M Ramesh vs State By Bidadi Police
2021 Latest Caselaw 7035 Kant

 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. 180 OF 2012


BETWEEN:


1.    M. RAMESH,
      S/O MUNIYAPPA,
      AGED ABOUT 40 YEARS,


2.    KRISHNA @ KRISHNAMURTHY,
      S/O MUNIYAPPA,
      AGED ABOUT 31 YEARS,
      WORKING AS BMTC
      DRIVER CUM CONDUCTOR,

      BOTH ARE RESIDENTS OF
      VAJARAHALLI VILLAGE,
      BIDADI HOBLI,
      RAMNAGARA TALUK AND DISTRICT.
                                  ...PETITIONERS
(BY SRI. VIKYATH, ADVOCATE FOR
    SRI. S. SHANKARAPPA AND ASSTS)
                             2

AND:
STATE BY BIDADI POLICE
REPRESENTED BY S.P.P.
HIGH COURT BUILIDNG,
BENGALURU.
                                         ...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 DATED 06.10.2008 PASSED BY
THE CIVIL JUDGE (JR.DN) AND JMFC, RAMANAGARAM IN
C.C.NO.216/2006 AND ORDER DATED 17.01.2012 PASSED
BY THE DISTRICT AND SESSIONS JUDGE, RAMANAGARA
IN CRL.A.NO.44/2008.


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

As Sri. Vikyath, learned counsel is representing

for the revision petitioners, learned Amicus Curiae is

discharged.

2. Heard Sri. Vikyath, learned counsel for

revision petitioner and Sri. V.S. Vinayaka, learned

High Court Government Pleader for respondent - State

and perused the records.

3. The present revision petition is filed against

the order passed in C.C.No.216/2006, whereby the

accused-revision petitioners came to be convicted for

the offence punishable under Section 326 and 324 of

IPC which was confirmed in Crl.A.No.44/2008.

4. The brief facts of the case are that:

Upon a complaint lodged by Thulasamma, the

Bidadi Police registered a case in Cr.No.78/2006 for

the offence punishable under Sections 326 and 324

read with 34 of IPC against the revision petitioners.

In the complaint averments, it is contended that the

complainant is residing with her husband -

Rajamurthy-PW3 and brother-in-law - Lakshmana and

his wife. On 18.02.2006 at 7.00 p.m., when the

complainant and other family members were in their

house, the accused Nos.1 and 2 on account of

previous enmity relating to the land dispute, came to

their house and in furtherance of their common

intention, accused No.1 assaulted the complainant

with club on her head, while accused No.2 assaulted

with machete on her left hand causing bleeding injury.

Similarly, they have also assaulted her husband on his

face causing bleeding injury. When her brother-in-law

Lakshmana and sister Bhagyamma tried to intervene

in the quarrel, the accused also dealt blows on their

head and other parts of the body with club and

machete resulting in serious injury and in the

meantime the neighbors and others gathered there

and pacified the quarrel and thus sought for taking

action against the revision petitioners.

5. The Bidadi police after registering the case,

investigated the matter in detail and after thorough

investigation laid a charge sheet against the revision

petitioners for the offence punishable under Section

324 and 326 of IPC.

6. The learned trial Magistrate after taking

cognizance for the aforesaid offences, secured the

presence of the revision petitioners and framed

charge. The accused persons pleaded not guilty and

therefore trial was held. In order to prove the case of

the prosecution, the complainant - Thulasamma,

injured witnesses - Bhagyamma, Rajamurthy,

Lakshmana, Venkatalakshmamma were examined as

PWs.1 to 5, PW- 6 is the panch witness and PW-7 is

the doctor, who issued Exs.P3-P5 and

Hanumantharayappa and Anand were also examined

apart from investigating agency and in all 11

witnesses were examined to substantiate the charges

leveled against these revision petitioners. The

prosecution also relied on nine documentary evidence

comprising of the Wound Certificate issued by PW7

vide Ex.P3 to P6. The prosecution also relied on

the machete and the club which was used in the

incident and marked the same as Material Objects 1

and 2.

