Adishesha vs State Of Karnataka
2021 Latest Caselaw 5435 Kant

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 04TH DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.174/2017

BETWEEN:

1.    ADISHESHA,
      S/O CHOWDEGOWDA,
      AGED ABOUT 46 YEARS,

2.    KRISHNEGOWDA,
      S/O CHIKKACHANNAIAH,
      AGED ABOUT 41 YEARS,

3.    RAJENDRA,
      S/O SHIVANNA,
      AGED ABOUT 48 YEARS,

4.    MARIGOWDA,
      S/O LATE SRIDHARA,
      AGED ABOUT 31 YEARS,

5.    PRABHAKAR,
      S/O DEVEGOWDA,
      AGED ABOUT 31 YEARS,

6.    MANJUNATHA,
      S/O SHANKARANNA,
      AGED ABOUT 35 YEARS,

      ALL ARE R/AT KUDLUKUPPE VILLAGE,
      K.SHETTAHALLI HOBLI,
                             2

       SRIRANGAPATTANA TALUK,
       MANDYA DISTRICT - 571 401.
                                   ... PETITIONERS
(BY SRI.G.B.SHARATH GOWDA, ADVOCATE)

AND:

STATE OF KARNATAKA,
BY SRIRANGAPATTANA POLICE STATION,
REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA - 560 001.
                                          ...RESPONDENT
(BY SRI.VINAYAKA V.S., HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT DATED 23.12.2014 RENDERED
IN C.C.NO.28/2011 ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND J.M.F.C., SRIRANGAPATTANA.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri. G.B. Sharath Gowda, learned counsel for

the revision petitioners and Sri. Vinayaka V.S., learned

HCGP for the respondent-State and perused the records.

2. At the time of hearing, Sri. Sharath Gowda,

learned counsel for the revision petitioners has filed a

memo. Memo reads as under:

"The undersigned counsel for the petitioner submit that the petitioners restrict the above petition with respect to the judgment dated 05.01.2017 passed in Crl.A.No.5008/2015. This memo may be taken on record to serve the justice and equity."

3. In view of the memo, the present revision

petitioners are restricted to the challenge made to the

order passed by the First Appellate Court in

Crl.A.No.5008/2015 whereby the order passed by the Trial

Magistrate in C.C.No.28/2011 is modified and the accused

persons are directed to undergo 2 years of simple

imprisonment for the offence punishable under Section 326

read with Section 149 of IPC against six months simple

imprisonment ordered by the Trial Judge.

4. Brief facts of the case are as under:

Accused persons stood trial for the offences

punishable under Sections 143, 147, 148, 341, 323, 324,

326, 427, 504 and 506 r/w Section 149 of IPC. In

C.C.No.28/2011, the charge sheet material contains that

on 14.05.2010 at 7.30 p.m., in the public road, near the

house of Ramegowda, situated at Higher Primary School,

Kudlukupee village, the accused persons formed unlawful

assembly by restraining CW.1 Mohan Kumar, CW.2

Nagaraju and CW.3- K.N. Sundara who were proceeding

on their motorcycles and also abused them in filthy

language. Mohan Kumar and Nagaraj were rescued from

the clutches of the accused persons and thereafter, the

complaint came to be registered and the police

investigated the matter for the aforesaid offences and laid

charge sheet.

6. The presence of the accused were secured and

charge was framed. Since accused persons pleaded not

guilty, the trial was held. In order to prove the case of the

prosecution, the prosecution in all examined twelve

witnesses as PWs.1 to 12 and has relied on eight

documents, which were exhibited and marked as Exs.P1 to

P8 and MOs.1 to 7 respectively. Thereafter, the accused

persons statement were recorded as contemplated under

Section 313 of Cr.P.C., wherein all the incriminating

circumstances were denied by them. Accused persons did

not choose to lead any evidence on their behalf nor placed

their version about the incident nor adduced any defence

evidence as contemplated under Section 313(5) of Cr.P.C..

Thereafter, learned trial Magistrate heard the parties in

detail and after noting the oral testimony of the injured

eye-witnesses coupled with the medical evidence on

record, by order dated 23.12.2014, convicted the accused

persons and sentenced as under:

" ORDER

Accused No.1 to 6 shall pay a fine of Rs.250/- each for the offence punishable u/sec. 143 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for two months for the offences punishable under section 147 r/w sec. 149 of IPC.

Accused No.1 to 6 shall pay a fine of Rs.200/- each for the offence punishable under section 341 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for one month for the offence punishable under section 323 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for three months for the offence punishable under section 324 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for six months and shall pay a fine of Rs.400/- each for the offence punishable under Section 326 r/w sec. 149 of IPC. In default of payment of fine they shall undergo S.I. for one month.

Accused No.1 to 6 shall undergo S.I. for two months for the offence punishable under section 427 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for two months for the offence punishable under sections 504 r/w sec. 149 of IPC.

Accused No.1 to 6 shall undergo S.I. for two months for the offence punishable under section 506 r/w sec. 149 of IPC.

Bail bonds of accused No.1 to 6 stand hereby cancelled.

     The      above   sentences    shall     run
concurrently.

MO.1- one stone, MO.2-three clubs, MO.4- fibre piece of Fiero motor cycle are being worthless hence, ordered to be destroyed, MO.3- one iron pipe being worth property, hence ordered to be confiscated to the state. Further, interim release of MO.6- Fiero motor cycle bearing No.KA-09-Y-6292 in favour of Prakasha and MO.7- Hero honda motor cycle bearing KA-11-V-1437 in favour of Mahesha are hereby confirmed subject to expiry of the appeal period.

