Karnataka High Court

Siddaraju vs State By Nanjanagudu Police on 22 December, 2021

Bench: V Srishananda

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 22ND DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION NO. 665/2012

BETWEEN

SIDDARAJU
S/O CHIKKANNAIAH
AGED ABOUT 31 YEARS
R/A HANGINAVALU VILLAGE
NANJANGUDU TALUK
MYSORE DISTRICT
                                      ...PETITIONER
(BY SRI MANJAPPA N D, ADVOCATE -ABSENT)

AND

STATE BY NANJANAGUDU RURAL POLICE
REP. BY ITS
PUBLIC PROSECUTOR
                                     ...RESPONDENT
(BY SRI VINAYAKA.V.S, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION OF SENTENCE AND FINE OF RS.10,000/-
WITH DEFAULT OF SENTENCE PASSED ON 25.01.2012 IN
C.C.NO.129/2008 ON THE FILE OF THE PRL. CIVIL JUDGE
& JMFC, NANJANGUD AND JUDGMENT AND ORDER DATED
                             2

12.04.2012 PASSED BY THE PRL. DISTRICT & SESSIONS
JUDGE, MYSORE IN CRL. APPEAL NO.41/2012.

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

                         ORDER

Case called twice, there is no representation on behalf

of the Revision Petitioner. However, learned counsel for

the Revision Petitioner addressed the arguments on his

behalf on 04.12.2021.

2. Heard Sri Vinayaka V.S., learned High Court

Government Pleader for the respondent and perused the

records.

3. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.129/2008,

on the file of the Principal Civil Judge & JMFC, Nanjangud

by Judgment dated 25.01.2012, whereby he has been

convicted for the offences punishable under Sections 324

and 326 read with Section 34 IPC and sentenced to

undergo rigorous imprisonment for a period of three years

and to pay fine of Rs.10,000/-, with default sentence of six

months simple imprisonment, which was modified in

Criminal Appeal No.41/2012 by reducing sentence to two

years rigorous imprisonment and fine is reduced from

Rs.10,000/- to Rs.5,000/-, by judgment dated 12.04.2012.

4. Brief facts of the case are as under:

On 13.08.2007 at about 4.00 p.m. at Haginavalu

Village, near the land of Devaraju near the kaggala tree,

accused persons came together and when cutting the

fence put up by the complainant and when questioned by

the complainant, all the accused persons wrongfully

restrained the complainant and voluntarily inflicted injury

with club and whereby the complainant sustained grievous

injury and approached the police for taking action against

the accused persons.

5. The jurisdictional police after registering the

case, investigated the matter in detail and filed charge

sheet against the accused persons for the offences

punishable under Sections 341, 326, 324 and 323 read

with Section 34 of IPC.

6. The presence of the accused persons were

secured before the learned Magistrate and charge was

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

held.

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

prosecution in all examined 9 witnesses as PWs.1 to 9 and

relied on 4 documentary evidence which were marked and

exhibited as Exs.P1 to 4 and one material object namely

club as MO.1.

8. On conclusion of the prosecution evidence,

accused statements as contemplated under Section 313

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

the incriminatory materials and did not choose to examine

themselves or place their version about the incident on

record in writing as is contemplated under Section 313(5)

Cr.P.C.

9. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, passed an order of

conviction against accused No.1 and acquitted the accused

Nos.2 and 3 for the aforesaid offences and sentenced as

aforesaid. State did not file appeal against the acquittal of

accused Nos.2 and 3 and therefore, as against accused

Nos.2 and 3, the order of the Trial Magistrate became

final.

10. Being aggrieved by the same, accused No.1

preferred an appeal in Criminal Appeal No.41/2012.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, partly allowed

the appeal by modifying the sentence of imprisonment

from three years to two years and fine from Rs.10,000/- to

Rs.5,000/- for the offence punishable under Section 326

IPC. Thereafter, the accused has preferred this Revision

Petition.

11. In the Revision Petition, the following grounds

are raised:

¾ The Judgment & order of conviction passed by the Ld. Magistrate and appellate court, is illegal, improper & perverse and required to be set aside.

¾ The Ld, courts below committed an error with ought considering the facts & circumstances and documents produced by the prosecution, the reasons assigned by the courts below are contrary to the facts & circumstances of the case. The judgment and order is one side and the courts below have wrongly came to the conclusion that the prosecution has proved guilt beyond reasonable doubt.

¾ The Ld, Courts below have failed to appreciate that the there are SO many discrepancies in the statement and evidence of the prosecution witnesses. The courts have give weightage only to the evidence of the P.W. 1 who was injured who said to be the assaulting. The courts below have failed to appreciate the same hence the order of conviction may be set aside.