7. The complainant and injured witnesses with

graphic details reiterated the contents of the

complaint and the above incident. Despite cross

examination, defence is unable to elicit any material

which would disprove the allegations made by the

complainant in the complaint averments. On

conclusion of the material evidence on record, the

learned Magistrate recorded the accused statement as

contemplated under Section 313 of Cr.P.C., wherein,

the accused persons denied all the incriminatory

circumstances. However, the accused persons failed

to place their version about the incident either by

examining themselves or by placing any written

submission as is contemplated under Section 313(5)

of Cr.P.C.,

8. Thereafter, the learned trial Magistrate

heard the parties in detail and after considering the

oral and documentary evidence on record passed an

order of conviction convicting the accused persons and

sentenced to undergo one year and six months simple

imprisonment with fine of Rs.10,000/- and Rs.5,000/-

each for the offence punishable under Sections 326

and 324 of IPC. Out of the fine amount, a sum of

Rs.9,500/- shall be paid to PW-2 as compensation and

Rs.4,500/- each was ordered to be paid as

compensation to both complainant and Bhagyamma in

a sum of Rs.4,500/- each.

9. Being aggrieved by the same, the accused

- revision petitioners filed an appeal before the District

Court, Ramanagara in CrL.A.No.44/2008. The learned

judge in the First Appellate Court after securing the

records and considering the arguments put forth by

the parties, in the light of the grounds urged in the

appeal, dismissed the appeal filed by the accused by

judgment dated 17.01.2012 whereby the order of

conviction and sentence passed by the Magistrate

stood confirmed. Being aggrieved by the same, the

accused persons are before this Court in this revision

petition.

10. In the revision petition, the following grounds are raised.

x Both the courts below gravely erred in convicting the petitioners for the offences punishable under Section 326 of IPC against petitionoer No.1 and sentenced to undergo S.I. for a period of one year and fine of rupees 10,000/- and both the petitioners are sentenced to undergo S.I. for a period of 6 months and fine of Rs.5,000/- and in default of

payment of fine amount they shall undergo further S.I. for a period of one month and sentence shall run concurrently is manifestly erroneous and opposed to the facts and circumstances of the case.

x Both the courts below gravely erred in holding that, Ex.P1 and 2 said to have been registered on 18.02.2006 at about 8.45 pm by PW-6 but Ex.P1 and 2 received by the jurisdictional magistrate on 20.02.2006 at about 11 am this clearly establish that Ex.P7 the spot Mahazer wherein MO1 and 2 said to have been seized only after the seizure Ex.P1 and 2 have been came into existence and this delay is not at all explained by the prosecution. This important aspect is completely ignored by both the court below.

x Both the courts below gravely erred that even according to prosecution PW-1 to 4 are injured witnesses but these injured witnesses said to have been treated by PW-7 at Bidadi government Hospital and this PW-1 and 2 have got treated by PW-7 on 19.02.2006 at about 6.30 pm and the History given by them before the doctor as per Ex.P3 and 6 respectively is that they have been assaulted by unknown people on 18.02.2006 at about 8.30 pm this important medical contradiction is completely ignored by both the court below.

x Both the courts below gravely erred that, even PW-1 to 5 have clearly admitted in their cross examination that there was a partition between the parents of the petitioner and PW- 1, 3 and 4 have taken place about 30 years back and inspite of that a civil case has been filed by PW-1 to 4 and even before A.C. Courts, it was held in favor of the petitioners.

Even PW-1 to 5 clearly admitted that the Neem tree which is grown in the land of the petitioners which has been cut and removed from their land and where as the neighbors land of the petitioners which is belonging to PW-1 to 4 was sold in the year 1994 itself then the question of Neem tree existence in their land as on the date of 18.02.2006 is completely contrary this important aspect is completely ignored by both the court below.

x Both the Courts below gravely erred that, even PW-7 who treated PW-1 to 3 on 19.2.2006 and till then who treated their injuries there is no explanation from the prosecution and infact the injuries sustained by the PW-1 to 3 are all simple in nature and even PW-7 did not confronted whether the said injuries can be caused by the said MO.1 and 2 and infact injuries sustained by injured in Ex.P3, 4, 5, 6 cannot be caused by said MO.1 and 2. This medical contradiction is not at all appreciated by both the court below.

