Karnataka High Court
Sri B S Devaraju vs State Of Karnataka on 18 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.972/2012
BETWEEN
SRI B S DEVARAJU
S/O B.C. SHANTHAMALLIAH
AGE: 33 YEARS
OCC: ELECTRICIAN
R/AT BELLARALLI VILLAGE,
SHANIVARSANTHE HOBLI
SOMWARPET TALUK
KODAGU DISTRICT-571 236
...PETITIONER
(BY SRI B O CHANDRA SHEKAR, ADVOCATE)
AND
STATE OF KARNATAKA
BY SHANIVARASANTHE POLICE,
SOMWARPET TALUK,
KODAGU DISTRICT,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE
...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)
2
CRL.RP FILED U/S.397(1) R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE PASSED AGAINST THE PETITIONER BY
JUDGMENT DATED 09.06.2009 ON THE FILE OF THE PRL.
C.J. (JR. DN.) & J.M.F.C., SOMWARPET, KODAGU DIST. IN
C.C.NO.767/2008 AND THE JUDGMENT DATED 22.08.2012
PASSED BY THE S.J., KODAGU, MADIKERI IN
CRL.A.NO.40/2009.
THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Revision Petition is filed by the accused, who suffered an order of conviction in C.C.No.767/2008 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Somwarpet by Judgment dated 09.06.2009, whereby he has been convicted for the offences punishable under Sections 326 and 506(ii) of IPC and sentenced to undergo simple imprisonment for a period of three months with fine of Rs.1,000/- for the offence punishable 324 of IPC, in default of payment of fine, he shall further undergo simple imprisonment for a period of one month, which was confirmed in Criminal Appeal No.40/2009 by Judgment 3 dated 22.08.2012 on the file of the Sessions Judge, Kodagu, Madikeri.
2. Brief facts of the case are as under:
Upon complaint lodged by one Sri B.S.Jagadish, Somwarpet police registered a case against the accused for the aforesaid offences. It is contended that Sri B.S.Jagadish and B.D.Devaraju are brothers and they are natives of Bellarally in Shanivarasanthe Hobli, Somwarpet Taluk. There was a partition between them and land bearing Sy.Nos.99/3 and 99/4 have been given to the share of the complainant. After the partition, he got land surveyed and had put up a fence. On 19.06.2008 around 7.30 a.m., the accused caused an obstruction for the flow of water from the lands of the complainant. When the complainant questioned the accused, the accused assaulted him with a spade which he had on his left hand, left ring finger, middle finger and left knee. Thereafter gave a life threat. By the said act of the accused, the complainant suffered grievous injury. The quarrel was 4 pacified by the others and he was shifted to the hospital then he lodged a complaint.
3. The police after registering a case, investigated the matter thoroughly and laid a charge sheet against the accused for the aforesaid offences.
4. The presence of the accused was secured before the learned Magistrate and plea was recorded. Accused did not plead guilty and as such, trial was held.
5. In order to prove the case of the prosecution, prosecution in all examined 8 witnesses as PWs.1 to 8 and relied on 8 documentary evidence as Exs.P1 to 8 and prosecution further relied on a spade with which the accused assaulted the complainant as MO.1.
6. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 Cr.P.C was recorded, wherein accused pleaded not guilty. Accused did not choose to lead any evidence nor place his version to the incident on record as is contemplated under 5 Section 313(5) Cr.P.C. Thereafter, learned Magistrate heard the parties in detail and convicted the accused as aforesaid.
7. Being aggrieved by the same, accused preferred an appeal in Criminal Appeal No.40/2009. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail, dismissed the appeal and confirmed the order of conviction and sentence passed by the learned Magistrate. Thereafter, the accused is in the Revision Petition.
8. Learned counsel for the Revision Petitioner has challenged the impugned order on the following grounds:
"The order of conviction and sentence passed by the Trial Court in C.C.No.767/2008 and the Judgment passed by the 1st appellate Court in dismissing Criminal Appeal No.40/2009 preferred by the petitioner are opposed to law, facts and probabilities of the case.
