Karnataka High Court
Raheema W/O Tousif Shanwale vs The State Of Karnataka on 11 June, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3527/2013
Between:
Raheema W/o Tousif Shanwale
Age 25 years, Occ. Household,
R/o Nehru Nagar, Bjapur.
... Appellant
(By Sri Shivanand V.Pattanashetti, Advocate)
And:
The State of Karnataka
Represented by
Additional State Public Prosecutor,
High Court, Kalaburagi Bench,
Kalaburagi.
... Respondent
(By Sri Gururaj V.Hasilakar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Code of Criminal Procedure praying to set aside the
judgment of conviction and order of sentence dated
26.12.2012 passed by the I Additional Sessions Judge, at
Bijapur in S.C.No.146/2011 and acquit the
appellant/accused in the interest of justice and equity.
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 26.12.2012 passed in Sessions Case No146/2011 by the I-Addl. Sessions Judge, Bijapur.
2. The brief facts of the case are as under:
Accused No.1 having suspected that the complainant/PW.1 has an illicit relation with her husband and thereby got enraged against the complainant and with common intention along with accused No.2 who is brother-in-law of accused No.1 to commit murder of the complainant/PW.1 on 29.06.2010 at about morning 6:00 a.m. both accused Nos.1 and 2 came on the roof of the maternal aunt's house of the complainant and assaulted her with chopper on the head of the complainant/PW.1 and abused in filthy 3 language and thus caused grievous injuries on the head of the complainant and if accused No.1 would have succeeded in her attempt then the complainant would have been done to death and for this accused No.2 had instigated accused No.1. Therefore, with these averments PW.1 had lodged first information statement (FIS) before the police and accordingly the police have registered FIR for the offences punishable under Sections 307, 109, 504 and 506 read with Section 34 of IPC.
3. After registration of the crime, PW.12 had started investigation and filed charge sheet for the offences punishable under Sections 109, 307, 504, 506 read with Section 34 of IPC.
4. After receipt of charge sheet the jurisdictional Court since found that one of the offence alleged is exclusively triable by the Sessions Court. Thus, committed the case to the Sessions Court and the 4 Sessions Court after receipt of the case proceeded with the trial. The Sessions Court had framed charges against accused Nos.1 and 2 for the offences punishable under Sections 307, 504, 506 and 109 read with Section 34 of IPC.
5. Upon reading and explaining the charges to the accused Nos.1 and 2 they have pleaded not guilty and claims to be tried and accordingly by recording their pleas the Sessions Court has proceeded with the trial.
6. After completion of prosecution side evidence the accused were subjected to examination under Section 313 of Code of Criminal Procedure and the accused have simply denied the incriminating evidence and denied the prosecution case. The accused have not submitted any written statement and did not choose to lead defence evidence. Thus, it is totally denial of the case of the prosecution by the accused. 5
7. The prosecution has examined totally 12 witnesses as PWs.1 to 12 and got marked documents as Exs.P1 to P16 and got marked material objects as M.Os.1 to 5.
8. The Sessions Court after considering and analyzing the entire evidence on record formed an opinion that the prosecution is able to prove the guilt against accused No.1 for the offence punishable under Section 326 of IPC instead of the offence under Section 307 of IPC. Further the Sessions Court had acquitted both accused nos.1 and 2 for the offences punishable under Sections 504, 506 and 307 read with Section 109 of IPC. Therefore, the Sessions Court had recorded conviction of the accused No.1 alone for the offence punishable under Section 326 of IPC by forming an opinion that the prosecution has failed to prove the guilt under Section 307 of IPC. Thus, the Sessions Court has convicted for the offence under Section 326 of 6 IPC had passed the sentence against accused no.1 to undergo simple imprisonment for a period of three years with fine of Rs.5,000/- and with default clause to undergo simple imprisonment for a period of six months if failure to payment of fine amount. The Sessions Court had acquitted the accused no.2 for all the charges leveled against him.
