i§i'o:.1.T;j0/199$'on} the fiie of the Sessions"<--_flJuci_ge:;' iiilaitslhina Kannada, Mangalore. v_ A'
2.4 jl~.ve".=e.g;fn--ed==__Session.s"Judge, by judgement dated Z!.4.{5i;.2i£i:C1l2;'"aconfirmed the judgement of convictioanll paxssaéd the trial Court against the accgused Nosfiito 3: and 5 in respect of the offences .A 1p.t,lnis'Ai*tAa%i3ivAe*~--under Sections 143, 147, 148, 447 and ._3'i2_4 'e%""_z9'c:,_';"'"end set aside the finding of the trial co'urt"-thatliithe accused Nos.1 to 3 and 5 are guilty of if 'itixe offence punishabie under Section 326 of I.P.C., modified the sentence as already referred to "above. Being aggrieved by the said judgment of the iearned Sessions Judge in so far as it relates to the '\w?:» dated 22.10.2002 and wherefore, the appeal survives only in respect of accused Nos.1 and
5. Having regard to the contentions"*:i:if«--g?ie!:l, the points that arise for our determinatilonli:'i'i.§fthji'ie:.p2~ appeal are: j '
1. Whether the; finpdingi 'Vof.__ 'the " A j learned Sessions JLidgeia'h_o:i-ding prosecution has fa'ii_e't£._ to prove_ accused have comrriitted theilloffejnce punishable un'i'cieA_r read Viivith :.;SectilAo'i$.._--vV and the offence com.mitted't-he-».accused falis within the amxbiti ofvsecijion,-7324 of I.P.C., is justified or calls for interference in this appeal? order ?
AAPointvv!silt>.1 : The finding of the appellate
1..vcou7rt is justified.
V. ....%§--"oint No.2: In View of our answer to point No.1, the finding given by the learned Sessions 11» Judge convicting the accused under Section 3.24 of I.P.C., by modifying the finding of the tri_aVlVi_:'C_o~urt that the accused have committed punishable under Section 32t_3Mof I.9'.'c;;-.':;§e'entitled it to be confirmed. However, 'the;"'se;'nt'e.nce"'irnfifiosed for the offence punishabie__ under Sec;t'io}";..._V3V2.4 I.P.C., is Eiable to be enhar3_ce.d as pet final order for the foliowing: V * '' Pubiic Prosecutor has taken usthro'ug'h:'thVe"_.»e$;idence of Pws. 1 to 10 and alsiotiae doicuthyentis got marked by the prosecution .A :,:eur:£-;.~<s'.P1 to P8(a).
--~ we have scrutinized the evidence adiduceffh 'tgyfthe parties.
'*8, ' Both the trial Court and the appeilate 'tlourtiiihave concurrentiy accepted the evidence of «K/L_,§ <16;
case, the defence taken by the accused is one of denial. It is clear from the evidence of PW;w1:'j't_h'at he has given description of injury examination of Pw.4 and__..ha_s co'ni"e:..';»t'o' conclusion that there was fracture' of~.th.e Phalanx. It is well"j._'v-'?\e.t\t|ed"" 'the * if prosecution alleges that :g.ri:ev_ou_s been caused, it is necessaryfoAry_'t3hAeh iéprfosjecution to prove the same beyond irhe evidence of PW.1 was injury as describe-.ci' certificate - Ex.P2. When PW.1 it fracture, he ought to hayyvgiehy i'referredVl_ the injured - PW.4 for taking ,' ~A..i:-o"~--.confirm his finding that there is fra--cltu"reR_"_~of"!'middle phalanx. It is now well seitltledfi "that unless the prosecution produces theax-ray for confirmation of fracture opined the Doctor on medical examination "clinically, it cannot be said that the accused have K}
--: 17:
caused grievous injury of fracture. It is true that in the cross-examination of PW.1, the learned _co_iu.n_s.ei appearing for the accused has not nature of injuries spoken to byMP\/_V.1._-"Hovv'e.ver,"the i"
same wouicl not dispense withiiéthe'ep§*od»uictionoi'-.the_: X--ray by the prosec:u_t'i--o_n 'ton proveifileywond reasonable doubt that th_ei°:i.njurued.""ig.e§3. 5t§%stained fracture of middle "<-.;;!":altaV_un:r*;p,' is an opinion given by PW.1»-V Doct'or..c}nIv.Aoi,n examination of PW.4, Ciear that the holding that the to prove that the accused Nos.1 3 teed" committed the offence punfiéiisihabie lfiection 326 of I.P.C. and the i esiene'evi.ge;Fnm:tted by them fails within the ambit of 5e'e:ie'n5":sr.24~f,e§ mac. is justified. * 12. However, so far as sentence for the effehce punishabie under Section 324 of I.P.C. is "concerned, in view of the fact that the offence under Section 324 of I.P.C. is punishable with \.~»'~ :18' imprisonment of either description for a term which, may extend to three years, or with with both and having regard to the incident Occurred on 30.04.1_.9.9,3 Vniyne years had elapsed prior to judgement of the learned Sessions ~i.e., 2 0' 24.01.2002, the learned rightiy held that it was not"*proper the accused to imprisonment at si?'uirther, as on today, sinceijy:1a§¥¢"'éIapsed after the incident, to sentence the ment of imprisonment.
The appeiai fiagainst appellant No.2 --- Putitanria Giowda (accused No.2 before the triai .A 'i«as:"'he died during the pendency of this ,,ai_%,p/yea'!riiiiiaradifappeai has been dismissed against ap'gje|i'z¥§;$t"'No.4 - Chidananda Gowda (accused No.5 'beforeflithe triai Court). Therefore, sentence is to be "passed oniy against respondents 1 and 3 herein ( it "appeiiants 1 and 3 before the Sessions Court and accused Nc>s.1 and 3 before the triai Court ). The \\_/x .4; 39 :.
fine imposed by the learned Sessions Judge against the respondents 1 and 3 herein for the_.vofferaVce punishabie under Section 324 read 149 of 3:.:=>.c. is Rs.1,.000/- e_a.ch_ and"i'n'--i:de'fau'_itV V payment of fine, to undergo;'~:.siijf:piie iimprisoninaoefit for 45 days each. have .coinfAii=inv1-edthere concurrent findings of boyt_hvv':A"t:he.__VCourt:s:iiaeviféow that PWs.3 and 4 had s'us"taAiiAied'inj'uri.es;.,,and conviction of the respondents.-'iviaindi the offence punishame?/Iggigiéqpr is upheid. of simpie injuries susteinedi 4 'and the other facts of the case andléthe upon the question of set§iteri~ce, it"v...\:zvou«iVd be appropriate to sentence ,' :respo:nAden'ts__1 and 3 ( Accused Nos.1 and 3 before ) to pay a fine of Rs.10,000/~-- each and ifiipdefiauit of payment of firae, to undergo simple ciznnprivssonment for three months for the offence "'vpiuriishable under Section 324 of I.P.C. read with it "Section 149 of I.P.C. Accordingly, we answer the \,» :21.
and remand respondent 5505.1 and 3 for undergoing default sentence in accordance ._ with law.
Out of the fine amount _deposit_e"d," "' (Rupees Five Thousand on!y)v'»A;sha'la:..§3e'=p»a'id" t6v:P~W*.T13:
- Balakrishna Gowda' '4-as C-anwperisadtjo-n fiand --. L' Rs.10,0€)O/- (Rupees Ten___§'ie..<:)usVand.e.n:lV§/) vvshali be paid to PW.4 - Smf.'u§L:sAh'ee§j_avva's.'¢~a'mpensation.