Issue conviction warrant accordingly.

Issue free copy of the judgment to the counsel for the accused persons."

Being aggrieved by the said order, all the accused persons

have preferred an appeal before the Addl. District &

Sessions Judge, Mandya (Sitting at Srirangapatna) in

Crl.A. No.5002/2015. So also the State has preferred an

appeal in Crl.A.No.5008/2015 seeking enhancement of the

sentence for the offence punishable under Section 326 of

IPC.

5. Learned District Judge in the First Appellate

Court after hearing the parties in detail allowed the appeal

filed by the State and passed the order of sentence of two

years of imprisonment for the offence punishable under

Section 326 read with Section 149 of IPC and maintained

the fine amount ordered by the Trial Magistrate with

default sentence.

6. In the very same judgment, the challenge

made to the order of conviction passed by the Trial

Magistrate was confirmed by the First Appellate Court

rejecting the appeal filed by the revision petitioner.

6. Challenging the common orders passed by the

Courts below, the accused persons/revision petitioners

have preferred this single revision petition.

7. By virtue of the memo filed by the learned

counsel for revision petitioners referred to supra, the

present revision is now restricted to only against the

judgment passed in Criminal Appeal No.5008/2015,

whereunder the accused persons/Revision Petitioners have

been ordered to undergo simple imprisonment for a period

of two years for the offence punishable under section 326

of IPC. In other words, the conviction order which came to

be confirmed in Criminal Appeal No. No.5002/2015,

became final.

8. In view of the peculiar facts and circumstances of

the case, the only point that would arise for consideration

is:

"Whether the learned Judge in the First Appellate Court was justified in enhancing the sentence of six months simple imprisonment to two years simple imprisonment for the offence punishable under section 326 of IPC?"

In the case on hand, in view of the Memo, the order

of conviction passed by the learned Trial Magistrate for the

aforesaid offences has become final. In Exs.P-7 and P-8,

which are the wound certificates, there is a mention that

the injured Nagaraju-PW2 has sustained injury as under:

(i) Contusion on the top of head measuring 2"

by 3" cm;

      (ii)      Abrasion of sk ½ " wide;


      (iii)     Swelling of right eye lid.


These injuries were treated as grievous injuries.          Ex.P-8

also mentions that there is a CT scan taken and there is a

fracture of frontal sinus medial wall of right orbit. Dr.

Komala, who is examined before the court as PW-12 has

deposed about the injuries sustained by Nagaraju PW-2 as

is found in Ex.P-8.

Admittedly, there is no X-ray film or radiological

report filed by the prosecution to classify the injuries found

in Ex.P-8 as grievous injuries.

In a matter of this nature, an injury cannot be

considered as a grievous injury unless X-ray film or

radiological report filed as is held by the Division Bench of

this Court in the case of State v.Sheenappa Gowda &

Others reported in (2011)(4)KCCR 2759, wherein it is

stated in para No.11 which reads as under:

"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 Indian Penal Code 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 reasonable doubt. The evidence 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

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."

Nevertheless, since the Revision Petitioners have not

challenged the conviction order on account of shear

technicalities, this court cannot allow the injustice to

remain on record.

Had there been a challenge to the conviction order

by filing a separate Revision Petition challenging the order

of conviction, this court would necessarily required to scale

down the injury sustained by Nagaraju as simple injuries

following the Sheenappa's case supra and in which case,

the offence alleged against the accused would be one

which would fall under Section 324 of IPC.

Taking note of the above peculiar facts and

circumstances of the case, this court is of the considered

opinion that the sentence of six months, ordered by the

learned Trial Magistrate enhanced to two years for the

offence punishable under section 326 IPC needs to be

interfered with and the accused persons be directed to

execute a bond for their good behaviour by granting the

benefit of probation and ordering fine in a sum of

Rs.15,000/- to each of the accused for all the offences and

out of the fine amount, if the injured PWs.1 & 2 are paid

suitable compensation, ends of justice would be met.

Accordingly, Point No.1 is answered partly in the

Affirmative and pass the following:

ORDER

i. The Criminal Revision Petition is allowed in

part.

ii. While maintaining the order of conviction, accused persons/Revision Petitioners are directed to execute a bond in a sum of

Rs.25,000/- each with one surety for the likesum to the satisfaction of the learned Trial Judge, which shall be in force for a period of two years from the date of execution of the bond and ordered to pay fine of Rs.15,000/- each for all the offences inclusive of the fine imposed by the learned Trial Judge confirmed by the first appellate court.

iii. Out of the fine amount, a sum of Rs.25,000/-

is ordered to be paid as compensation to PW-1 Mohan Kumar and a sum of Rs.50,000/- is ordered to be paid as compensation to PW-2 Nagaraj under due identification.

iv. The balance fine amount of Rs.15,000/- shall be appropriated to the State towards defraying expenses with default sentence of one year simple imprisonment.

v. Time is granted to execute the bond and to pay the fine amount, till 31.01.2022.

vi. It is made clear that if there is any violation of the bond conditions or to pay the fine amount as ordered by this Court, the order passed by the learned Trial Judge restored automatically.

vii. Office is directed to return the Lower Court Records with the copy of this order, forthwith.

Sd/-

JUDGE

SSD/PL*