9. Being aggrieved by the judgment of conviction and order on sentence passed the accused no.1 had preferred the present appeal on various grounds inter alia as stated below ;-
• The prosecution has not proved beyond reasonable doubt that the accused/appellant had committed offence under Section 326 of IPC by non-production of x-ray or C.T.Scan report to show that the complainant had sustained fracture injuries. Therefore, in absence of x-ray or C.T.Scan report holding guilty under Section 326 of IPC cannot be made and thus, wrongly convicted the accused/appellant under Section 326 of IPC. 7 • Eventhough the Sessions Court had observed that M.O.1 weapon is not sharp edge chopper and it is difficult to cause grievous injury. Therefore, there is doubtful circumstances in causing fracture injury to PW.1 - complainant. • Further the PWs.2 and 7 are the relative witnesses and their evidence is not found to be believable as they are highly interested witnesses to the incident. That from the evidence it is revealed that they have not seen the incident and therefore if evidence of PWs.2 and 7 are kept aside the only evidence available is PW.1. But PW.1 evidence alone cannot be relied as there are various discrepancies find- out and in support of any further independent witnesses the evidence of PW.1 cannot be believed. Therefore, the appreciation done by the Sessions Court is not correct. Hence, prayed for acquittal of the accused by allowing the appeal.
• Further the appellant was not examined correctly under Section 313 of Code of Criminal Procedure and did not put all the incriminating circumstances to the appeal.
8
10. Heard the arguments from both sides by the learned counsel for the appellant and the learned High Court Government Pleader and perused the materials on record and the point that arise for my consideration is ;
"Whether the prosecution proves beyond reasonable doubt that the appellant had committed offence under Section 326 of IPC and in this regard the finding arrived at by the Sessions Court is correct ?
11. I would like to place the submission made by the learned counsel for the appellant and the learned High Court Government Pleader at appropriate places while discussion is made by assigning reasons in order to avoid repetition of their submission.
12. It is necessary and proper to have a glance of the role played by the prosecution witnesses before making analysis of the evidence on the prosecution. 9
13. PW.1 is the complainant and sustained injuries; PW.2 is maternal aunt of PW.1; PWs.3 and 4 are the seizure panch witnesses to M.Os.2 to 5 but they have turned hostile; PWs.5 and 6 are the spot panch witnesses; PW.7 is the daughter of PW.2 and cousin of PW.1; PW.8 is the owner of the house; PW.9 is the witness as res gestae as per the prosecution; PW.10 is the Doctor who had examined PW.1 and issued wound certificate; PW.11 is the panch witness to the weapon stated to have been used and PW.12 is the Investigating Officer and filed charge sheet.
14. The PW.1-complainant had lodged first information statement (FIS) and stated that the accused no.1 suspected that the complainant is having illicit relationship with her and by misunderstanding the said fact the accused nos.1 and 2 by sharing common intention between them in furtherance of commission of offence of murder and accordingly when PW.1 came to 10 Vijayapur during summer vacation as their children are in Vijayapur and she had been to the house of PW.2 and her mother is also in the house of PW.2 and on 28.06.2010 at night when the PW.1 and others have slept on the roof top and on 29.06.2010 at morning 6.00 a.m., the accused nos.1 and 2 came to the roof top of the house and the accused No.1 assaulted to PW.1 on the head with the help of chopper and abused in filthy language and the accused no.2 had instigated accused no.1 and at that time she had fallen on the roof top and then her aunt PW.2 and cousin PW.7 rescued her and had taken her to the hospital and PW.1 has lodged FIS in the hospital when she was taking treatment. PWs.2 and 7 have also deposed on the same line that the accused no.1 had assaulted PW.1 and accused no.2 had instigated the accused no.1/appellant.
15. Upon considering the evidence of PWs.1, 2 and 7 with proper analyses with reference to the cross- 11 examination nothing is elicited that they are telling falsehoodness before the Court so as to implicate accused nos.1 and 2 falsely. The evidence of PWs.2 and 7 are to be categorized as res gestae witnesses by taking of Section 6 of the Indian Evidence Act.
