Karnataka High Court
Ramesh S/O Ganapayya Naik vs The State Of Karnataka on 29 November, 2016
Bench: Ravi Malimath, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 29TH DAY OF NOVEMBER, 2016
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE. SOMASHEKAR
CRIMINAL APPEAL No.2816 OF 2011
BETWEEN:
1. RAMESH
S/O GANAPAYYA NAIK
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O BANGARMAKKI, NEELAKOD,
HONNAVAR, DIST. KARWAR
2. ISHWAR
S/O GANAPAYYA NAIK
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O BANGARMAKKI, NEELAKOD,
HONNAVAR, DIST. KARWAR
3. MANJUNATH
S/O GANAPAYYA NAIK
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O BANGARMAKKI, NEELAKOD,
HONNAVAR, DIST. KARWAR
4. NAGAPPA
S/O TIMMAPPA NAIK
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O KANAKKI, KEREKONI,
HONNAVAR, DIST. KARWAR
... APPELLANTS
(BY SRI. I. P. MOSES & SRI. SANTOSH D. NARAGUND,
ADVOCATES)
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AND:
THE STATE OF KARNATAKA
BY C.P.I. HONNAVAR POLICE STATION,
HONNAVAR, DIST. KARWAR
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI. V. M. BANAKAR, ADDL. SPP)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
OF THE CODE OF CRIMINAL PROCEDURE SEEKING TO SET
ASIDE THE JUDGEMENT AND ORDER OF CONVICTION AND
SENTENCE RECORDED BY THE DISTRICT & SESSIONS JUDGE,
KARWAR, IN S.C.NO.55 OF 2005, DATED 26.08.2011, THEREBY
CONVICTING THE APPELLANTS FOR THE OFFENCES
PUNISHABLE UNDER SECTION 326 OF INDIAN PENAL CODE
AND SENTENCING THEM TO UNDERGO 3 YEARS SIMPLE
IMPRISONMENT AND IMPOSED A FINE OF RS.5,000/-, IN
DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR 6
MONTHS AND FURTHER SENTENCING THEM TO UNDERGO 2
MONTHS SIMPLE IMPRISONMENT FOR OFFENCES PUNISHABLE
UNDER SECTION 504 OF INDIAN PENAL CODE, IN DEFAULT
FINE OF RS.500/-.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, RAVI MALIMATH J. DELIVERED THE FOLLOWING:
JUDGMENT
The case of the prosecution is that on 31.05.2004 at about 4.00 pm, when the complainant and others were in their agricultural land, the accused with a common intention and holding weapons like lathis and pickaxe came towards the complainant and started abusing him in a filthy language. They :3: asked the complainant as to why they had blocked the cattle passage lane. They threatened the complainant. Accused No.4 assaulted the complainant on his hand, on the left side of his stomach and right shoulder. Rest of the accused hit the complainant on the back of his head. The son of the complainant and another intervened and tried to separate the complainant from the accused. They were also injured. Based on these facts, a case was registered in Crime No.127 of 2004 for the offences punishable under Sections 307 and 504 read with Section 34 of the Indian Penal Code ('IPC', for short).
2. Investigation was taken up. The matter was committed to the Sessions Court, which was numbered as S.C.No.55 of 2005. The accused pleaded not guilty. In order to prove its case, the prosecution examined 11 witnesses and marked 10 documents along with 7 material objects. The accused were convicted for the offences punishable under Section 326 of the IPC and sentenced to undergo three years Simple Imprisonment and to pay a fine of Rs.5,000/- each and in default to undergo simple imprisonment for six months. The accused were further sentenced to undergo :4: two months simple imprisonment and payment of fine of Rs.500/- for the offences punishable under Section 504 of the IPC. Aggrieved by the same, the accused have filed this appeal.
3. Sri. I. P. Moses, learned counsel for the accused contends that the judgment of the trial Court is erroneous. That the trial Court misread the evidence and material on record. That none of the injuries sustained by the complainant and others can be said to be grievous or with an intention to cause hurt by any dangerous weapons or means and that the assault was only on the hands and stomach etc. Therefore, the conviction of the appellants under Section 326 of the IPC is erroneous. The conviction under Section 504 of the IPC is also misplaced. That there was no intent to provoke the breach of peace at all. Only because of some bickering between the complainant and the accused, the incident has occurred. It is further pleaded that there is a counter case filed by the appellants/accused herein against the complainant herein. There too, the accused therein namely, the complainant herein, has been convicted for the very same offence. Therefore, it clearly shows that there is a case and counter case. :5: That both the accused did not have any intention to cause injury by any dangerous weapons or means. Hence he sought for acquittal of the accused.
