Karnataka High Court
The State vs Siddalingappa on 10 July, 2023
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NC: 2023:KHC:23679
CRL.RP No. 196 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 196 OF 2016
BETWEEN:
THE STATE
REPRESENTED BY
NANJANGUD RURAL POLICE STATION
MYSURU - 571 301.
REP BY S.P.P
HIGH COURT BENGALURU
...PETITIONER
(BY SRI. RAHUL RAI K, HCGP)
Digitally
AND:
signed by N
UMA
Location: 1. SIDDALINGAPPA
HIGH
COURT OF SON OF THOTADAPPA
KARNATAKA
AGED ABOUT 42 YEARS
2. SHIVANANJAPPA
SON OF LATE VEERANNA
AGED ABOUT 45 YEARS
3. RAJASHEKAR
SON OF THOTADAPPA
AGED ABOUT 24 YEARS
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NC: 2023:KHC:23679
CRL.RP No. 196 of 2016
4. THOTADAPPA
SON OF JAVANAPPA
AGED ABOUT 24 YEARS
5. SMT. HEMA
WIFE OF SIDDALINGAPPA
AGED ABOUT 25 YEARS
6. SMT. PUTTATHAYAMMA
WIFE OF SHIVALINGAPPA
AGED ABOUT 30 YEARS
ALL ARE RESIDENTS OF
DEBUR VILLAGE
NANJANGUD TALUK - 571 301.
...RESPONDENTS
(BY MS. LATHASHREE D L, ADVOCATE FOR
SRI. D C DEEPAK, ADVOCATE FOR R1 TO R6)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.09.2015
PASSED IN CRL.A.NO.23/2014 PASSED BY THE 5TH
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU AND
SET ASIDE AND MODIFY THE JUDGMENT AND ORDER DATED
28.08.2013 PASSED IN C.C.NO.753/2008 AND ETC.,
THIS CRIMINAL REVISION PETITION, COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:23679
CRL.RP No. 196 of 2016
ORDER
1. This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 28.08.2013 in C.C.No.753/2008 on the file of the Court of the Principal Civil Judge and J.M.F.C., at Nanjangud and its confirmation judgment and order dated 28.09.2015 in Crl.A.No.23/2014 on the file of the Court of the V Additional District and Sessions Judge, Mysuru, seeking to set aside the concurrent findings recorded by the Courts below.
2. The petitioners are the accused before the Trial Court and respondents before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on 8.8.2008, at about 10.30 p.m., in front of the house of CW.1 Parashivamurthy at Debur Village, the respondents with a common intention to commit the offence, holding deadly weapons like choppers and clubs and committed rioting against Javanappa and Parashivamurthy. The overt act of these respondents / accused is explained in the complaint. It is further stated that, due to the assault in the said quarrel, -4- NC: 2023:KHC:23679 CRL.RP No. 196 of 2016 Parashivamurthy sustained injuries and was taken to hospital. The Doctor treated him and submitted his report as per Exs.P6 and P7. According to PW.7 who treated PW.1, the injuries are grievous in nature. A case came to be registered against the respondents. The jurisdictional police have registered a case for the offence punishable under Sections 143, 147, 148, 341, 326, 324, 323, 114, 506 read with Section 149 of Indian penal Code (for short "IPC") against the accused, on investigation, a charge sheet was laid by the jurisdictional police for the offences stated supra.
4. To prove the case of the prosecution, the prosecution examined, in all, 11 witnesses namely PWs.1 to 11 and got marked Exhibits P1 to P9 and identified MOs.1 and 2. The Trial Court after appreciating the oral and documentary evidence on record, convicted the respondent Nos.1 to 3 and 5 for the offence punishable under Section 324 read with Section 149 of IPC. Respondent No.4 was convicted for the offence punishable under Section 341 read with Section 149 of IPC. Respondent No.6 was acquitted for the offences punishable under Sections 143, 147, 148, 323, 114 read with Section 149 of IPC. The Trial Court acquitted the accused for the -5- NC: 2023:KHC:23679 CRL.RP No. 196 of 2016 offence punishable under Section 326 read with Section 149 of IPC. Consequently, respondent Nos.1 to 3 and 5 / accused Nos.1 to 3 and 5 were sentenced to pay fine of Rs.10,000/- each, in default, to undergo three years simple imprisonment for the offence punishable under Section 324 read with Section 149 of IPC. The respondent No.4 / accused No.4 was sentenced to pay fine of Rs.500/-, in default to undergo one month simple imprisonment for the offence punishable under Section 341 read with Section 149 of IPC. Being aggrieved by the same, the State has preferred an appeal against the acquittal of the respondents for the offence under Section 326 of IPC and also inadequacy of the sentence for the offence under Section 324 of IPC. Considering the submissions of the State and also the respondents, the Appellate Court dismissed the appeal. Being aggrieved by the same, the State / petitioner has preferred this revision petition.