16. From perusal of evidence of PWs.2 and 7 even though it is not revealed that they have seen the incident exactly as on that time they were in the house in lower floor and upon hearing the scream of PW.1 they rushed to the roof top by that time the accused Nos.1 and 2 were in the process of escaping from the spot and at that moment the PW.7 had tried to catch accused no.1 but the accused no.1 escaped from the clutches of PW.7. Therefore the evidences of PWs.2 and 7 are found to be relevant as per Section 6 of the Indian Evidence Act for that reason that soon after the incident they have rushed to the roof top but at that moment accused nos.1 and 2 escaped and on the roof top they saw that 12 PW.1 had sustained bleeding injuries and had fallen on the roof top floor. Therefore, the evidence of PWs.2 and 7 is found to be relevant as per Section 6 of the Indian Evidence Act as their presence and knowing the fact that PW.1 has sustained bleeding injuries on the head and showing the accused nos.1 and 2 at that particular moment formed part of same transaction. There is no time gap between the accused no.1 had assaulted PW.1 and due to such assault PW.1 had sustained bleeding injuries and fell on the top floor and at that very moment PWs.2 and 7 had gone to the roof top and seeing PW.1 was on the floor with bloodstain with bleeding injuries, has formed the same transaction. Therefore, the evidence of PWs.2 and 7 is found to be relevant as per Section 6 of the Indian Evidence Act. Therefore upon considering the evidence of PW.1 she has categorically stated that the accused no.1 had assaulted on the head with chopper and she has sustained bleeding injuries and at that time the PW.1 13 had worn red color nighty, chudidar paijama and veil. Therefore the evidence of PWs.2 and 7 corroborates the evidence of PW.1. The PWs.2 and 7 have stated the nature of clothes worn by PW.1 at the time of incident then the same were seized as per seizure panchanama - Ex.P.3 in the hospital when PW.1 was taking treatment. Upon considering the cross-examination of these witnesses upon re-appreciation this court do not find any discrepancies in their evidence so as to disbelieve their evidence. Therefore, in this regard the Sessions Court has appreciated the evidence of PWs.1, 2 and 7.
17. PW.2 is the maternal aunt of PW.1 and PW.7 is the cousin of PW.1 and even though they are relative witnesses cannot be said that they are highly interested witnesses and in this regard the submission made by the counsel for the appellant that their evidence is not found to be believable because they are highly interested witnesses cannot be accepted simply for the 14 reason that even though PWs.2 and 7 are relatives of PW.1 they cannot be said that they are highly interested witnesses so as to implicate accused nos.1 and 2 in false case. If there is animous on the part of PWs.2 and 7 to implicate falsely then their evidence can be scrutinized carefully. But in the present case there is no defence put-forth by the accused that accused nos.1 and 2 are falsely implicated in the case because of enmity between them. In this regard, I place reliance on the judgment of Hon'ble Apex 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 and infirmities to find out whether such discrepancies shake the truthfulness. Some 15 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 the truth. A statement may be partly rejected or partly accepted [18]. Want of independent 16 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 such the normal discrepancy does not affect the credibility of a witness."
(Emphasis is supplied by me) 17
18. PW.2 is the maternal aunt of PW.1 and Pw.7 is the cousin of PW.1 and as per the submission made by the learned counsel for the appellant they are highly interested witnesses and cannot be believed. Under these circumstances, the evidence of PWs.2 and 7 is to be carefully considered because they are the relative of PW.1. Just because PWs.2 and 7 are stated to be interested witnesses 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 down as an invariable rule that interested evidence can never form the basis of conviction 18 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 person. If the answer to these questions be in the affirmative, and the evidence of the witness 19 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:
20
• 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. 21 Therefore the evidence of PWs.2 and 7 cannot be simply brushed aside stating that they are the relatives of PW.1 and are highly interested witnesses.
19. Further more the PW.1 is the complainant and had sustained injuries in the incident. She has clearly stated the role played by accused nos.1 and 2 and during the course of cross-examination nothing is found to discredit her evidence. Further more the evidence of PW.1 can be analyzed with reference to the medial evidence.
20. PW.10 is the Doctor who had stated that he was Senior Specialist at District Hospital, Vijayapur and on 29.06.2010 at 6.40 a.m., an injured person who is the PW.1 complainant herein was brought her by mother Rajavva, with a history of assault for treatment and upon examination he found the following injuries ;-
i. There is a lacerated injury over the head, it is 7x2 cm., bleeding is present;
22ii. There is a lacerated injury over the left supra orbital region, it is 7x2 c.m., bleeding is present;
iii. There is a lacerated injury over the left temporal region, it is 7x2 c.m., bleeding is present.
It is the evidence of PW.10 that upon taking x-ray, fracture to the skull is not revealed but thereafter taking such CT scan of brain which reveals comminuted fracture of left frontal bone and the above said injuries are grievous in nature and age of injuries were within 4- 6 hours from the time of examination and accordingly he had issued wound certificate as per Ex.P.10.