¾ The courts below have not take the note that there are no independent witnesses to the incident, the CW 2 who said to be the eye witness to the said

incident not supported to the prosecution story. The CW 3 who is mahazar witness to the case also turned hostile. The judgment of conviction passed by the courts below totally against to the evidence on record. Hence the order of conviction is liable to be set aside.

¾ The Ld, courts below committed grave error in law and accepting and acting upon the irrelevant and oral evidence of Pws1 to 09 which are inadmissible in law.

¾ The PW 7 to 8 who was the I.O has stated that the injuries sustained by the CW 1 are in grievous in nature, and CW-1 admitted that he seeing the M.O.1 for the first time in the court.

¾ The Ld, Courts below have not formulated the proper question.

¾ The appellant seek the leave of this Hon'ble court to urge the additional grounds at the time of hearing.

Reiterating the above grounds, learned counsel for the

Revision Petitioner vehemently contended that both the

Courts have not properly appreciated the materials on

record and wrongly convicted the accused resulting in

miscarriage of justice and thus, sought for allowing the

Revision Petition. Alternatively, he contended that in the

absence of any X-ray film or radiological report produced

by the prosecution, the Trial Magistrate ought not to have

convicted the accused for the offence punishable under

Section 326 IPC and first Appellate Court also ignored the

same and sought for allowing the Revision Petition to that

extent.

12. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that in every case production of X-ray film and radiological

report is not a must and the oral testimony of Doctor

should to be presumed to classify the injury as the

grievous injury as is found in Ex.P4 - wound certificate and

thus, sought for dismissal of the Revision Petition in toto.

13. 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 is guilty of the offences punishable under Sections 324 and 326 IPC which was modified by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

14. In the case on hand, the incident that occurred

on 13.08.2007 at about 4.00 p.m. near the land of

complainant near kaggala tree wherein accused No.1

assaulting the complainant with M.O.1-club and

complainant sustaining the blood injuries stands

established by placing necessary oral and documentary

evidence on record. Learned Trial Judge in paragraph

No.12 of the impugned judgment though refers that the

x-ray was taken and injured PW.1 had the bandage, the

x-ray and the radiological report is not forthcoming on

record. The prosecution did not choose to place original

x-ray film or the radiological report on record. Doctor, who

is examined as PW.6 did not also produced the same

before the Court. Therefore, in the absence of the any

x-ray film and radiological report, the injuries sustained by

PW.1 as is found in Ex.P4 cannot be classified as grievous

injury as is found in Section 320 IPC. After all the evidence

of the Doctor in t eh absence of x-ray film and radiological

could only be treated as opinion evidence as is

contemplated under Section 45 of the Indian Evidence and

that would not be sufficient to hold that the injury is a

grievous injury. In this regard, this Court gainfully places

reliance on 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 resonable 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".

15. Applying the legal principles enunciated in the

above decision to the case on hand, the injuries sustained

by PW.1 cannot be considered as a grievous injury and the

same needs to be scaled down from grievous injury to

simple injury in the absence of legal proof thereof.

Accordingly, the finding recorded by the Trial Magistrate

that the accused is guilty of the offence punishable under

Section 326 IPC confirmed by the first Appellate Court

needs an interference in this Revisional jurisdiction on

account of legal infirmity referred to supra. Hence, point

No.1 is answered partly in the affirmative.

16. Insofar as sentence is concerned, since this

Court has scaled down the offence from Section 326 to

Section 324 IPC as discussed supra, and accused/Revision

Petitioner being the first time offender, if the

accused/Revision Petitioner is directed to execute a bond

for a sum of Rs.25,000/- with one surety for the likesum to

the satisfaction of the Trial Court, which shall be in force

for a period of two years for his good behavior and ordered

to pay fine of Rs.20,000/- instead of Rs.5,000/- as

modified by the learned Judge in the first Appellate Court,

ends of justice would be met. Out of the fine amount

recovered, a sum of Rs.15,000/- is ordered to be paid to

PW.1 as is contemplated under Section 357 Cr.P.C., the

injured would also be suitably compensated. Accordingly,

point No.2 is answered and pass the following:

ORDER

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

ii. The order passed by the Trial Magistrate in C.C.No.129/2008 and modified by the learned Judge in the first Appellate Court in Criminal Appeal No.41/2012 is further modified as under:

¾ Accused is convicted for the offence punishable under Section 324 IPC and ordered to execute a bond for a sum of Rs.25,000/- with one surety for the

likesum to the satisfaction of the Trial Court, which shall be in force for a period of two years for his good behavior and ordered to pay fine of Rs.20,000/- on or before 31.01.2022.

¾ Out of the fine amount recovered, a sum of Rs.15,000/- is ordered to be paid as compensation to PW.1 under due identification.

¾ If there is any violation of the bond condition or non-payment of fine amount, the order of the Trial Magistrate and modified by the learned Judge in the first Appellate Court automatically stands restored.