It is submitted that trial court and 1st appellate court erred in not properly appreciating the oral and documentary evidence placed before the Trial court.6
It is submitted that there are several grave infirmities in the prosecution case rendering the entire prosecution case doubtful. The investigation is defective resulting in failure to place the material facts before the Hon'ble Court.
It is submitted that the petitioner owns a small piece of land measuring 6 cents wherein he has constructed a house and is residing there. The said land is surrounded in all the three sides by the land of PW1 measuring 32 cents. PW1 has stated in his cross examination to the effect that " DgÉÆæAiÀÄÄ 6 ¸ÉAlÄ eÁUÀªÀ£ÀÄß £À£ÀUÉ ©lÄÖPÉÆqÀ¨ÉÃPÀÄ JA§ D¸É £À£ÀVzÉ" and his wife has stated in her cross examination that "D eÁUÀªÀ£ÀÄß ªÁ¥Á¸ï ¥ÀqÉAiÀĨÉÃPÉA§ GzÉÝñÀ¢AzÀ¯Éà F PÉøÀ£ÀÄß ºÁQzÉÝãÉ.". The same would indicate that main intention of PW1 and PW2 is to grab the land belonging to petitioner by harassing and falsely implicating him in a criminal case. The certified copy of the depositions of PW1 and PW2 are produced as Annexure- C & D. It is submitted that main prosecution witnesses who speak about the alleged incident are PW-1:
B.S.Jagadeesh (complainant) and his wife PW2: Vedavathy. Their evidence indicates that house of the petitioner in all its 3 sides is surrounded by the land owned by PW1 and the house of PW1 and PW2 7 is situated to eastern side of house of the petitioner. The evidence reveals that the bath room drain water from the house PW1 and PW2 was deliberately let to flow towards the house of petitioner and petitioner stopped inflow of said water towards his house by putting mud to the drain.
It is submitted that evidence of PW1 and PW2 indicates that PW1 i.e., the complainant had objected petitioner for having stopped the flow of drain water into the land of petitioner. The trial court and 1st appellate court failed to notice that petitioner was protecting the walls of his house from getting dampened by flow of drain water from the bath room of PW1.
It is submitted that the trial court having observed in the judgment that PW1 and PW2, the husband and wife are interested in the property possessed by the petitioner erred in not drawing an inference that PW's 1 & 2 could have filed a false case to harass and compel the petitioner to give up the land belonging to him to them.
It is submitted that PW1 has stated in his cross examination that his cloths were blood stained. The police have not seized the said cloths during the course of investigation, PW1 has also stated that x- ray of his hand was taken both at Shanivarasanthe 8 and Somwarpet Hospitals. Police have not collected and produced the said records before the court. In that regard the trail court has observed that there are latches on the part of investigation.
It is submitted that the prosecution has failed to establish the place of alleged incident. According to the case of prosecution, PW2 claiming to be an eye witness showed the place of incident to PW7 i.e., the Head Constable. PW7 has prepared the spot mahazer as per Exhibit P2 and PW2 has signed on the spot mahazer as a witness. While in the cross examination of PW2, she has stated that the spot mahazer at Ex-P2 does not contain her signature.
It is submitted that the answers elicited from PW2 during the course of cross examination indicates that she is falsely claiming to be an eye witness to the alleged incident. The appellate court has observed that the PW2 can not be said to be an eye witness.
It is submitted that there is no corroborative evidence to support the version of PW1. The sole testimony of PW1 can never be believed since he had a strong reason to falsely implicate the petitioner in a criminal case and to harass him.9
It is submitted that alleged seizure of M.O.1 spade at the police station under seizure mahazer at Exhibit P3 is unnatural and unbelievable. The version of the prosecution that the petitioner voluntarily came to the police station along with the anticipatory bail order and produced M.O.1 spade is unbelievable. PW's 4 & 5 examined as witnesses to seizure of M.O.1 have not supported the case of prosecution.