x Both courts below gravely erred that, even according to prosecution the MO.1 and 2 said to have been kept in the house of PW.1 between 9 am., to 9.45 am., and MO.1 and 2 was produced by PW.1 under Ex.P7 but PW.1 is not a panch to Ex.P7 and those MO1 and 2 kept in the house of PW1 itself, apart from that even the place of occurrence not proved by prosecution and according to prosecution the injured sustained bleeding injuries but the blood stains was not seized and even the witness not spoken about the light inside the house. This important aspect is completely ignored by both the court below.

x Both the Court below gravely erred that, even according to the version of PW-5 that PW-1 to 3 had been to the house of the petitioners to ask about the removal of Neem tree in the land of he petitioner at that time there was a quarrel this clearly establishes a contradiction of version of PW1 to PW5 as to their history given before the doctor and delay of reaching Ex.P1 and 2 to the jurisdictional magistrate this important aspect is completely ignored by both the court below.

x Both the court below gravely erred that, for convicted the petitioner No.1 for the offence punishable under Section 326 of IPC as if PW-2 sustained grievous injuries but the doctor who examined PW-2 on 28.02.2006 who has not produced and X-ray nor PW-7 did not gave any evidence regarding the grievous nature of the injuries still the Court below convicting the petitioner No.1 for offence punishable under 326 of IPC is highly unsustainable in law.

x Both the court below gravely erred that, even though admittedly there was a case and counter case and the case instituted by the petitioners with regard to assault on their father has been closed by filing B report and the police by colluding with the complainant in this case has been falsely implicated the petitioners. This aspect is completely ignored by both the Court below.

x The petitioners further submits that, both the petitioners are married and having school going children and in their absence there is nobody to look after their family this aspect is not at all appreciated by both the courts below.

11. Reiterating the above grounds, learned

counsel Sri. Vikyath, for revision petitioner

representing Sri. S. Shakarappa, vehemently

contended that both the courts have not properly

appreciated the material evidence on record and

wrongly passed an order of conviction resulting in

miscarriage of justice and sought for allowing the

revision petition. Alternatively he contended that

material evidence on record does not warrant

conviction for the offence under Section 326 IPC in the

absence of original X-Ray film produced by the

prosecution or the Radiology report and therefore, the

trial Magistrate ought not to have convicted the

accused for the offence punishable under Section 324

of IPC. Therefore, this Court may scale down from

326 to 324 IPC and grant probation to accused

persons as they are first time offenders.

12. Per contra, learned High Court Government

Pleader supported the impugned judgment by

contending that the injured witnesses have

categorically deposed before the Court about the

incident. He further pointed out the material evidence

on record depict that there was previous enmity

between the parties on account of the land dispute

and on the date of the incident the accused Nos.1 and

2 voluntarily entered the house of the accused and

assaulted Bhagyamma and Rajamurthy, Lakshmana

and Venkatalakshmamma and therefore, the

prosecution is able to prove all ingredients. He

pointed out that wound certificates produced by the

prosecution and marked at Exs.P3 to P6 in respect of

Bhagyamma clearly indicate that injuries sustained by

Bhagyamma is grievous injuries and therefore learned

trial Magistrate is justified in passing an order of

conviction against accused Nos.1 and 2 for the offence

punishable under Sections 324 and 326 IPC and

sought for dismissal of the revision petition.

13. In so far as the alternate arguments are

concerned, learned High Court Government pleader

contended that in every case filing of the X-Ray or

Radiology report is not a must and oral evidence of

Doctor - PW-7, coupled with the wound certificates

issued and marked at Ex.P3 and P6 are enough to

classify the injuries as grievous injuries. Therefore,

sought for dismissal of the revision petition in toto.

14. In view of the rival contentions and having

regard to the limited scope of the revisional

jurisdiction, following points would arise for

consideration:-

i. Whether the finding recorded by the learned trial Magistrate confirmed by the First Appellate Court that the accused persons are guilty of the

offences punishable under Section 324 and 326 IPC is suffering from legal infirmity, patent factual defect or perversity and thus calls for interference?

ii. Whether the sentence is excessive?

