Ramakrishna S/O Somanna vs State Of Karnataka
2021 Latest Caselaw 6232 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 16TH DAY OF DECEMBER, 2021

                     BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.355/2012


BETWEEN

1    RAMAKRISHNA
     S/O SOMANNA
     AGED ABOUT 38 YEARS

2    RAJA @ RAJANAYAKA
     S/O SOMANNA
     AGED ABOUT 48 YEARS

3    LALITHA
     W/O RAJA @ RAJANAYAKA
     AGED ABOUT 38 YEARS

     ALL ARE RESIDING AT
     RAMENAHALLI VILLAGE,
     YELAWALA HOBLI,
     MYSORE TALUK AND DISTRICT.
                                   ...PETITIONERS
(BY SRI P MAHESHA, ADVOCATE)
                               2

AND

STATE OF KARNATAKA
BY YELAWALA POLICE STATION,
MYSORE DISTRICT
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE 560 001
                                             ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER OF CONVICTION PASSED BY THE JMFC-II MYSORE
IN C.C.NO.305/10 DATED;24.11.11 AND THE ORDER
PASSED BY THE PRL.DISTRICT AND S.J AT MYSORE IN
CRL.A.NO.150/11 DATED:3.3.12.

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

                           ORDER

Though the matter is listed for orders today, with the

consent of both the parties, the matter is taken up for final

disposal.

2. Heard Sri.P.Mahesha, learned counsel for the

Revision Petitioners and learned High Court Government

Pleader for the respondent-State and perused the records.

3. This Revision Petition is filed by the accused

persons/Revision Petitioners, who have suffered an order

of conviction in C.C.No.305/2010 on the file of the Court of

JMFC (II Court) at Mysore by Judgment dated 24.11.2011,

whereby he has been convicted for the offences punishable

under Sections 324, 326 and 504 read with Section 34 of

IPC, which was confirmed in Criminal Appeal No.150/2011

on the file of the Court of the Principal District & Sessions

Judge at Mysore by judgment dated 03.03.2012.

4. Brief facts of the case are as under:

Upon a complaint lodged by Lakshmi contending that

on 01.01.2010 at about 9.00 P.M., in front of the house of

CW.2-Suvarna, there was a altercation, wherein the

accused persons abused the complainant in filthy language

and they did not spent money for obsequies ceremony her

husband and she has leased the agricultural land to some

other person. On being questioned by the complainant,

accused persons assaulted on her hand and kicked her

with legs whereby she has sustained injuries and sought

for action against the accused persons. Upon receipt of the

complaint, police registered a case against the accused

persons and also investigated the matter and laid charge

sheet against the accused persons for the offences

punishable under Sections 504, 326 and 324 read with

Section 34 of IPC.

5. The presence of the accused was secured

before the learned Magistrate and charges were framed.

Accused pleaded not guilty and as such, trial was held.

6. In order to prove the case of the prosecution,

prosecution in all examined 8 witnesses as PWs.1 to 8 and

relied on 6 documentary evidence which were marked and

exhibited as Exs.P1 to 6. During the course of cross

examination of PW.4, the defence marked at Ex.D.1 which

is a contradiction. The prosecution also marked three

material objects namely club, Bamboo Stick and Stone.

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C was recorded, wherein accused denied all the

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by adducing oral

evidence or filing a written submission as is contemplated

under Section 313(5) Cr.P.C.

8. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

persons for the aforesaid offences and sentenced as under:

       •   "The     accused     No.1    to   3    are   hereby
           convicted    for     the     offence    punishable
           U/s.324 r/w 34 of IPC and sentenced to

undergo S.I. for a period of six months.

• The accused No.1 to 3 are hereby convicted for the offence punishable U/s.326 r/w 34 of IPC., and sentenced to undergo S.I. for a period of one year and further sentenced to pay a fine of Rs.1000/- each and in default of payment of fine they shall undergo SI for a period of three months.

• The accused No.1 to 3 are hereby convicted for the offence punishable U/s.506 r/w 34 of IPC., and sentenced to pay a fine of Rs.1000/- each in default of fine, they shall further undergo SI for a period of three months.

• Acting under Sec.428 of Cr.P.C. the period undergone by the accused No.1 to 3 if any in Judicial Custody is hereby given set off."

9. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.150/2011.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

persons are in the Revision Petition.

10. In the Revision Petition, the following grounds

are raised:

"a) The impugned order of courts is illegal, erroneous and not maintainable either under law of on facts.

b) The learned courts below erred in considering that in the complaint the complainant stated that after the incident she took treatment at K.R.Hospital, but while giving evidence she deposed that she had taken treatment at Yelawala Primary Health Centre and further she deposed in the cross-

examination that on the date of incident she visited the respondent police station at about 9.00 pm, hence different version of the complainant clearly shows that the complainant has given false complaint only with an intention to harass the petitioners.

c) The learned courts below failed to consider that the non examination of the doctor who treated the injured at the earliest point of time which created doubt on the case of the prosecution, not extending the benefit of doubt in favor of petitioners convicting them is clear victimization.

d) The learned courts below erred in considering that the prosecution ought to have examined independent witnesses and hence non examination and non corroboration of the independent witnesses also falsify the case of the prosecution.

e) The learned court below clearly held that the evidence is contradictory and not

corroborative to each other despite of the same without extending the benefit of doubt in favor of petitioners erred in convicting them, therefore the entire judgment and order of the courts below is liable to be set aside.

f) The learned courts below not justified in holding that the prosecution has proved the case against the accused beyond reasonable doubt since the version of the complainant itself is different in complaint and evidence and in cross-examination, thus convicting the accused is a clear victimization.

g) By looking into any angle of the matter the courts below is not justified in convicting the accused person, hence there is no material to substantiate the case of the prosecution, hence interference of this Hon'ble Court is necessary."