5. Heard Shri Rahul Rai K, learned High Court Government Pleader for the petitioner / State and Ms Lathashree D L, learned counsel appearing on behalf of Shri D.C.Deepak, learned counsel for the respondents. -6-
NC: 2023:KHC:23679 CRL.RP No. 196 of 2016
6. It is the submission of learned High Court Government Pleader (for short "HCGP") for the petitioner / State that the judgment of conviction and order of sentence passed by the Trial Court and its confirmation order passed by the Appellate Court require to be set aside as the concurrent findings are perverse, illegal and opposed to facts and law.
7. It is the submission of learned HCGP that, the Appellate Court ignored the evidence and failed to appreciate the law properly and passed the impugned judgment which requires to be set aside. It is his further submission that, even though the evidence of eyewitness and the evidence of the Doctor clearly supported the case of the prosecution with regard to the injury which PW.1 had sustained, the Appellate Court and the Trial Court failed to consider the nature of the injury and proceeded to acquit the accused for the offence under Section 326 of IPC, which is erroneous and requires to be set aside.
8. It is further submitted by learned HCGP that, the sentence imposed under Section 324 of IPC is not proper and the Courts below ought not to have imposed fine only -7- NC: 2023:KHC:23679 CRL.RP No. 196 of 2016 considering the seriousness and weapons used by the petitioners, some deterrent measures should have been taken by imposing imprisonment also. Making such submissions, learned HCGP for the petitioner / State seeks to allow the revision petition and set aside the concurrent findings recorded by both the Courts below.
9. Per contra, learned counsel Ms.Lathashree D.L. appearing on behalf of Shri D.C.Deepak, learned counsel for the respondent Nos.1 to 6 / accused, submits that PW.7 - Doctor who stated to have treated PW.1, in his evidence, has deposed that the injuries which PW.1 had sustained are grievous in nature, however, has not produced any x-ray to show that PW.1 sustained fracture. In the absence of production of x-ray, it cannot be said that PW.1 sustained fracture. Hence, the Courts below rightly acquitted the accused Nos.1 to 6 for the offence under Section 326 of IPC and convicted the accused Nos.1 to 3 and 5 for the offence under Section 324 of IPC. The respondents herein have paid the fine amount imposed by the Courts below. Having submitted thus, learned counsel for the respondents prays to dismiss the petition. -8-
NC: 2023:KHC:23679 CRL.RP No. 196 of 2016
10. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the judgments of the Courts below, the Appellate Court and the Trial Court consistently held that, in the absence of production of x-ray, the conviction in respect of the offence under Section 326 of IPC cannot be sustained. Even on perusal of the entire records and also evidence of PW.7, no such x-ray is produced to substantiate the fracture or grievous hurt.
11. This Court consistently held that, to prove the fracture injury, x-ray must be produced by the prosecution to substantiate the injuries which are of such nature as stated supra. Prima facie this Court is satisfied with the findings given by the Courts below in recording the acquittal in respect of the offence under Section 326 of IPC.
12. As regards the conviction in respect of offence under Section 324 of IPC is concerned, except PW.1, the so- called eyewitnesses have turned hostile and not supported the case of the prosecution and also considering that the complainant and the respondents are living in the same locality, sentence of fine imposed by the Courts below appears -9- NC: 2023:KHC:23679 CRL.RP No. 196 of 2016 to be proper and interference with the said findings may not be warranted.
13. Hence, I proceed to pass the following:-
ORDER
i) Criminal Revision Petition stands dismissed.
ii) The judgment of conviction and order of sentence dated 28.08.2013 in C.C.No.753/2008 on the file of the Court of the Principal Civil Judge and J.M.F.C., at Nanjangud and its confirmation judgment and order dated 28.09.2015 in Crl.A.No.23/2014 on the file of the Court of the V Additional District and Sessions Judge, Mysuru, are confirmed.
iii) Since the petitioner has already paid the fine amount imposed by the Trial Court for the offence punishable under section 324 of IPC, securing the presence of the accused is not required.
Sd/-
JUDGE BSS List No.: 1 Sl No.: 41