Kandana Suraj Ponnanna vs The State Of Karnataka
2021 Latest Caselaw 6282 Kant

 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. 530 OF 2012

BETWEEN:

KANDANA SURAJ PONNANNA
S/O. GANAPATHY
AGED ABOUT 41 YEARS
R/O. KOLAKERI VILLAGE AND POST
MADIKERI TALUK,
KODAGU.
                                     ...PETITIONER
(BY SRI. R.K. MAHADEVA, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY ITS
NAPOKLU POLICE STATION
NAPOKLU
MADIKERI TALUK AND DISTRICT.
                                     ...RESPONDENT
(BY SRI. V.S. VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION DATED
05.06.2006 IN C.C.NO.1352/2004 ON THE FILE OF
PRINCIPAL CIVIL JUDGE (JR.DVN) AND JMFC, AT
MADIKERI FOR THE OFFENCE UNDER SECTION 341 OF IPC
                            2

AND 326 IPC TO UNDERGO SI FOR A PERIOD OF ONE
MONTH AND TO A FINE OF RS.500/- IN DEFAULT OF
PAYMENT OF FINE SHALL UNDERGO SI FOR A PERIOD OF
ONE MONTH FOR THE OFFENCE UNDER SECTION 341 IPC
AND FURTHER CONVICTED HIM TO UNDERGO RI FOR A
PERIOD OF ONE YEAR AND TO A FINE OF RS.3,000/- IN
DEFAULT OF PAYMENT OF FINE SHALL UNDERGO SI FOR A
PERIOD    OF  6   MONTHS,    WHICH  IS  MODIFIED
CRL.A.NO.60/2006 DATED 21.02.2012 ON THE FILE OF
PRESIDING OFFICER, FAST TRACK COURT, MADIKERI
THAT IMPOSED PENALY OF RS.500/- IN DEFAULT TO
UNDERGO SI FOR A PERIOD OF 10 DAYS FOR THE
OFFENCE UNDER SECTION 341 IPC AND IMPOSING RI FOR
A PERIOD OF 4 MONTHS AND TO PAY A FINE OF
RS.2,000/- IN DEFAULT OF PAYMENT OF FINE HAS TO
UNDERGO SI FOR A PERIOD OF 6 MONTHS FOR THE
OFFENCE UNDER SECTION 326 OF IPC AND THE
PETITIONER MAY BE ORDERED TO BE ACQUITTED FROM
ALL THE CHARGES AGAINST HIM IN THE ABOVE CASE IN
THE INTEREST OF JUSTICE AND EQUITY.

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

                        ORDER

The accused who has been convicted for the

offence punishable under Sections 326 and 341 of

Indian Penal Code (for short 'IPC) and sentenced to

undergo one year imprisonment, which was modified by

the First Appellate Court in Crl.A.No.60/2006 is in this

revision petition.

2. The brief facts of the case are as under:-

The charge sheet came to be filed in

C.C.No.1352/2004, which reveals that on 17.05.2004 in

the afternoon at about 3.30 p.m., when the complainant

was proceeding near Davasabandara Society at Kolakeri

in his Auto Rickshaw bearing No.KA-12-6098, the

accused came in a Maruthi Van bearing No.KA-04-1186

and restrained the complainant and picked up a quarrel

and assaulted him with a Hockey Stick on his head,

mouth, hands and leg and caused grievous injuries. The

police after thorough investigation laid the charge sheet

against the accused for the offence punishable under

Section 341 and 326 IPC.

3. The presence of the accused was secured by

the trial Magistrate and charge was framed. Accused

pleaded not guilty and therefore, trial was held. In order

to prove the case of the prosecution, the prosecution in

all examined eight witnesses comprising of the injured

complainant, Mahazar witnesses, Medical Officer as well

as the Investigation Agency. The prosecution also relied

on eight documents, which were exhibited and marked

as Exs.P1 to P8. Thereafter, the accused statement as

contemplated under Section 313 Cr.P.C., was recorded,

wherein accused has denied all the incriminating

circumstances. During the course of cross-examination

of prosecution witnesses, accused also marked

document, which is a charge sheet filed against the

complainant, wherein the complainant has assaulted the

accused and has marked as Ex.D1. The prosecution also

relied upon three material objects, which were pant,

shirt and Hockey Stick. The learned trial Magistrate

after hearing the parties in detail convicted the accused

punishable under Sections 341 and 326 of IPC and

awarded sentence of one month simple imprisonment

for the offence punishable under Section 341 of IPC with

fine of Rs.500/- with default sentence of one year

rigorous imprisonment, for the offence punishable under

Section 326 of IPC, a fine of Rs.3,000/- with default

sentence to undergo simple imprisonment for a period of

six months. Being aggrieved by the same, the accused

filed an appeal before Fast Track Judge, Kodagu at

Madikeri in Crl.A.No.60/2006.