It is submitted that according to the evidence of PW1, he was admitted to Channarayapattana Hospital for treatment. To establish the same prosecution has not examined the doctor who treated PW1 and no medical records are placed before the court in that regard.
It is submitted that the medical certificate produced as per Exhibit P-4 can not be relayed upon since the doctor who is examined as PW8 has deposed in his evidence as follows: "In Exhibit P-4 I have given my opinion based on orthopedic surgeon, Holenarasipura". No medical records are produced from the Hospital at Holenarasipura.
It is submitted that the prosecution has not placed reliable evidence to establish that PW1 has actually sustained the injuries mentioned in the wound certificate at Exhibit P-4. PW8- Doctor has admitted in his evidence that in Exhibit P-4 injury 10 no.4 is repeated twice. There is no reliable evidence to establish that PW1 has actually sustained the injuries mentioned in Exhibit P-4.
The trial court grossly erred in convicting the petitioner for an offence punishable under section 324 IPC. The appellate court erred in dismissing the appeal preferred by the petitioner.
The finding of the appellate court that the petitioner has voluntarily caused simple hurt to complainant and thereby committed an offence punishable under section 324 IPC is erroneous and incorrect. The appellate court ought to have allowed the appeal preferred by the petitioner." Reiterating the above grounds, learned counsel for the Revision Petitioner sought for allowing the Revision Petition. Alternatively, he contended that this Court may reduce the offence of Sections 326 to 324 of IPC and grant of probation to the accused as he is first time offender.
9. Per contra, learned High Court Government Pleader supported the impugned judgment and contended that both the Courts have not properly appreciated the materials on record and passed an order of conviction 11 against the accused and therefore, there is no merit in the grounds urged on behalf of the Revision Petitioner.
10. Insofar as the alternate contention is concerned, learned High Court Government Pleader submitted that the materials on record would not establish to show any leniency to the accused as admittedly the accused is the brother of the complainant and he has assaulted with a spade to his brother resulting in grievous injury and therefore, no leniency can be shown. He also contended that if the Court decides to grant the probation, the report from the Probation Officer is necessary and therefore, sought for dismissal of the Revision Petition in toto.
11. In view of the rival contentions and having regard to the scope of the Revision Petition, following points that would arise for consideration are:
"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offences punishable under Sections 326 and 506(ii) of IPC and 12 confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?
2. Whether the sentence is excessive?"
12. In the case on hand, the incident that occurred on 19.06.2008 at about 7.30 a.m., at Bellarally Village near the house of Shanthamallaiah, wherein the accused was putting mud to the canal in order to block the pre-passing of water from the house of Jagadish and Jagadish objecting for the same and quarrel that took place at that juncture and accused assaulted Jagadish with spade resulting in blood injuries, stands established by placing necessary oral and documentary evidence by the prosecution. The materials on record especially injured eye witness testimony has been rightly appreciated by the learned Trial Magistrate coupled with the corroboratory evidence on record. While so appreciating the materials on record, the Trial Magistrate also took notice of the settled principles of law by citing judgments of the Hon'ble Apex 13 court. The wound certificate marked at Ex.P4, no doubt shows that the injury sustained by PW.1 is a grievous injury. In the would certificate-Ex.P4, following injuries are noted by the Doctor who is examined as PW.8.
"1. Lacerated wound left knee ½ x 5 cms.