Reiterating the above grounds, learned counsel for the

Revision Petitioners Sri P.Mahesha vehemently contended

that both the Courts have not properly appreciated the

materials on record and wrongly convicted the accused

persons resulting in miscarriage of justice and thus,

sought for allowing the Revision Petition. Alternatively, he

contended that in the absence of any

X-ray produced, this Court may consider from scaling

down the offence from 326 to 324 IPC and grant probation

by enhancing fine amount.

11. Per contra, learned High Court Government

Pleader supported the impugned judgment and

vehemently contended that the oral evidence of injured

witness and medical evidence in the form of the wound

certificate marked at Ex.P5 coupled with oral testimony of

PW.5-Dr. Usha, the Trial Magistrate has rightly concluded

that the accused persons are guilty of the aforesaid

offences which has been rightly re-appreciated by the

learned Judge in the first Appellate Court and sought for

dismissal of the Revision Petition. Insofar as alternate

contention is concerned, the wound certificate marked at

Ex.P5 coupled with oral testimony of PW.5-Dr.Usha clearly

shows that there was a fracture injury and mere non

production of X-ray certificate itself is not sufficient to

scale down the offence from 326 to 324 IPC and sought for

dismissal of the Revision Petition.

12. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused persons are guilty of the offences punishable under Sections 324, 326 and 504 read with Section 34 of IPC which was confirmed by the First Appellate Court is suffering from legal infirmity, patent factual defect or perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

13. In the case on hand, the injured complainant is

examined as PW.1. Material evidence on record clearly

indicate that there was a altercation as per the complaint

averments on 01.01.2010 at about 9.00 p.m., in front of

the house of Suvarna, who has been examined as PW.2.

The wound certificate marked at Ex.P5 shows that there

are external injuries sustained by PW.1. Dr. Usha, who has

been examined as PW.5, who issued the wound certificate

supported the case of the prosecution. So also, the other

witnesses have supported the case of the prosecution

except Nagaraja, in his evidence Ex.D1 marked as

contradiction by defence. The minor contradictions are

available in each and every criminal case at the same

should not be blown out of proportion while appreciating

the case of the prosecution in toto. Keeping these aspects

of the matter, learned Trial Judge rightly convicted the

accused by recording a finding that the accused persons

are guilty of the offences punishable under Sections 324,

326 and 506 IPC. However, conviction of the accused

persons for the offences punishable under Sections 324

and 326 IPC needs to be interfered in view of the

judgment of the Division Bench of this Court in the case of

State v. Sheenappa Gowda reported in 2011(4) KCCR

2759, the relevant paragraph is culled out hereunder:

"11. 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 Penal Code, 1860 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 prove that the accused Nos. 1 to 3 and 5 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".

14. Applying the legal principles enunciated in the

above decision to the case on hand, non production of

X-ray certificate or radiological report, the Trial Magistrate

ought not to have convicted the accused persons for the

offence punishable under Section 326 IPC, which has been

unfortunately ignored by the learned Judge in the first

Appellate Court.

15. In view of the Division Bench ruling of this

Court categorically holding that non filing of the X-ray

report and radiological report, the oral testimony of PW.5

would only be considered as opinion evidence under

Section 45 of the Indian Evidence Act and therefore, the

same cannot be considered for convicting the accused

persons for the offence punishable under Section 326 IPC

and to that extent, the order passed by the Trial

Magistrate and learned Judge in the first Appellate Court

needs to be interfered. Having said thus, the material

evidence available on record is sufficient enough to upheld

the order of conviction passed by the Trial Magistrate and

confirmed by the first Appellate Court for the offences

punishable under Sections 324 and 506 IPC.

16. Having regard to the fact that this Court scale

down the offence from 326 to 324 IPC since the accused

persons are the first time offenders, this Court is of the

considered opinion that ordering the accused persons to

execute a bond in a sum of Rs.25,000/- each with one

surety for their good behavior and ordering each of the

accused persons to pay fine of Rs.20,000/- for all the

offences punishable under Sections 324 and 506 IPC,

would meet the ends of justice and it would be appropriate

sentence in the facts and circumstances of the case on

hand. Accordingly, point Nos.1 and 2 are answered partly

in the affirmative and following order is passed:

ORDER

1. Criminal Revision Petition is allowed-in-part.

2. The accused persons are acquitted for the offence punishable under Section 326 IPC and convicted for the offences punishable under Sections 324 and 506 read with Section 34 IPC and ordered to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Court, which shall be in force for a period of two years and to pay fine of Rs.20,000/- by each of the accused persons for all the offences, with default, sentence to undergo simple imprisonment for a period of one year.

3. Time is granted to execute bond and to pay fine till 31.01.2022.

4. It is made clear that in the event of any violation of the bond conditions or non payment of fine amount, the order passed by the Trial Magistrate and confirmed by the first Appellate Court automatically stands restored.

Office is directed to return the trial Court records

with copy of this order forthwith.

In view of the disposal of the main petition,

I.A.No.1/2020 is also disposed of.

Sd/-

JUDGE

KA*