4. The learned trial judge in the First Appellate

Court after securing the records and hearing the parties

in detail by judgment dated 21.02.2012 allowed the

appeal in part by maintaining the conviction of the

offence under Sections 341 and 326 of IPC and modified

the sentence imposed by the trial Magistrate by ordering

only fine for the offence punishable under Section 341

IPC in a sum of Rs.500/- with a default sentence of 10

days simple imprisonment and for the offence

punishable under Section 326 IPC awarded fine of

Rs.2,000/- and imprisonment for a period of four

months as against one year ordered by the trial

Magistrate with default sentence. Being aggrieved by

the same, the accused preferred this revision petition.

5. In the revision petition, the following grounds

were urged:-

• The judgment and sentence of the learned trial Court is against low, facts and circumstances of the case and as such the judgment and sentence is bad in law.

• The learned trial Court failed to appreciate the latches, taking contradiction in the evidence of the prosecution witnesses which clearly nullifies the case of the complainant.

• The learned trial Court unnecessarily held that the prosecution has proved the case against the appellant beyond all reasonable doubt. • The learned trial Court has miserable failed to appreciate the evidence on record in its proper prospective and also on the true spirit of law and evidence before the Court.

• The learned trial Court miserably failed to take judicial notice of the different versions of the prosecution witnesses in their evidence and also contradictions.

• The learned trial Court ought to have held that there is no direct, cogent and clear case against the appellant for passing sentence order of conviction.

• There is no corroborating and convincing evidence to convict the appellant by the learned trial Court is bad in law and liable to be set aside.

• The learned trial Court has erred in appreciating the facts and circumstances of the case, motive,

intention of defrauding, glaring probative value of evidence, etc., while concluding the case. • The learned trial Court ought to have held that the alleged offences not liable to convict since the prosecution proved beyond reasonable doubt. • The learned trial Court ought to have held that since the prosecution failed to prove the case, the appellant is entitled for acquittal and could have acquitted the appellant.

• The impugned sentence order passed by the learned trial Court in the judgment is against the law, facts and circumstances of the case. • The First Appellate Court has not considered any of the points raised by the appellant. It has miserably failed to consider the points raised on behalf of the petitioner. Trial Court is not considered the evidence of PW-8 and the evidence of PW.1 and PW.8 are not corroborative. Hence, judgment passed by the trial Court are bad in law and liable to be set aside.

• The prosecution witnesses are interested witness (i.e., PW1 to 3) and there are no independent witnesses and the prosecution has not examined any independent witnesses.

6. Reiterating the above contentions, the

learned counsel for the revision petitioner Sri. R.K.

Mahadeva, vehemently contended that both the Courts

have not properly appreciated the material evidence on

record and wrongly convicted the accused. He also

pointed that the Wound Certificate marked at Ex.P5, no

doubt shows that the injury Nos. 3 and 4 are grievous

injuries. To support the same, there is no material on

record. He also pointed out that the oral testimony of

PW.8 - Dr. Suma, is only in the form of opinion evidence

and in the absence of any base material to classify

injury Nos.3 and 4 as grievous injuries. The trial

Magistrate and First Appellate Court grossly erred in

convicting the accused for the offence punishable under

Section of 326 of IPC and thus sought for allowing the

revision petition. Alternatively, he contended that in the

absence of any material on record, this Court may scale

down the offence from Section 326 to Section 324 of IPC

and grant probation to the revision petitioner.