2. Fracture of middle phalanx of middle left finger.
3. Fracture of 3rd and 4th metacarpal left side.
4. Fracture of middle phalanx".
13. Dr.Jagadish, in his oral testimony deposed before the Court that he examined injured Jagadish on 19.06.2008 at about 8.30 a.m. In his cross examination, he admits that if a person assaulted with MO.1 like spade, the injuries noted by him in Ex.P1 could not have been caused. Despite the said admission by the Doctor, the learned Trial Magistrate proceeded to convict the accused for the offence punishable under Section 326 of IPC. Ex.P4 contains two fracture injuries on the middle finger and 3rd and 4th metacarpal bones in left hand. To substantiate the fracture injury, the prosecution did not 14 produce the X-ray certificate or radiological report. In order to classify the grievous injury, the prosecution is bound to produce the X-ray certificate or radiological report. In this regard, this Court gainfully places reliance on the Judgment of the Division Bench of this Court in the case of State v. Sheenappa Gowda reported in 2011(4) KCCR 2759, the relevant paragraph is culled out hereunder:
"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 accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 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 resonable doubt. The evidence 15 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 hat 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 X-ray 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 by them falls within the ambit of Section 324 of I.P.C. is justified".16
14. Applying the legal principles enunciated in the above case, to the case on hand the injury Nos.2 and 3 in Ex.P4 cannot be termed as grievous injury in the absence of X-ray or radiological report. Accordingly, to that extent the finding recorded by the Trial Magistrate and confirmed by the first Appellate Court cannot be countenanced in law and needs interference. The Trial Magistrate refused to grant probation on the ground that the accused has been convicted for the offence punishable under Section 326 of IPC.
Learned Trial Magistrate also places reliance on the judgment reported in 2002(3) KLJ 570 in the case of State by Koppa Police Vs. M.P.Ganesha and others to substantiate non grant of probation, since there is a factual error in convicting the accused for the offence punishable under Section 326 of IPC. Further, as could be seen from the impugned judgment in some places, the Trial Magistrate has recorded a finding that the accused is guilty of offence under Section 326 IPC and in operative portion 17 the letter six (6) has been altered and made as 324 IPC. However, learned Judge in the first Appellate Court did not notice the said error and confirmed the judgment without granting probation. When once the Trial Magistrate convicted the accused for the offence punishable under section 324 IPC, accused being the first time offender, non granting of the probation to the accused has resulted in miscarriage of justice in view of the dictum of the Hon'ble Apex Court in the case of Chandreshwar Sharma v. State of Bihar reported in (2000) 9 SCC 245 at paragraph No.3, it is held as under:
"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention 18 has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the CrPC. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the 19 appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."
ii. In the case of Gulzar v. State of M.P reported in (2007) 1 SCC 619, it has been held as under:
"(A)........
(B) Probation of Offenders Act (20 of 1958), S.4 -
Criminal P.C. (2 of 1974), S.360 - General Clauses Act (10 of 1897), S.8(1) - PROBATION OF OFFENDERS - GENERAL CLAUSES - OBJECT OF AN ACT - JUDGMENT - Benefit of probation - Scope of S. 4 of 1958 Act and S. 360 of Code - Different - Both statutes cannot co-exist at same time in same area.
Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a 20 term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results...."
15. Applying the above principles to the case on hand, this Court is of the considered opinion that the accused/Revision Petitioner is entitled for grant of probation. Accordingly, point No.1 is answered in the affirmative and point No.2 is answered partly in affirmative and pass the following:
ORDER
1. The Criminal Revision Petition is allowed-in-part.
2. While maintaining the order of conviction for the offence punishable under Section 324 of IPC, the 21 accused/revision petitioner is directed to pay fine of Rs.11,000/- (inclusive of Rs.1,000/- already imposed and paid).
3. The accused/revision petitioner shall execute a bond in a sum of Rs.25,000/- with one surety for the like-sum to the satisfaction of the trial Court which shall be in force for a period of two years for his good behaviour with default sentence of three months simple imprisonment.
4. It is made clear that if there is any violation of the bond conditions, the order of sentence passed by the trial Magistrate confirmed by the First Appellate Court would stand automatically restored.
5. The time is granted for the accused/revision petitioner to pay the balance fine amount and execute a bond till 31.12.2021 before the trial Magistrate.22
6. Office is directed to return the Trial Court Records with a copy of this order, forthwith.
Ordered accordingly.
Sd/-
JUDGE KA*