Karnataka High Court
State By Police Sub Inspector vs Babu @ Jurani on 12 October, 2023
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NC: 2023:KHC:37395
CRL.A No. 1069 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1069 OF 2015 (A)
BETWEEN:
STATE BY POLICE SUB INSPECTOR
TUMAKURU RURAL POLICE - 572 101.
...APPELLANT
Digitally
signed by N (BY SRI. RAHUL RAI K, ADVOCATE)
UMA
Location: AND:
HIGH
COURT OF 1. BABU @ JURANI
KARNATAKA S/O FERNANDEZ
AGE 30 YEARS
OCC LORRY DRIVER
R/O NEAR AUTO RICKSHAW STAND
UPPARAHALLI, TUMKUR - 572 101.
2. NAGESH
S/O LATE ANJINAPPA
AGE 40 YEARS
OCC LORRY OWNER
R/O 18TH CROSS,
JAYAPUR, TUMKUR TALUK - 572 101.
...RESPONDENTS
(BY SRI. JAVEED S, AMICUS CURIAE FOR R1;
SRI. HARISH KUMAR H C FOR R2, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THAT PART OF
THE JUDGMENT AND ORDER DATED 21.01.2015, PASSED BY
THE PRINCIPAL DISTRICT AND SESSIONS JUDEG, TUMAKURU
IN S.C.NO.156/2013 AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:37395
CRL.A No. 1069 of 2015
JUDGMENT
1. This appeal is filed by the State being aggrieved by the judgment and order of acquittal dated 21.01.2015 passed in S.C No.156/2013 on the file of the Principal District and Sessions Judge, Tumakuru.
2. The rank of the parties in the Trial Court henceforth will be considered accordingly for convenience.
Brief facts:
3. The case of the prosecution is that on 19.06.2011, the KSRTC bus bearing its registration No.KA-06-F-733 was proceeding towards Hubli from Bengaluru side, at about 2.00 p.m., when the bus has reached near old NH-4 road, the lorry bearing its registration No.KA-13-9988 came from the opposite direction and stopped across the bus. When it was questioned by the driver of the KSRTC bus, the lorry driver got down from his lorry and started abusing in a filthy language. In the meantime, another person who was in the lorry came and assaulted with the hands and club on the head of the driver of the KSRTC, resultantly, the driver of the KSRTC bus sustained injuries on head. In the meantime, PW.3 and some other -3- NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 passengers have intervened and pacified the matter. After the incident, the complainant was taken to the Government Hospital, Tumakuru in an ambulance and while taking treatment, the A.S.I of the jurisdictional police visited the hospital and recorded the statement of the complainant. Following the statement of the complainant, FIR was registered in Crime No.196/2011 for the offences under Sections 341, 504, 332 r/w 34 of IPC. After conducting the investigation, the jurisdictional police have submitted the charge sheet for the offence under Sections 341, 504, 323, 333 r/w 34 of IPC.
4. To prove the case of the prosecution, the prosecution examined 6 witnesses as PWs.1 to 6 and got marked 5 documents as Exs.P1 to P5 and also identified material object as M.O.1 - club. The Trial Court after appreciating the oral and documentary evidence on record, convicted accused No.1 for the offence punishable under Section 324 and accused No.2 for the offence punishable under Section 323 of IPC, further, both the accused Nos.1 and 2 were convicted for the offence punishable under Sections 504 r/w 34 of IPC . However, recorded the acquittal for the offences -4- NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 punishable under Sections 341 and 333 r/w 34 of IPC. Being aggrieved by the same, the State has preferred this appeal.
5. Heard Sri.Rahul Rai.K, learned High Court Government Pleader for the appellant-State and Sri.Javeed.S, learned Amicus Curiae for the respondent No.1.
6. It is the submission of the learned High Court Government Pleader for the appellant-State that the Trial Court ignored in considering the evidence of PWs.2 and 3 and recorded the acquittal in respect of offences under Sections 341 and 333 of IPC is erroneous and the same is required to be set aside.
7. It is further submitted that the evidence of PWs.2 and 3 are the material witnesses to the incident. It is an admitted fact that PW.2 was working as driver of KSRTC bus bearing No.KA.06.F.733. He was a Government servant. In his evidence, he has stated that when he was proceeding towards Hubli in KSRTC bus, a lorry took turn towards weigh bridge, therefore, he took the bus towards his right. In the meantime, another lorry of which the accused was driving came in a opposite direction obstructed the bus and started quarreling -5- NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 with PW.2. PW.3 who was working as conductor of the said bus has supported the case of the prosecution. In spite of lengthy cross-examination, both PWs.1 and 2 have supported the case of the prosecution in respect of obstructing the public servant in discharging their duty and also wrongful restraint.
