Karnataka High Court

Hemanagouda Devanagouda Patil vs The State Of Karnataka on 9 August, 2021

Author: Rajendra Badamikar

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 9TH DAY OF AUGUST, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                  CRL.R.P.NO.2170/2012

BETWEEN:

HEMANAGOUDA DEVANAGOUDA PATIL,
AGE: 45 YEARS, OCC: AGRI.,
R/O MAGADI, TQ.SHIRAHATTI,
DIST: GADAG.
                                             ...PETITIONER
(BY SRI.NAGARAJ J.APPANNANAVAR, ADV. FOR
    SRI.LAXMAN T.MANTAGANI, ADV.)

AND:

THE STATE OF KARNATAKA,
BY SHIRAHATTI POLICE,
THROUGH S.P.P., HIGH COURT OF KARNATAKA,
DHARWAD.
                                           ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C. SEEKING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 19.06.2012 PASSED
BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN
CRL.A.NO.11/2012 CONFIRMING THE JUDGMENT AND ORDER
DATED 10.04.2012 PASSED BY THE CIVIL JUDGE AND JMFC,
LAXMESHWAR IN C.C.NO.164/2011.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 03.08.2021 COMING
ON FOR ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
                                  2




                               ORDER

This criminal revision petition is filed by the

accused/revision petitioner under Section 397 r/w Section

401 of Cr.P.C. to set aside the judgment and order dated

19.06.2012 passed by the District and Sessions Judge,

Gadag in Crl.A.No.11/2012 confirming the judgment of

conviction and order of sentence dated 10.04.2012 passed

by the Civil Judge and JMFC, Laxmeshwar in

C.C.No.164/2011.

2. For the sake of convenience, the parties are

referred in the original ranks occupied by them before the

trial court.

3. The brief facts of the case are that, the

accused/revision petitioner was convicted for the offences

punishable under Sections 324, 326, 504 and 506 of IPC.

The allegations of the prosecution discloses that, on

25.07.2011 at about 12.00 p.m. on Magadi-Laxmeshwar

public road near Shibargatti within the limits of Shirahatti

Police Station, the accused picked up a quarrel with the

complainant alleging that he took away his wife Laxmavva

and assaulted him with axe and cut a nib of his right hand

index finger and when the mother of the complainant

C.W.7 intervened, she was also assaulted. It is also alleged

that both the complainant and C.W.7 have suffered injuries

and accused has also abused them in filthy language, gave

life threat to them by putting them under instant fear of

life or injuries to their limbs. In this regard, a complaint

came to be lodged and on the basis of the complaint, the

Investigating Officer has investigated the crime and

submitted the charge sheet. After submission of the charge

sheet, the learned Magistrate has taken cognizance and

furnished prosecution papers to the accused. Thereafter,

learned Magistrate has framed charges under Sections

324, 326, 504 and 506 of IPC against the accused. The

accused pleaded not guilty and claimed to be tried. The

prosecution examined 9 witnesses as P.Ws.1 to 9 and got

marked 7 documents as Exs.P1 to P7. Then the statement

of the accused under Section 313 of Cr.P.C. is recorded to

enable the accused to explain the incriminating evidence

appearing against him in the case of the prosecution. But

the accused did not choose to lead any evidence and his

case was of total denial. After hearing the arguments, the

learned Magistrate has framed following issues:

i) Whether the prosecution proves beyond all reasonable doubt that on 25-07-2011 at about 12.00 p.m. on Magadi-Laxmeshwar public road near Shibargatti, which is situated within the limits of Shirahatti police Station. Accused has picked up quarrel with the first informant Mutturaj for alleged he has takeout his wife Laxmavva and assaulted to him with axe and cut nib of his right hand indicator finger and thereby committed an offence punishable U/Sec.326 of IPC?

ii) Further, whether the prosecution proves beyond all reasonable doubt that on the same date, time and place, accused has picked up quarrel with first informant and assaulted his mother C.W.7 her right hand thumb and voluntarily caused hurt and thereby committed an offence punishable U/Sec.324 of IPC?

iii) Further, whether the prosecution

proves beyond all reasonable doubt that on the

same date, time and place, accused has picked up

quarrel with the first informant, C.W-1 and abused

in filthy language and thereby provoked them to

commit Breach of public and thereby committed an

offence punishable U/Sec.504 of IPC?

iv) Further, whether the prosecution

proves beyond all reasonable doubt that on the

same date, time and place, accused has picked up

quarrel with the first informant, CW-1 & 7 and

P.W.5 and posed life threat to them and thereby

committed an offence punishable U/Sec.506 of

IPC?

v) What order?

