Karnataka High Court

Narasimalu S/ Mallesh vs The State Of Karnataka on 21 December, 2021

Bench: H.P.Sandesh

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 21ST DAY OF DECEMBER 2021

                       BEFORE

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

             CRL. RP. No.200070/2014

BETWEEN

NARASIMALU S/O MALLESHI
AGE: 30 YEARS OCC : AGRICULTURE
R/O : SARJAPUR VILLAGE
TQ & DIST : RAICHUR
                                         ...PETITIONER

(By Sri KEDAR DESAI & SRI MAHANTESH DESAI,
ADVOCATES)

AND

THE STATE OF KARNATAKA
THROUGH YAPALADINNI P.S.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
GULBARGA BENCH.
                                         ...RESPONDENT

(By Sri SRI GURURAJ V. HASILKAR, HCGP)


     THIS CRL.RP FILED U/S 397 OF CR.P.C PRAYING TO
ALLOWE THE PETITION BY SETTING ASIDE THE JUDGEMENT
OF CONVICTION AND SENTENCE/ORDER PASSED BY THE
HON'BLE COURT OF PRL. SESSIONS JUDGE AT RAICHUR IN
CRIMINAL APPEAL NO. 26/2013 DATED 18.10.2014 AND ALSO
SET ASIDE THE JUDGEMENT OF CONVICTION AND SENTENCE
PASSED BY THE III JMFC AT RAICHUR IN C.C.NO.2601/2011
                               2


DATED 02.08.2013 AND ORDER TO ACQUIT THE REVISION
PETITIONER OF THE OFFENCES CHARGED AGAINST HIM.

     THIS CRL.RP COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:

                         ORDER

Heard the learned counsel appearing for the revision

petitioner and the learned High Court Government Pleader

for the respondent/State.

2. The present petition is filed under Section 397

of Cr.P.C., praying to set aside the judgment dated

18.10.2014 passed by the Principal Sessions Judge,

Raichur in Criminal Appeal No.26/2013 and also the order

passed by the JMFC-III, Raichur in C.C.No.2601/2011

dated 02.08.2013.

3. The factual matrix of the case is that the

prosecution in the charge sheet made an allegation that on

02.10.2011, this petitioner inflicted an injury on P.W.1

while PWs.1 and 3 were working in the agricultural land

with the handle of the Salki on the left shoulder of P.W.1,

as a result of which, he has sustained the grievous injury

of fracture. The police have investigated the matter and

filed the charge sheet for the offences punishable under

Sections 504, 506, 326 of IPC. The accused/petitioner

herein did not plead guilty. Hence, the trial was conducted.

4. The trial Judge after considering both oral and

documentary evidence of P.Ws.1 to 8 and Exs.P1 to P5

convicted the accused for an offence punishable under

Section 326 of IPC and imposed sentence for a period of

three months with a fine of Rs.3,000/-. Being aggrieved

by the judgment of conviction, an appeal in Criminal

appeal No.26/2013 has been filed. The appellate Court on

re-consideration of the material available on record,

confirmed the judgment of conviction and sentence and

comes to the conclusion that the judgment is neither

perverse nor illegal and dismissed the appeal confirming

the order of conviction and sentence. Hence, the present

revision petition is filed.

5. The learned counsel appearing for the revision

petitioner would vehemently contend that both the Courts

have failed to take note of the fact that PWs.1 and 3 are

the interested witnesses and they are the husband and

wife. There are material contradictions in respect of the

evidence of P.W.5 and Ex.P3. P.W.5 says that the injuries

are occurred about 4 to 5 hours before examination but

the injured went to the hospital at 3:19 a.m. P.W.5

categorically admits that the injury will be caused with any

one assault with Salki backside. But P.W.3 says that the

injury was caused using the Salki handle on his front side

and hence, there are contradictions and these

contradictions are not appreciated by both the Courts.