8. It is further submitted that evidence of PW.1 and wound certificate Ex.P1 clearly indicate that PW.2 sustained grievous injury. In spite of grievous injury having been sustained, the Trial Court ignored in considering the said aspect and recorded the acquittal in respect of offence under section 333 of IPC which requires re-consideration.
9. It is further submitted that even though the prosecution has proved the case in respect of offence under Section 341 of IPC on examining PWs.2 and 3, their evidence has not been considered in respect of wrongful restraint which is perverse and the said order of acquittal in respect of Section 341 of IPC has to be set aside. Making such submissions, the learned HCGP prays to allow the appeal.
10. Per contra, the learned Amicus Curiae for the respondent No.1 vehemently justified the judgment and order of acquittal passed in respect of the offences under Sections -6- NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 341 and 333 of IPC and submitted that even though PW.2 working as a driver of the said bus, he has not produced the wound certificate regarding the loss of his tooth. Therefore, the Trial Court rightly not recorded the conviction for the offence punishable under Section 333 of IPC which is appropriate.
11. It is further submitted that as per Section 333 of IPC is concerned, none of the witnesses have deposed that the injured was obstructed by the accused in discharging the official duty. Therefore, acquittal of the accused for the offence punishable under Section 333 of IPC is justified. As regards for the offence punishable under Section 333 of IPC is concerned, the ingredients of Section 341 of IPC has not been proved by the prosecution. The Trial Court rightly appreciated the evidence both oral and documentary and recorded the acquittal which does not call for interference. Having submitted thus, the learned counsel for respondent prays to dismiss the appeal.
12. After considering the rival submissions of the respective counsel for the respective parties, now it is relevant to refer to the evidence of PWs.1, 2 and 3.
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NC: 2023:KHC:37395 CRL.A No. 1069 of 2015
13. PW.1-Dr.Nagapushpa.S who treated PW.2 and issued wound certificate and the same is marked as per Ex.P1. The wound certificate indicates the following injuries:
"1) Swelling over right parietal region and tenderness 3 * 3 cms.
2) Tenderness over nose and bleeding from nose - psimple in nature.
3) Swelling of upper lip - Dentist opinion - as mild dislocation - suggesting - non-liability of tooth -
Grievous Injury."
PW.1 opined that injury Nos.1 and 2 are simple in nature. However, as per the opinion of the dentist, mild dislocation and non-availability of tooth is held to be grievous in nature.
14. Now it is relevant to refer to the provision under Section 320 of IPC which read thus:
"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 -8- NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 the powers of any member or joint.
(Sixthly) -- Permanent disfiguration of the head or face.
(Seventhly) --Fracture or dislocation of a bone or tooth.
(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."
15. The definition for the above said offence, seventhly indicates the fracture or dislocation of a bone or tooth. The evidence of PWs.1 and 2 read conjointly, it indicates that there is a slight dislocation of the tooth noticed by the dentist at the time of conducting the examination. Dislocation of tooth which amounts to grievous injury. To constitute an offence under Section 333 of IPC, there are two ingredients which are required to be fulfilled, they are:
a) A person must have sustained grievous injury.
b) The person who sustained grievous injury must be a public servant and he was obstructed from discharging his official duty.-9-
NC: 2023:KHC:37395 CRL.A No. 1069 of 2015
16. In the present case, PW.2 admittedly he was working as public servant and he was proceeding in the KSRTC bus as a driver towards Hubli. By the time, the accused have obstructed and started quarreling with PW.2 and did not allow PW.2 to discharge his official duty. On reading of the evidence of PW.1 along with Ex.P1 the wound certificate, the injury No.3 has been notified as grievous in nature. When there is an expert opinion in respect of the injury, opinion of the Court in respect of the said wound which is contrary to the expert opinion, cannot be sustained. The Trial Court ignored in considering the evidence of PWs.1, 2 and 3 and also Ex.P1 document in respect of the offences under Section 333 of IPC which is required to be set aside. Hence, I am of the considered opinion that the accused No.1 is to be convicted for the offence under Section 333 of IPC.
17. Similarly, on considering the evidence of PWs.2 and 3, the accused Nos.1 and 2 are to be convicted for the offence under Section 341 of IPC for the reason that both the accused have obstructed and restrained the movement of PW.2 and other passengers who were in the bus though they are entitled to move lawfully. It is needless to say that even though these
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NC: 2023:KHC:37395 CRL.A No. 1069 of 2015 two witnesses have been subjected to cross-examination, nothing has been elicited to discredit their trustworthiness. Usually, the evidence of injured witness cannot be slightly brushed aside. Their evidence assumes greater significance for the reason that they should have sustained injuries in the said incident.
18. In the light of the observation made above, I proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The order of acquittal in respect of offence under Sections 341 and 333 of IPC is set aside.
(iii) The matter is remitted to the Trial Court to award the sentence after securing the presence of accused Nos.1 and 2.
Sd/-
JUDGE UN List No.: 1 Sl No.: 45