Karnataka High Court
Panduranagaiah vs State Of Karnataka on 1 September, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL.RP NO.490 OF 2015
BETWEEN:
1. PANDURANAGAIAH
S/O HANUMANTHAIAH
AGED ABOUT 57 YEARS
R/AT VANIGERE VILLAGE
KOTHAGERE HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT.
2. RAMESH
S/O PANDURANGAIAH
AGED ABOUT 29 YEARS
R/AT VANIGERE VILLAGE
KOTHAGERE HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT.
3. REVAMMA
W/O LATE CHIKKARANGAIAH
AGED ABOUT 58 YEARS
R/AT VANIGERE VILLAGE
KOTHAGERE HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT.
4. LINGARAJAMMA
D/O LATE CHIKKARANGAIAH
AGED ABOUT 27 YEARS
R/AT VANIGERE VILLAGE
2
KOTHAGERE HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT.
... PETITIONERS
(BY SRI:VIJAYKUMAR PRAKASH, ADV)
AND:
STATE OF KARNATAKA
BY KUNIGAL POLICE
NOW REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-560 001.
... RESPONDENT
(BY SMT:NAMITHA MAHESH B G, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE PASSED BY THE SR.CIVIL
JUDGE AND JMFC AT KUNIGAL, IN C.C.NO.1147/2010 DATED
28.12.2012, FOR THE OFFENCE P/U/S 323,324,326,506 R/W
34 OF IPC AND CONFIRMED BY THE FTC, TUMKUR IN
CRL.A.NO.2/2013 DATED 11.3.2015.
THIS CRL.RP COMING ON FOR FINAL HEARING THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
This revision petition is directed against the concurrent judgments passed by the Courts below convicting the petitioners-accused Nos.1 to 4 for the offences punishable under Sections 326, 323, 324 and 506 read with Section 34 of Indian Penal Code, 1860 (for short 'IPC'). The petitioners- 3 accused Nos.1 to 4 are sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- for the offence punishable under Section 326 read with 34 of IPC and simple imprisonment for a period of six months each for the offence punishable under Sections 323, 324 and 506 read with 34 of IPC.
2. The learned Counsel for the petitioners at the outset submitted that the challenge in this revision petition is confined only with regard to the conviction of the petitioners- accused Nos.1 to 4 for the offence punishable under Section 326 read with 34 of IPC and with regard to the sentence awarded by the Trial Court for the offence punishable under Sections 323, 324 and 506 of IPC read with 34 of IPC.
3. The learned Counsel submitted that according to the prosecution, PWs.1 and 2 were assaulted by the petitioners-accused Nos.1 to 4 with club and as a result, they sustained grievous injuries which led to the prosecution of the petitioners. It is the submission of learned Counsel that the evidence produced before the Court, namely, the wound certificates relating to the injured PWs.1 and 2 indicate that 4 PW2 had sustained only a simple injury, namely, the tenderness over the right forearm and PW1 had sustained swelling over the right shoulder and multiple cut wounds near the scalp with bleed. It is the submission of the learned Counsel that the doctor who examined PW1, namely, PW7 has certified that the multiple cut injuries suffered by PW1 was grievous in nature. PW7 has unequivocally stated before the Court that the injured PWs.1 and 2 were not treated as inpatient in Kunigal Government Hospital. This witness has stated that he had referred the injured for further treatment. But there is absolutely no material whatsoever to show that either PWs.1 or 2 had taken any treatment for the alleged injuries either as inpatient or as an outpatient in any of the hospital. Under the said circumstances, merely on the basis of the opinion given by PW7, the Courts below ought not to have held that the injury suffered by PW1 was grievous in nature.
4. Learned Counsel has referred to Section 320 of IPC and the decision of the Hon'ble Supreme Court in the case of Mathai Vs State of Kerala [(2005) 3 SCC 260] to contend that the injuries suffered by PWs.1 or 2 do not fall 5 within any of the clauses of Section 320 of IPC. Under the said circumstances, the Courts below have committed patent error in convicting the accused for the offence under Section 326 of IPC. Therefore, to that extent, the impugned order calls for interference by this Court in exercise of revisional jurisdiction under Section 397 of Cr.P.C.
5. With regard to the sentence imposed by the Courts below for the offence under Sections 323, 324, 506 of IPC is concerned, the learned Counsel submits that both the Courts have failed to note that the alleged incident had taken place over a trivial issue. The Courts below failed to note that the accused as well as PWs.1 and 2 are close relatives. It is not in dispute that the accused himself had tethered the sheep across the road which entangled the scooter driven by PW1 which led to the hot exchange of words between them. Under such circumstances, the punishment imposed by the Courts below is far excessive and does not commensurate with the offence alleged against the petitioners-accused Nos.1 to 4.