4. The learned Magistrate after appreciating the

evidence answered point Nos.1 and 2 in the affirmative

and point Nos.3 and 4 in the negative and convicted the

accused/revision petitioner for the offences punishable

under Sections 326 and 324 of IPC by imposing simple

imprisonment for 3 years with fine of Rs.3,000/- for the

offence punishable under Section 326 of IPC and simple

imprisonment for 1 year with fine of Rs.2,000/- for the

offence punishable under Section 324 of IPC with default

clauses. The said judgment came to be challenged before

the District and Sessions Judge, Gadag in

Crl.A.No.11/2012 and the learned Sessions Judge by

judgment dated 19.06.2012 dismissed the appeal and

confirmed the judgment of conviction and order of

sentence. Hence, the revision petitioner has approached

this court by way of revision against the concurrent

findings of both the courts below.

5. Heard the arguments of the learned counsel for

the revision petitioner and the learned HCGP for the

respondent-State. Perused the records.

6. Learned counsel for the revision petitioner

would contend that there are no independent eye-

witnesses and there are lot of contradictions in the

evidence of injured witnesses. He would further contend

that the courts below have only appreciated the evidence

of interested witnesses and failed to consider the defence

set up by the accused and also failed to consider the

opinion of the Medical Officer that, by material object, it is

not possible to cause alleged injuries. Hence, he would

contend that the prosecution has failed to bring home the

guilt of the accused and sought for acquittal of the accused

by setting aside the judgments of both the courts below.

7. Per contra, learned High Court Government

Pleader would submit that both the courts below have

appreciated the oral and documentary evidence in detail

and have also considered the defence set up by the

accused and arrived at a just decision. He would submit

that the judgment of conviction and order of sentence does

not call for any interference, as the trial court has imposed

reasonable sentence.

8. Having heard the arguments and perusing the

records, the following point would arises for my

consideration:

Whether both the courts below have erred in convicting the accused/revision petitioner for the offences punishable under

Sections 324 and 326 of IPC and the judgments of the both the courts below suffers from illegality and infirmity so as to call for any interference by this Court?

9. The complainant has set law in motion by

lodging the complaint. The complaint is at Ex.P1. The

allegations of the complaint disclosed that, on 25.07.2011

at about 12.00 p.m. on Magadi-Laxmeshwar public road

near Shibargatti, the complainant was talking with his

mother and at that time, accused came there and suddenly

assaulted the complainant by abusing in filthy language by

axe and seeing the action, his mother cried and when he

turned back and seen the attempt of assault, he put is

index finger in between to save himself and thereby his nib

of right index finger suffered grievous injury. When his

mother interfered, the accused has also abused her in

filthy language and assaulted on her right thumb. When

they cried for help, one Hanumanthappa Uppar, Suresh

Madar and father of the complainant came there and

pacified the dispute. Then the complainant was admitted to

the hospital and in this regard, he filed a complaint. The

complainant was also examined as P.W.1 and in his

examination-in-chief, he has reiterated the averments

made in the complaint. Though P.W.1 was cross examined

at length, but nothing was elicited so as to impeach his

evidence. The allegation of the complaint disclose that, he

alleged to have taken away the wife of the accused and

with this vengence he was assaulted. The case of the

accused is of simple denial. The complainant is admittedly

unable to identify the axe but non-identification of the axe

by itself is not fatal to the case of the prosecution. Further,

P.W.6-Devappa is the father of the complainant and he has

also supported the case of the prosecution. P.W.8-Yallavva

is another injured and mother of the complainant and she

has also supported the case of the prosecution. Though all

these witnesses were cross-examined at length, but

nothing was elicited in the cross-examination of these

witnesses so as to impeach their evidence. Simple formal

denial was made and mere denial does not amount to

admission. No reasons are forthcoming to discard the

evidence of injured witnesses. No doubt, both panchas

P.Ws.2 and 3 and independent eye-witnesses P.Ws.4 and 5

have turned hostile. However, the injured have deposed

overt act of accused and they cannot be termed as

interested witnesses, as their evidence cannot be

discarded in a casual way as they are the victims. Further,

it is also important to note here that, if at all the

complainant intended to falsely prosecute the accused, he

would have stated that M.O.1 is the axe, but he did not

say so, which clearly establish that he is natural witness.