Hence, the finding of the Trial Court is not correct and so

also the appellate Court also failed to appreciate the same.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit

that the injured as well as the eyewitness - P.W.3 have

supported the case of the prosecution. Apart from that,

the medical evidence i.e., evidence of P.W.5 also

corroborates the evidence of P.W.1. The contradictions of

PWs.3 and 5 will not go to the very route of the case of the

prosecution. Hence, there are no grounds to exercise the

revisional powers.

7. Having heard the learned counsel appearing

for the revision petitioner and the learned High Court

Government Pleader appearing for the respondent-State

and on perusal of the material available on record, the

points that would arise for consideration of this Court in

this revision petition are:

(1) Whether this Court can invoke Section 397 read with Section 401 of Cr.P.C., by exercising its revisional jurisdiction?

(2) What order?

Point No.(1):

8. Having heard the respective counsel and also

the material available on record, particularly, Wound

Certificate-Ex.P4, which discloses P.W.4 has suffered the

fracture. It is also important to note that according to the

prosecution, the incident was taken place on 02.10.2011 at

6:00 p.m. The medical records in terms of Ex.P4, is clear

that the injured went to the hospital at 3:19 a.m. The

very contention of the learned counsel for the petitioner is

that the timings mentioned by the Doctor - P.W.5 that

there was a gap between 4 to 5 hours. It is contended

that there are contradictions. The said contention cannot

be accepted. He went to the hospital on an early morning

i.e., at 3 a.m., and not in the noon as contended by the

learned counsel for the petitioner. Ex.P4-Wound Certificate

clearly indicates that he went to the hospital at 3:11 a.m.

and the minor difference of one or two hours will not take

away the case of the prosecution. It is also important to

note that the injured has supported the case of the

prosecution and when the injured evidence is credible and

the same is also supported by P.W.3. No doubt, P.W.3 is

the wife of P.W.1 but the very defense counsel in the

evidence of P.W.3 suggested that except the injury caused

to the shoulder, no other injuries are caused and admitted

in the suggestion regarding an injury caused to him on his

shoulder. The medical evidence also corresponds with the

evidence of PWs.1 and 3. When such being the case, I do

not find any error committed by both the Trial Court as

well as the appellate Court and the appellate Court also on

re-appreciation in paragraph Nos.16 and 17 discussed in

detail, the evidence of PWs.1 and 3 as well as the

evidence of the Doctor - P.W.5 and taken note of Ex.P3 -

Spot Panchanama, which also goes to show that the

handle of the Salki was lying on the spot of the incident

and the same was seized. The Doctor - P.W.5 also says

that the injury mentioned in Ex.P4 could be caused by

assault with MO.1. P.W.1 and P.W.3, identifies MO.1.

When such being the material available on record, I do not

find any grounds to exercise the revisional power under

Section 397 of Cr.P.C., and also do not find any error in

the findings of the Trial Court as well as the appellate

Court. Hence, the revisional powers cannot be exercised.

9. However, taking into note of the factual

aspects of the case that both the injured as well as this

revision petitioner are the neighbours and also it is

emerged that with regard to taking of water, there was an

agreement between the parties and the same is elicited

during the course of cross-examination and suddenly a

quarrel was taken place and assaulted with the handle of

the Salki. When such being the facts of the case, instead

of ordering for sentencing him for imprisonment and an

incident was also taken place in the year 2011 almost a

decade, it is appropriate to convert the same as fine

instead of ordering for imprisonment. Hence, taking into

note of the fracture, it is appropriate to enhance the fine

amount from Rs.3,000/- to Rs.20,000/- as P.W.1 has

suffered the fracture. Hence, it requires modification of

the sentence.

Point No.(2):

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

the following:

ORDER

(i) The petition is allowed in part.

(ii) The sentence of three months imprisonment is set aside and a fine amount of Rs.3,000/- is enhanced to Rs.20,000/-, the same is payable within four weeks, if any amount already deposited excluding the amount, the remaining amount has to be deposited within four weeks.