21. Further it is the opinion of PW.10 that if weapon like M.O.1 is used for assaulting then the injuries what are stated in the wound certificate Ex.P.10 could have been occurred. Upon considering the cross- examination of PW.10 nothing is elicited to say that the Doctor is telling lie before the court. 23
22. Therefore upon considering the medical evidence as above stated coupled with the evidence of PW.1 and as per the prosecution case and the evidence discussed above the alleged incident was taken place on 20.09.2010 at morning 6.00 a.m., and immediately the PW.1 was taken to the hospital and on the very same day within the time of 40 minutes the PW.1 was taken to the hospital and was examined by the Doctor - PW.10 at 6.40 a.m.,. Therefore, there is no much time gap between the time of occurrence and examining the PW.1 medically.
23. Further the evidence of PW.1 that the accused no.1 had assaulted on her head and she had sustained bleeding injuries on the head, which is corroborated, by the above stated medical evidence. Therefore, there is no difference between the ocular evidence of PW.10 - Doctor coupled with the medical certificate Ex.P.10 and with the evidence of PW.1. 24 Therefore, the evidence of PW.1 is found to be intact and corroborated by the evidence of PW.10 - Doctor also. Therefore, it is not only the availability of the evidence of PW.1 that the accused/appellant committed offence alleged but that is also corroborated by the evidence of PWs.2, 7 and 10 - Doctor coupled with wound certificate Ex.P.10.
24. Then coming to the other circumstantial evidence even though PWs.3 and 4 have turned hostile regarding seizure of clothes M.Os.2 to 5 but the PW.12 the Investigating Officer had stated that he had seized the said clothes M.Os.2 to 5 in the hospital and there is no reason to disbelieve the evidence of PW.12 - Investigating Officer who had narrated the sequence of events during the course of investigation. Therefore, turning hostility by the PWs.3 and 4 regarding seizure of clothes as per Ex.P.3 cannot be doubted simply for the reason that PWs.3 and 4 have turned hostile. 25
25. PWs.5 and 6 who are spot panch witnesses have partially supported the prosecution case that the PWs.10 and 12 and other police officials have come to the spot and conducted spot panchanama as per Ex.P.4 and accordingly they have put their signature. The evidence of PW.12 regarding conducting spot panchanama is corroborated by the evidence of PWs.5 and 6 and therefore the spot panchanama conducted on the place of incident further strengthens the prosecution case against the accused/appellant.
26. Then coming to the another circumstances regarding discovery of the chopper as per discovery panchanama Ex.P.11. Even though the PW.11 had turned hostile but the evidence of PW.12 who had stated that the M.O.1 chopper was discovered at the instance of accused no.1 is found to be believable. Simply for the reason that if the panch witnesses turned hostile the evidence of PW.12 - Investigating Officer 26 cannot be made disbelieveable where the evidence of police officials inspires confidence of the court. There is no reason to disbelieve the evidence of police officials just because they are police officials. In this regard, I place reliance on the judgment of the Hon'ble Apex Court in the case of Surinder Kumar vs. State of Punjab [(2020) 2 Supreme Court Cases 563], wherein it is held that -
"14. Further, it is contended by learned Senior Counsel appearing for the appellant that no independent witness was examined, despite the fact they were available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross- examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15. The judgment in the case of Jarnail Singh v. State of Punjab ((2011) 3 SCC 521), relied on by the counsel for the respondent-State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be 27 distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil ((2001) 1 SCC 652, it was held as under (SCC p.655):
'It is an archaic notion that actions of the police officer, should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature'. "
27. The evidence of PW.12 the Investigating Officer is considered who has stated the consequence of events during the course of investigation and the entire process of investigation is found to be in natural way without there being any embellishment or attempt was made to implicate the accused falsely. The investigation conducted by PW.12 is found to be fair one. Therefore, from the investigation conducted also it strengthens the case of prosecution that the accused have committed the offence as alleged.
28
28. Therefore, upon considering the entire evidence on record once again after re-appreciating the evidence the Sessions Court has rightly appreciated the evidence on record and therefore the Sessions Court has acquitted the accused no.2 from the charges leveled against him for want of legal evidences.
29. The learned High Court Government Pleader states that the State has not preferred any appeal against the acquittal of accused No.2.
30. The Sessions Court had come to conclusion that the accused no.1 is liable for punishment under Section 326 of IPC but had not convicted under Section 307 of IPC. Therefore, the Sessions Court instead of holding guilt under Section 307 of IPC holding guilt under Section 326 of IPC by considering all the circumstances discussed above.