15. In the case on hand, the incident that

occurred in the house of complainant - Thulasamma,

who is examined as PW1 on 18.02.2006 at about 7.00

p.m., whereby the accused persons assaulting

Bhagyamma, Raja Murthy, Lakshmana,

Venkatalakshmamma causing bleeding injuries is

established by the prosecution by placing necessary

oral and documentary evidence on record. It is to be

considered that there exists a previous enmity

between the parties in respect of the land dispute. In

furtherance of the same, the accused persons have

voluntarily caused hurt to the above said injured

persons. It is settled principle of law that the oral

testimony of the injured eye witnesses stands on

higher pedestal and accused is required to place such

material on record so as to disbelieve the oral

testimony of the injured eye witness. The cross-

examination of the prosecution witnesses does not

indicate any such material being elicited in such cross

examination whereby the Court can disbelieve the oral

testimony of the injured witnesses. The injuries noted

by the Doctor -PW7, corroborates the incident. The

Wound Certificates marked at Exs.P3- P6 sufficiently

establish the injuries sustained by Bhagyamma and

others in the incident. There is no much delay in

lodging the FIR. All these factors have been rightly

appreciated by the learned trial Magistrate to conclude

tht the accused persons have voluntarily caused hurt

by using M.Os.1 and 2 to Bhagyamma, Raja Murthy,

Lakshmana, Venkatalakshmamma vide Exs.P3-P6.

16. Therefore, absolutely there is no material

on record to hold that the order passed by the trial

Magistrate convicting the accused person is incorrect.

However, it is a legal requirement that the prosecution

in order to classify the injury as grievous injury so as

to prove machete there is no evidence produced such

as X-Ray and radiology report. Failing to do so, the

oral testimony of the Doctor, who classifies the injury

as grievous injury needs to be doubted.

17. In this regard the Division Bench of this

Court in the case of STATE VS. SHEENNAPPA

GOWDA AND ORS reported in 2011(4) KCCR 2759,

carefully considered the said aspect of the matter,

which reads as under:

"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 Indian Penal Code 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".

18. Applying the legal principles enunciated in

the above decision to the case on hand, the trial

Magistrate ought not to have considered the injuries

sustained by Bhagyamma as depicted in Exs.P3-P6 as

grievous injury. Therefore, in the absence of sufficient

evidence, the finding recorded by the learned trial

Magistrate and confirmed by the First Appellate Court

in classifying the injury sustained by Bhagyamma

needs to be interfered and to be scaled down as

simple injury. Consequently, the accused cannot be

convicted for the offence punishable under Section

326 IPC and conviction of the accused under Section

324 needs to be maintained. Accordingly, the point

No.1 is answered 'Partly in the affirmative'.

Regarding Point No.2.

In view of Court's finding on point No.1, scaling

down conviction from 326 to 324 IPC and since the

accused persons are first time offenders, this Court

can very well exercise the power vested in this Court

and grant probation by directing the accused persons

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

one surety for the likesum to the satisfaction of the

trial Magistrate and ordered to pay a fine of

Rs.25,000/- each would meet the ends of justice.

Accordingly, point No.2 is answered in the 'Affirmative'

and pass the following -

ORDER

i. The Criminal revision petition is allowed in part.

The order passed by the learned trial Magistrate confirmed by the First Appellate Court is modified as under:-

a. The accused persons are convicted for the offence punishable under Section 324 IPC and directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the

learned trial Magistrate for their good behavior, which shall be in force for a period of two years from the date of execution of the bond and to pay fine of Rs.25,000/- each for the offence punishable under Section 324 with default sentence of one year simple imprisonment payable on or before 31.01.2022.

b.    Out of the fine amount recovered, a
sum       of    Rs.25,000/-           be      paid      as
compensation          to        Bhagyamma             and

Rs.5,000/- to Rajamurthy, Rs.5,000/- to Lakshmana and Rs.5,000/-to Venkatalakshmamma who are PWs-2 to 5.

c.    The      balance      amount            shall     be
appropriated        to     the        State     towards
defraying expenses.

d.    It is made clear that any violation of

the bond conditions or non-payment of the fine amount, the accused persons shall undergo simple imprisonment for a period of one year.

Ordered accordingly.

Office is directed to return the trial Court records along with a copy of this order forthwith.

Sd/-

JUDGE

AG