7. Per contra, Sri. V.S. Vinayaka, learned High

Court Government Pleader while supporting the

impugned judgment contended that injury Nos.3 and 4 -

Ex.P5 clearly indicate that two teeth of the complainant

got partially fractured in the incident and weapon used

is a Hockey stick and therefore, there is no justification

in scaling down the offence from Section 326 to 324 IPC

and sought for dismissal of the revision petition. In so

far as alternative submission is concerned, he contended

that having regard to the fact that accused has been

convicted for the offence under Section 326 of IPC no

probation can be granted to the accused and prayed for

dismissal of the revision petition.

8. In view of the rival contentions, following

points would arise for consideration:-

i. Whether the finding recorded by the trial Magistrate confirmed by the First Appellate Court that accused is guilty of the offence punishable under Section 341 and 326 is suffering from legal infirmity, patent factual defect and perversity and thus calls for interference?

ii.. Whether the sentence is excessive?

9. In the case on hand, the incident had

occurred on 17.05.2004 wherein there is an altercation

between the accused and the complainant stands

established by placing necessary oral and documentary

evidence on record. Admittedly, the accused came in a

Maruthi Van and intercepted the moving auto rickshaw

wherein the complainant was present and pulled the

complainant out and picked up a quarrel and assaulted

him with Hockey Stick - M.O.3. The material evidence

on record clearly establish the same. In the incident

also the complainant got injured. The wound certificate

marked at Ex.P5 depicts the following injuries :-

i. 0.5 x 1 cm, size cut injury on the right forehead.

ii. 2x2 cm, size cut injury on the right leg at upper 1/3 region blood was oozing. iii. The left upper incisor tooth was broken partly of about ¾ portion.

iv. The lower middle teeth was broken of about ¼ portion.

v. There was swelling and pain on the left palm.

10. PW.8 is a doctor who issued Ex.P5 - Wound

Certificate has deposed before the Court reiterating the

contention of Ex.P5 and supporting the case of the

prosecution. Ex.D1 is the charge sheet that has been

confronted by the accused. This shows that there was a

previous enmity between the accused and complainant.

Therefore, there was sufficient motive for the said

incident as is contended by the prosecution stands

established. Having said thus injury Nos.3 and 4 has

been classified as grievous injury by PW.8. In order to

substantiate the same, there is no supporting material.

The oral testimony of PW.8 alone is not sufficient to

classify the injury Nos.3 and 4 as grievous injury. No x-

ray is taken nor any photograph is taken to show that

there is partial fracture of the teeth as is mentioned in

Ex.P5. Further, the doctor has also not specifically

stated that the fracture of the teeth mentioned in Wound

Certificate - Ex.P5 is a fresh or old fracture. Having

regard to the age of the PW1, possibility is there that

the fracture may be earlier itself. Further, in the

absence of blood injury on the lips of the PW1, it cannot

be construed that the fracture of teeth has taken place

only with the incident. To that extent, the benefit is to

be transferred on to the accused. Under such

circumstances, the injury noted by Doctor cannot be

construed as grievous injury and therefore the same

needs to be scaled down to Section 324 of IPC. Having

said thus, the trial Magistrate and First Appellate court

did not appreciate the said aspect of the matter in

proper perspective and accordingly, the same needs to

be interfered by this Court in this revision petition.

Hence, point Nos.1 and 2 are answered Partly-in-the -

affirmative and pass the following:-

ORDER

i. The Criminal Revision petition is allowed in part.

ii. While maintaining the conviction of the accused punishable under Section 341, the offence punishable under Section 326 is scaled down to offence punishable under Section 324 IPC and ordered to pay fine of Rs.500/- for the offence punishable under Section 341 IPC and a sum of Rs.25,000/- for the offence punishable under Section 324 IPC with a default sentence of one year simple imprisonment.

iii. Further, the accused is directed to execute a bond in a sum of Rs.25,000/- with one surety for the likesum for his good behaviour, which will be in force for a period of two years from the date of execution.

   iv.    Out of the fine amount, a sum of
   Rs.20,000/-      is    ordered    to   be   paid   as

compensation to PW-1 injured under due identification as is contemplated under Section 357 of Cr.P.C.,

v. Accordingly, accused is granted time to pay and to execute the bond till *31.01.2022.

* Corrected vide chamber order dated 21.1.2022.

vi. If there is any breach of bond condition or non-payment of fine amount, the order of conviction passed and modified by the learned judge in the First Appellate Court stands automatically restored.

Office is directed to return the trial Court records

with a copy of the order forthwith.

Sd/-

JUDGE

AG