4. On the other hand, learned Additional State Public Prosecutor disputes the same. He contends that the Sessions Court has rightly convicted the accused. That there is no error committed by the Sessions court that calls for any interference. Even otherwise, the Sessions Court has been very lenient in awarding the sentence. On the contrary, the Sessions Court should have awarded a stricter sentence on the accused.
5. Heard learned counsels and examined the records.
6. Injuries have been caused on the complainant and others. The wound certificates with reference to the complainant have been produced as Exhibits P6 and P7. Exhibit P6 is the wound certificate issued by the Kasturba Hospital, Manipal and Exhibit P7 is the wound certificate issued by the Government Hospital, Honnavara. It is narrated that there was laceration on the right arm, punctured wound over the dorsum of left hand, :6: sutured laceration over frontal region and left 2nd metacarpal fracture and injury to the tendon.
7. The wound certificates would indicate that the injuries are grievous in nature. However, the undisputed facts are that there was an altercation between the accused and the complainant. The complainant in this case was assaulted by the complainants in the counter case. The accused herein were assaulted by the accused in the counter case. It is not the case of the prosecution that such an altercation did not take place. Section 334 of the IPC is voluntarily causing hurt on provocation. That whoever voluntarily causes hurt under grave and sudden provocation without any intention that is likely to cause hurt to the other person, other than the one who gave the provocation, would be an exception to Section 324 of IPC. Therefore notwithstanding the grievous injuries that have been caused on the complainant herein, the exception as carved out is with reference to grave and sudden provocation which is the prosecution case itself. It is not that they plead that it is the sole incident. In fact the case of the prosecution is one of case and counter case.
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8. However, the incident having occurred and the complainant and others having sustained injuries, it cannot be said that the prosecution has no case against the accused. Based on the evidence and material on record, we have no hesitation to hold that the prosecution has clearly established their case against the accused insofar as the offence under Section 324 of the IPC is concerned and not under Section 326 of the IPC.
9. Since the prosecution case is one of case and counter case and the incident having taken place, there is sufficient material to show that there was an intent to provoke the breach of peace as defined under Section 504 of the IPC. Therefore, we are of the view that the conviction of the accused under Section 504 of the IPC is appropriate.
10. However, insofar as the sentence is concerned, having held that the offence alleged against the accused would not come under the provisions of Section 326 of the IPC, but under Section 324 of the IPC, we are of the considered view that it would be inappropriate to impose a sentence of imprisonment. The material on record does not invite a sentence of imprisonment. :8: Even insofar as sentence of two months imposed by the Sessions Court for the offence under Section 504 of the IPC is concerned, we are of the view that the same is also inappropriate. The sentence of imprisonment imposed by the Sessions Court requires to be modified for the reasons assigned hereinabove.
Consequently, the appeal is allowed in part. The order of conviction and sentence passed on 26.08.2011 by the District and Sessions Judge, Karwar in Sessions Case No.55 of 2005 is modified. While convicting the accused for the offence under Section 324 of the IPC, it would be just and appropriate to sentence them for payment of fine of Rs.10,000/- each, namely Rs.40,000/- in all, including Rs.20,000/- said to have been deposited before the trial Court.
Insofar as the conviction of the accused under Section 504 of the IPC is concerned, the same is confirmed. However, the sentence awarded is modified. The sentence of imprisonment for two months is set aside. The fine amount ordered as per the trial Court is sustained.
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The learned counsel for the accused submits that the said payment will be deposited before the trial Court within a period of one week from today. His submission is noted. On the said deposit being made, Rs.40,000/- is to be apportioned as follows:
An amount of Rs.20,000/- already in deposit before the trial Court is to be paid to the complainant-PW6.
Out of Rs.20,000/- to be deposited, Rs.15,000/- shall be paid to the complainant and Rs.5,000/- shall be paid to the State in order to defray the cost of investigation.
Sd/-
JUDGE Sd/-
JUDGE gab