29
31. It is another argument canvassed by the counsel for the accused/appellant which is opposed by the learned High Court Government Pleader that it is the burden on the prosecution to prove beyond reasonable doubt that the accused/appellant had committed the offence under Section 326 of IPC. But, the prosecution has not produced any x-ray or CT scan report to show that the PW.1 sustained fracture injuries. Therefore, submitted that non production of x- ray or CT scan report it is not conclusively proved that the PW.1 sustained fracture injuries so as to say that the PW.1 had sustained grievous hurt attracting the offence under Section 326 of IPC and submitted in the light of the legal position under Section 320 of IPC. In this regard, the learned counsel for the appellant places reliance on the judgment of Division Bench of this Court in the case of State v. Sheenappa Gowda and others [2011 (4) KCCR 2759 (DB)]. The learned counsel has taken the Court to the observation made at Para 11 and 30 it is appropriate to extract the same in order to decide the applicability of the law laid down therein in the present case as -
"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 is well settled that in criminal cases, the burden of proving the guilt of the accsued is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Indian Penal Code 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 reasonable 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 that 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 X0ray by the 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 31 by them falls within the ambit of Section 324 of I.P.C. is justified."
32. In the above cited case the Doctor PW.1 had stated that PW.4 had sustained grievous injuries of fracture of middle phalanx and accordingly issued wound certificate. Therefore it is the evidence in the above cited case is that the Doctor had stated the PW.4 who had sustained fracture of middle phalanx and accordingly issued certificate and the injuries are grievous in nature. But at Para 11 their lordship have held that in order to prove the fracture of middle phalanx the prosecution has not produced x-ray report for confirmation of fracture opined by the Doctor on medical examination clinically. Therefore their lordships were pleased to observe that non-production of x-ray creates doubtful circumstances that the PW.4 had sustained fracture injures. Therefore the offence under Section 326 of IPC cannot be made and it falls within the ambit of Section 324 of IPC and accordingly 32 converted the conviction under Section 326 of IPC into Section 324 of IPC.
33. In the same line, when the present case is considered in the instant case the Doctor PW.10 had stated that PW.1 had sustained grievous injuries of comminuted fracture of left temporal bone and accordingly issued would certificate as per Ex.P.10 but had observed that x-ray did not reveal the fracture of skull but CT scan report reveal comminuted fracture of left frontal bone.
34. In the present case also the prosecution has not placed CT scan report to show that there is comminuted fracture of left frontal bone. The facts in the present case and also the facts in the above cited case are having similar to each other. In the above cited case also the Doctor opines that there is a fracture of middle phalanx supported by wound certificate and oral evidence of Doctor also but x-ray report was not 33 produced before the Court. In the present case the Doctor stated fracture of comminuted fracture of left frontal bone and supported by wound certificate but CT scan report is not produced in the present case.
35. In the above cited judgment x-ray report was not produced and in the present case also both x-ray and CT scan were not produced before the Court. Therefore, under these observations, the circumstances are found to be having similar to each other and the principle of law laid down in the above cited judgment is applicable in the present case. Therefore in absence of conclusive proof of sustaining fracture injuries it cannot be said that the offence under Section 326 of IPC is attracted but surely the present case falls within the ambit of Section 324 of IPC.
36. Further more as per Section 320 of IPC if fracture or other injuries stated in the said Section 320 of IPC it can be said that it is grievous hurt. Fracture or 34 dislocation of a bone or tooth can be definitely coming under the ambit of grievous hurt as per Section 320 of IPC. Therefore, if it is to be held sustaining grievous hurt by the victim to attract Section 326 of IPC then the fact of grievous hurt must be proved by placing cogent evidences.
37. In the present case in the absence of x-ray report or CT scan report as per principle of law laid down in the above cited judgment it is not conclusively proved that the PW.1 sustained grievous hurt of fracture of left temporal bone. Therefore in the present case it comes within the ambit of Section 324 of IPC which is voluntarily causing hurt by dangerous weapons or means. Therefore, finding of the Sessions Court that the appellant/accused had committed offence under Section 320 of IPC cannot be sustained but at the most the appellant/accused had committed offence under Section 324 of IPC. Therefore, in this 35 regard the judgment of conviction be modified into Section 324 of IPC instead of Section 326 of IPC. Hence, I answer point in partly affirmative.