6
6. The learned High Court Government Pleader, however has argued in support of the impugned judgment and submitted that the Courts below have taken into consideration the overall evidence of the injured witnesses which is duly corroborated by the testimony of the eye witnesses, namely, PW3 and the medical evidence with regard to the nature of the injuries suffered by PWs.1 and 2 and therefore, there is absolutely no reason to interfere with the impugned judgment.
7. On going through the records and on examining the statement of PWs.1 and 2 and the injury certificates, namely, Exs.P7 and 8 produced by the prosecution, I find that the conviction recorded by the Courts below against the petitioners-accused Nos.1 to 4 for the offence under Section 326 read with 34 of IPC is wholly unjustified and cannot be sustained. As rightly submitted by the learned Counsel for the petitioners in order to determine whether the injuries sustained by the PW1, namely, the cut wound over the scalp is grievous or simple in nature, necessarily reference has to be made to Section 320 of IPC, which defines the 'grievous hurt' as under:
7
"Section 320 - Grievous hurt - The following kinds of hurt only are designated as 'grievous':
First - Emasculation;
Secondly - Permanent privation of the sight of either eye;
Thirdly - Permanent privation of the hearing of either ear;
Fourthly - Privation of any member or joint; Fifthly - Destruction or permanent impairing of the powers of any member or joint;
Sixthly - Permanent disfiguration of the head or face;
Seventhly - Fracture or dislocation of a bone or tooth; and Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
8. The Hon'ble Supreme Court in Mathai's case stated supra has laid down that before a conviction for the sentence of grievous hurt could be passed, one of the injuries 8 defined in Section 320 of IPC must be strictly proved, and the eighth clause is no exception to the general rule of law that a penal statute must be construed strictly. In the instant case, it is not the case of prosecution that either PWs.1 or 2 have suffered any of the injuries noted in Clauses 1 to 7 of Section 320 of IPC. It is also not the case of prosecution that the injuries suffered by PWs.1 and 2 were of the nature which endangered the life or which caused the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow their ordinary pursuits. On the other hand, the evidence brought on record as discussed above would clearly indicate that neither PW1 nor PW2 have been treated as inpatient for the injuries shown in Exs.P7 and 8 even on the date of incident. There is absolutely no material to show that PWs.1 and 2 have suffered any grievous injuries within the meaning of Section 320 of IPC. The doctor - PW7 who examined PWs.1 and 2 has stated that the injuries sustained by PWs.1 and 2 could be caused by coming in contact with agricultural implements. Under the said circumstances, merely on the basis of the opinion given by PW7 which admittedly do not fall within the ambit of Section 320 of IPC, 9 the Courts below ought not to have recorded the conviction against the petitioners-accused Nos.1 to 4 under Section 326 of IPC. The circumstances proved in evidence at the most would make out the offence under Section 323 of IPC. Hence, the conviction of the petitioners-accused Nos.1 to 4 for the offence punishable under Section 326 of IPC is liable to be set aside.
9. The conviction recorded under Sections 323, 324 and 506 of IPC are not challenged by the petitioners-accused Nos.1 to 4. However, with regard to the imposition of punishment for the said offences is concerned, having regard to the circumstances in which the incident has taken place and the nature of injuries suffered by PWs.1 and 2, I am of the view that it would suffice the interest of justice, if the petitioners-accused Nos.1 to 4 are directed to pay a substantial compensation by way of fine. Hence, taking into consideration all the above facts and circumstances, I proceed to pass the following:
ORDER
a) The Criminal Revision Petition is partly allowed. 10
b) The conviction of the petitioners-accused Nos.1 to 4 for the offence punishable under Section 326 read with 34 of IPC is set aside.
c) The conviction of the petitioners-accused Nos.1 to 4 for the offence under Sections 323, 324 and 506 of IPC is maintained.
d) In modification of the sentence awarded by the Courts below for the said offences, the petitioners-accused Nos.1 to 4 are sentenced to pay a fine of Rs.1,000/- each for each of the offences under Sections 323, 324 and 506 of IPC amounting in all Rs.12,000/-.
e) The said fine amount of Rs.12,000/- shall be made over to PWs.1 and 2 by way of compensation.
f) The substantive sentence of imprisonment awarded by the Courts below for the offences under Sections 326, 323, 324 and 506 of IPC is set aside.
g) The fine amount shall be deposited within four weeks before the Trial Court where after, the Trial 11 Court shall make over the same to PWs.1 and 2 by way of compensation.
Sd/-
JUDGE *bgn/-