Shivanna @ Shivappa S/O Tammanna vs The State Of Karnataka
2021 Latest Caselaw 6237 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 16TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200124/2015

BETWEEN:

SHIVANNA @ SHIVAPPA
S/O TAMMANNA
AGED ABOUT 41 YEARS
R/AT MUDAGOT, TQ: DEVADURGA
DIST: RAICHUR
                                          ... APPELLANT
(BY SRI J. AUGUSTIN, ADVOCATE)

AND:

THE STATE OF KARNATAKA
THROUGH THE PSI OF JAALAHALLI
POLICE STATION, DIST: RAICHUR
PRESENTLY REP. BY
ADDITIONAL SPP
HIGH COURT BUILDING
KALABURAGI
                                         ... RESPONDENT
(BY SRI SHARANABASAPPA M. PATIL, HCGP)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 05.11.2015
PASSED IN SESSIONS CASE No.28/2014 BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT RAICHUR AND ETC.


      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                  2



                           JUDGMENT

Heard the learned counsel appearing for the

appellant and the learned High Court Government Pleader

appearing for the State.

2. The factual matrix of the case is that the

complainant in his complaint stated that his sister

Yellamma was given in marriage to Karadigudda village

and after the death of her husband she is staying with him

at Mudagot along with her children. Her son Nagaraj aged

about 9 years is attending Government school at Mudagot.

On 17.04.2014, at about 4.00 p.m., said Nagaraj and son

of the accused quarreled each other while playing. At that

time accused forcibly took Nagaraj inside his house,

abused and assaulted him with stick and also with hands

with intention to committing his murder and caused

injuries on his head, leg and other parts of his body. His

sister informed by phone. She came to the spot and took

the said Nagaraj to the Government hospital. In this

regard, the complaint was lodged after two days. The

police have registered the case for the offences punishable

under Sections 504, 324 and 307 of IPC. The police

investigated the matter and filed the charge sheet and the

accused did not plead guilty and hence, the prosecution

examined PW1 to 11 and got marked documents at Exs.P1

to 4 and MO1. During the cross-examination, Ex.D1 and 2

also got marked. The Trial Court after considering both

the oral and document evidence, acquitted the accused for

the offences punishable under Sections 504 and 307 of IPC

and convicted for the offence pus 324 of IPC. The Trial

Court also imposed sentence for a period of one year and

fine of Rs.6,000/-. Hence, the present appeal is filed.

3. The counsel for the appellant would

vehemently contend that there was a delay of three days

in lodging the complaint and there was no explanation for

the same. The counsel also submits that the Trial Court

has missed a very important aspect of contradictions

elicited from the mouth of PW1, 3, 4, 5 and 7. the Trial

Court has also taken note of Ex.P3 - wound certificate. It

shows that injured was treated at PHC Jalahalli and further

at RIMS Teaching District hospital on 19.04.2013. The

evidence of medical officer is clear that the nature of the

injuries suffered by the injured also to be caused if a

person falls in a hard surface. The medical evidence as well

as the other prosecution witnesses not corroborates each

other and also not inspires the confidence of the Court.

Inspite of this, Trial Court has committed an error in

convicting the appellant.

4. Per contra, the learned High Court Government

Pleader for the State would submit that injured evidence

who has been examined as PW7 speaks with regard to the

assault made by the accused on him and hence, PW3-

mother of the injured also reiterates the same. The

counsel also submits that the injured is aged about 9 years

and the other evidence of medical officer who treated the

injured has been examined as PW6 and though he deposed

that the injuries mentioned in Ex.P3 is caused by fall on

the rough surface and same will not take away the case of

the prosecution. The evidence of the prosecution

witnesses are consistent with each other and corroborates

with each other and PW1 who is the complainant also

supported the case of the prosecution.

5. Having heard the respective counsel for the

parties and also on perusal of records, the point that would

arise for the consideration before the Court is

Whether the Trial Court has committed an

error in convicting the accused for the offence

punishable under Section 324 of IPC?

6. Having read the evidence of prosecution

witnesses and also the contention raised by the appellant

counsel and particularly the evidence of PW7 who is the

injured aged about 11 years at the time of examination, he

reiterates that while playing, the galata was taken place

and thereafter accused came and took him to his house

and assaulted him with the stick. As a result, he sustained

bleeding injury and he fell down and on hearing streaming

sound, his mother and other witnesses came to the spot

and took him to the hospital and he also identifies MO1

which was used for assaulting him. He admits that both

himself and the son of the accused were studying in the

same school and used to sit in the same bench. He also

admits that there was no cordiality between his maternal

uncle and the accused. He also admits that he is deposing

in terms of his maternal uncle. It is suggested that the

accused has not assaulted him and twisted his let and the

same was denied. But he says that he had seen MO1

while assaulting him. It is suggested that he fell down and

sustained injuries while playing and the same was denied.