38. I have heard the arguments from both the learned counsel for the appellant/accused and the learned High Court Government Pleader regarding quantum of sentence.
39. The learned counsel for the appellant argued that the appellant is woman having minor children and if she is subjected to imprisonment then the minor children could be deprived of care and custody of their mother who is appellant herein. Therefore, prays to show leniency while awarding sentence by imposing fine amount only and once again thus he places reliance on the judgment of the Division Bench of this Court stated supra in which case for the offence under Section 324 of IPC a fine amount of Rs.10,000/- only is imposed. 36
40. On the other hand the learned High Court Government Pleader submitted no leniency be given to the appellant and she should be subjected to imprisonment for the full term what is stated in Section 324 of IPC and also with fine.
41. In the present case the appellant is woman and as per the cause title in the judgment the appellant was 23 years old and judgment was delivered in the year 2012 now the appellant may be aged around 31 years. Considering the factors that the appellant is having minor children and if the appellant is subjected to imprisonment then the minor children would be deprived of care taking of their children. The appellant is in custody from 12.07.2010 to 23.07.2010. Therefore the Court is of the opinion if whatever the period undergone in the custody above stated that would be made sufficient as imprisonment by giving benefit of set off to the appellant as per Section 428 the of Code 37 Criminal Procedure. Therefore, the jail term of imprisonment is set off to the extent the appellant had undergone in the custody for the period above stated accordingly the sentence imposed sofaras imprisonment for term is concerned but regarding imposing fine amount this Court is of the opinion to impose fine amount of Rs.10,000/-. Accordingly a fine amount of Rs.10,000/- is imposed on the appellant for the offence under Section 324 of IPC.
42. Next coming to the point for grant of compensation under the Victims Compensation Scheme.
43. 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 38 (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 lay down principles of law regarding payment of compensation to the victims arising out of 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].
44. It is always not necessary to make burden on the State to pay compensation to the victims arising out of the crime but the person who found guilty of the offence alleged also be burdened to pay the compensation to the victim arising out of crime. If always in all cases making compulsion on the State to pay compensation even though the accused is having financial stability to pay the compensation then putting burden on the State would put to one more burden 39 exchequer. Therefore, wherever it is possible for the accused to pay compensation to victim then the accused may be made liable for payment of compensation to the victim. Only where in some cases if it is found that the accused is not financially viable for payment of compensation to the victim then the State may take burden for payment of compensation to the victim. Even though every offence taken place in the society is amounting for offence committed against the State in 'genre', but it is virtually the sufferer of the said offence is the victim in 'specie'. Under these circumstances there should not be any encouragement to the accused that whatever they do then the State will compensate the victim. Therefore, under these principle wherever it is possible under the circumstances the person who is found guilty of the offence alleged can also be made liable to pay compensation to the victims provided the accused is financially viable. Under these circumstances, the Court is of the opinion in the 40 present case since fine is separate part imposed on the accused but also the accused is directed to pay compensation to PW.1 - complainant herein of Rs.20,000/-.
45. Therefore, keeping in view the mandatory provision as per law and the law laid down by the Hon'ble Apex Court, it is ordered that the appellant/accused shall pay compensation to the victim PW.1 in the present case and the compensation is quantified at Rs.20,000/- payable by the appellant to the PW.1 within a period of three months from today. If the appellant fails to pay the compensation to the PW.1 victim then the appellant/accused shall undergo simple imprisonment for a period of three months.
46. In the above discussions and reasons, the order on sentence is modified to the said extent. The appeal succeeds in part. Hence, I proceed to pass the following ;
41
ORDER Appeal is allowed in part.
The judgment of conviction and order on sentence dated 26.12.2012 passed by the I Additional Sessions Judge at Bijapur in S.C.No.146/2011 is modified from Section 326 of IPC into Section 324 of IPC and it is convicted the appellant for the offence under Section 324 of IPC and the sentence of imprisonment for the term which the appellant already undergone in custody during trial. The appellant is sentenced to pay fine amount of Rs.10,000/- apart from payment of compensation.
The appellant/accused shall pay a compensation of Rs.20,000/- to the PW.1 complainant as compensation within a period of three months. In case of failure of compensation amount to the PW.1, the appellant/accused shall undergo simple imprisonment for a period of three months.
Sd/-
JUDGE sdu/sn