Apart from that, the trial court has convicted the accused

for the offence punishable under Sections 326 and 324 of

IPC alone and acquitted him for the offence punishable

under Sections 504 and 506 of IPC. The acquittal order is

not challenged by the State. The learned Magistrate has

appreciated the oral and documentary evidence in detail

and he noticed that due to assault by axe nib of right index

finger of the complainant was cut and right thumb of

C.W.7 was injured. This is supported by the medical

evidence and there is no proper explanation from the

accused/revision petitioner in this regard. The doctor who

treated the injured was examined as P.W.7 and injury

certificates are produced as Exs.P5 and P6. The learned

Magistrate after appreciating the oral and documentary

evidence arrived at a just decision holding that charges

leveled against the accused under Sections 326 and 324 of

IPC are established.

10. The learned Sessions Judge has re-appreciated

the oral and documentary evidence and has come to the

conclusion that the charges are proved against the

accused/revision petitioner. Hence, in this revision, again

question of re-appreciating the evidence does not arise at

all. However, even on re-appreciation of evidence, it is

evident that there is material placed in the form of

evidence of P.Ws.1, 6 and 8, which supports the case of

the prosecution and no contrary view is forthcoming.

Under these circumstances, the judgment of conviction

cannot be said to be illegal and suffers from any perversity

so as to call for any interference in this regard.

11. The learned Magistrate has imposed sentence

of simple imprisonment of three years with fine of

Rs.3,000/- for the offence punishable under Section 326 of

IPC and simple imprisonment for one year with fine of

Rs.2,000/- for the offence punishable under Section 324 of

IPC. The offence under Section 324 of IPC is punishable

with imprisonment for a period of three years or fine or

both and the offence under Section 326 of IPC is

punishable with imprisonment for life or imprisonment for

a period of ten years and fine. In the instant case, the

evidence discloses that the complainant has suffered

grievous injuries to his right index finger. The allegation

also discloses that the dispute was in respect of taking

away the wife of the accused by the complainant.

12. The learned counsel for the revision petitioner

would submit that, considering the facts and circumstances

and nature of injuries, lenient view may be taken by

imposing only sentence of fine by modifying the sentence

of imprisonment. However, for the offence punishable

under Section 326 of IPC, the sentence of imprisonment is

mandatory and if it is less than 10 years, then fine is also

mandatory. The complainant has already suffered

sufficient pain, as he has suffered grievous injury to his

right index finger. Further, the trial court has considered

that this is not a fit case to invoke provisions of Probation

of Offenders Act, 1958. However, the imposition of

sentence of simple imprisonment for three years and one

year appears to be very harsh. In the given circumstances,

if the sentence of imprisonment is reduced by increasing

the fine, in my considered opinion, it will meet the ends of

justice. The intention of the court is not only to punish, but

it should be also a reformative. Further, mere

imprisonment alone shall not be a ground and the court

shall also consider other antecedents and criminal

background while imposing sentence. Under these

circumstances, in my considered opinion, for the offence

punishable under Section 326 of IPC, simple imprisonment

for one month with fine of Rs.10,000/- and for the offence

punishable under Section 324 of IPC, fine of Rs.5,000/- will

meet the ends of justice. Accordingly, I answer the point

under consideration partly in the affirmative, so far as it

relates to order of sentence. Hence, I proceed to pass the

following:

ORDER

The criminal revision petition is partly allowed.

The judgment of conviction dated 19.06.2012 passed

by the District and Sessions Judge, Gadag in

Crl.A.No.11/2012 confirming the judgment of

conviction and order of sentence dated 10.04.2012

passed by the Civil Judge and JMFC, Laxmeshwar in

C.C.No.164/2011 are confirmed, so far as it relates

to conviction of judgment.

However, the sentence of imprisonment of

three years and one year for the offence punishable

under Sections 326 and 324 of IPC respectively is

modified. The accused/revision petitioner is directed

to undergo simple imprisonment for a period of one

month and to pay a fine of Rs.10,000/-, in default, to

undergo simple imprisonment for a period of one

month for the offence punishable under Section 326

of IPC; and to pay a fine of Rs.5,000/- and in

default, to undergo simple imprisonment for a period

of one month for the offence punishable under

Section 324 of IPC. The fine shall be deposited

before trial court within 30 days.