No doubt, on perusal of the evidence of PW1, it is elicited

that the relationship between his maternal uncle and the

accused was not cordial. On perusal of the medical

evidence i.e., evidence of PW6 it is clear that he is

suffering pain and tenderness on left occipital region and

also he was suffering pain and tenderness on the left leg,

left ankle and left foot and patient was unable to walk and

talk and in the x-ray report it shows that there is no

fracture and the injuries are simple in nature and also says

that the said injuries may be caused by assault with stick

shown to him which is identified as MO1.

7. The learned counsel for the appellant would

vehemently contend that the answer elicited from the

mouth of PW7 that the relationship of his maternal uncle

and accused was not cordial, hence, the Trial Court ought

not to have convicted the accused. The said submission

cannot be accepted. Though the injured is minor witness

and his evidence is consistent and his evidence is very

clear that this accused took him inside the house and

assaulted him with the stick and also he identifies the MO1

and he sustained bleeding injuries. It is also emerged in

the evidence that the incident was taken place in view of

the quarrel between PW7 and the son of the accused and

both were studying in the same school and same class.

8. Having considered the material available on

record and particularly, the injured witness and the

medical witness and other witnesses are only

circumstantial evidence i.e., mother and maternal uncle

who has been examined as PW1 and PW3 and hence, I do

not find any error committed by the Trial Court in coming

to the conclusion that the appellant inflicted the injury with

stick. No doubt, PW6 admits that the injuries mentioned in

Ex.P3-wound certificate would be caused by fall on rough

surface and also the witness says that injuries were of 2 to

3 days old injury and also he says that by assault with

stick shown to him would also cause similar injuries. The

Court also taken note of the evidence of injured who is

aged about 11 years at the time of examining him before

the Court but his evidence is clear that at the time of

quarrel with the son of the accused, the accused had

sustained bleeding injuries and apart from that he

categorically deposed before the Court that when he seen

the stick he identifies the same and the fact that he had

sustained injury on his left leg, left ankle and left foot and

also he had sustained injury on the left occipital region.

Hence, the very contention of the counsel for the appellant

that the doctor who has been examined as PW6 admit that

those injuries also could be caused only when the person

falls on the hard surface cannot be accepted. The injured

evidence and medical evidence corroborates each other.

No doubt, there was a delay of three days in lodging the

complaint and the record also reveals that injured was

taken to the hospital for treatment till 21.04.2013 and

obviously there was a delay in lodging the complaint and

the delay of three days in lodging the complaint will not

goes to the very root of the prosecution case.

9. The learned Trial Court also while considering

the material on record rightly comes to the conclusion that

there is no sufficient evidence to invoke Sections 307 and

504 of IPC. It is also the defence that there was a

boundary dispute. But it is also observed by the Trial Court

that the accused has not stated anything about the

boundary dispute in his statement under Section 313 of

Cr.P.C. The Trial Court also considering the evidence of

PW7 and also taking note of the usage of MO1 and

considering the nature of the injuries comes to the

conclusion that the prosecution has proved the case to

invoke Section 324 of IPC. When such materials are

considered by the Trial Court, I do not find any error

committed by it in appreciating the evidence in convicting

the accused.

10. With regard to the sentence is concerned, the

Trial Court convicted the accused for the offence

punishable under Section 324 of IPC and sentenced for a

period of one year. But the Trial Court has lost its sight on

the factual aspects of the case that the incident was taken

place only when there was a galata between the PW7-

injured and son of the accused that too while playing in the

ground and there was no any motive and for the trivial

issue, the incident was taken place and the injured was in

the hospital till 21.04.2013. Though the incident was taken

place on 17.04.2013, complaint was filed on 19.04.2013

and having taken note of the nature of injuries which are

simple in nature and the sentence imposed by the Trial

Court is disproportionate that too for a period of one year

and though the Trial Court comes to the conclusion that

Probation of Offenders Act cannot be invoked and ought to

have taken note of the circumstances in which incident

was taken place. No doubt, the punishment provided

under Section 324 of IPC when injured had sustained

injuries the same is punishable with imprisonment of either

description for a term which may extend to three years or

with fine or with both. When such being the case, it is

appropriate to enhance the fine amount of Rs.6,000/- to

Rs.20,000/- and out of that Rs.18,000/- is payable to the

injured and remaining amount of Rs.2,000/- shall be vest

with the State and enhancing of the fine amount will meet

the ends of justice instead of the sentencing of the

appellant to undergo simple imprisonment for a period of

one year since the incident was taken place in connection

with the galata between the children.

11. In view of the discussions made above, I pass

the following:

ORDER

The appeal is allowed in part. The judgment of

conviction for the offence punishable under Sections 324 of

IPC is confirmed. However, the sentence is modified

enhancing the fine amount of Rs.6,000/- to Rs.20,000/-

and out of that, Rs.18,000/- shall be paid to the injured

and remaining amount of Rs.2,000/- shall be vest with the

State and order of sentence for a period of one year is set

aside.

Sd/-

JUDGE

SAN