Karnataka High Court

Sri. Chikkappa vs State Of Karnataka on 23 December, 2021

Bench: V Srishananda

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF DECEMBER, 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.1245/2012

BETWEEN

1.     SRI. CHIKKAPPA,
       S/O KARIYAPPA,
       AGED ABOUT 55 YEARS,

2.     SRI. MAHALINGAPPA,
       SON OF KARIYAPPA,
       AGED ABOUT 25 YEARS,

3.     SRI. KARIYAPPA,
       SON OF KARIYAPPA,
       AGED ABOUT 35 YEARS,

4.     SRI. SHIVAMMA,
       W/O MAHALINGAPPA,
       AGED ABOUT 22 YEARS,

       THE PETITIONER No.1 TO 4,
       ARE ALL RESIDING AT
       SANNAKITTADAHALLI VILLAGE,
       HOSADURGA TALUK,
       CHITRADURGA DISTRICT - 577 501.
                                         ...PETITIONERS
(BY SMT. P.V.KALPANA, AMICUS CURIAE)
                                  2

AND

STATE OF KARNATAKA,
BY ITS HOSADURGA POLICE,
HOSADURGA.
                                                      ...RESPONDENT
(BY SRI.V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 23.06.2012 PASSED BY THE ADDL. C.J. & JMFC,
HOSADURGA IN C.C.No.287/2008 AND TO SET ASIDE THE
JUDGMENT DATED 21.11.2012 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN
CRL.A.No.59/2012.

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

                            ORDER

Heard Smt.P.V.Kalpana, learned counsel for the

Revision Petitioners and Sri V.S.Vinayaka, learned High

Court Government Pleader for the respondent and perused

the records.

2. This Revision Petition is filed by the

accused/Revision Petitioners, who suffered an order of

conviction in C.C.No.287/2008, on the file of the Additional

Civil Judge & JMFC, Hosadurga by Judgment dated

23.06.2012, whereby they have been convicted for the

offences punishable under Sections 323, 324, 326 and 504

read with Section 34 of IPC, which was modified in

Criminal Appeal No.59/2012, on the file of the Principal

District & Sessions Judge, Chitradurga by judgment dated

21.11.2012.

3. Brief facts of the case are as under:

Upon a complaint lodged by Sri Kariyappa,

Hosadurga Police Station registered a case in Crime

No.138/2008 against the accused persons for the offences

punishable under Sections 326, 324, 323, 504 read with

Section 34 IPC. Upon registration of the case, police

investigated the matter in detail and ultimately laid the

charge sheet against the accused persons for the aforesaid

offences. In the complaint, it is contended that on

14.05.2003 at about 6.30 a.m. at Sannakittadahalli of

Hosadurga Taluk, accused persons in furtherance of

common intention assembled in front of the house of the

Kariyappa and insulted him in filthy language and also

abused his sister and picked up quarrel and assaulted the

complainant with stick on his head and when the others

intervened to rescue the complainant, they also assaulted

the persons, who came for rescuing the complainant.

4. Based on the charge sheet received, learned

Trial Magistrate took cognizance of the offence and

thereafter, secured the presence of the accused persons

and charge was framed. Accused persons pleaded not

guilty and as such, trial was held.

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

prosecution in all examined 11 witnesses as PWs.1 to 11

and relied on 11 documentary evidence, which were

marked and exhibited as Exs.P1 to 11 and material objects

which were marked as MOs.1 to 3 which are clubs and a

stone.

6. PW.1-Kariyappa reiterated the complaint

averments in detail. The injuries sustained by him is

spoken to by Dr.Neeraj,PW-11 as per the wound

certificates marked as Exs.P8 to P11.

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

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

the incriminatory circumstances found in the prosecution

evidence. However, accused persons did not choose to

lead any evidence nor place their version on record by

adducing oral evidence or by filing any written submissions

as is contemplated under Section 313(5) Cr.P.C.

8. Thereafter, learned trial Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

persons for the aforesaid offences and sentenced as under:

"The accused No.1 to 4 are sentenced to undergo, S.I for a period of 2 years, and to pay a fine of Rs.20,000/- each (Rupees twenty thousand only) for the offence punishable under sec. 326 R/W 34 of IPC. In the default of payment of fine further undergo S.I. for a period of 6 months.

The accused No.1 to 4 are sentenced to under go S.I. for a period of one month and to pay a fine of Rs.500/- each (Rupees Five hundred only) for the offence punishable U/Sec. 323 of R/W 34 of I.P.C. In default of paying of fine, further undergo S.I. for a period of 2 months. The accused No.1 to 4 are sentence to undergo S. I. for a period of three months and to pay a fine of Rs.1,000/- each (Rupees One thousand only) for the offence punishable under sec. 324 R/W 34 IPC, In default of payment of fine, further undergo S.I for a period of 3 months.

The accused No.1 to 4 are sentenced to undergo S.I. for a period of two months and to pay a fine of Rs.2,000/- each (Rupees Two thousand only) for the offence punishable u/sec. 504 R/W sc. 34 of IPC. In default of payment of fine, Further undergo a period of two months."

9. Being aggrieved by the same, accused persons

have preferred an appeal in Criminal Appeal No.59/2012.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, partly allowed

the appeal and confirmed the order of conviction and

modified the sentence as under:

"Each of the accused Nos.1 to 4 shall undergo simple imprisonment for two years and pay fine of Rs.10,000/- for the offence under section 326 read with section 34 IPC and in default to pay the fine, they shall undergo further imprisonment for a period of six months.

Each of the accused Nos.1 to 4 shall undergo simple imprisonment for three months and pay fine of Rs.1,000/- for the offence under section 324 read with section 34 IPC and in default to pay the fine, they shall undergo further imprisonment for a period of three months.

Each of the accused Nos.1 to 4 shall undergo simple imprisonment for one month and pay fine of Rs.500/- for the offence under section 323 read with section 34 IPC and in default to pay the fine, they shall undergo further imprisonment for a period of two months. Each of the accused Nos.1 to 4 shall pay fine of Rs.500/- for the offence under section 504 read with section 34 IPC and in default to pay the fine, they shall undergo imprisonment for a period of one month.

Out of the total fine amount of Rs.48,000/-, a sum of Rs.15,000/- is ordered to be paid to each of the grievously injured viz. PW.1-Kariyappa and PW.2 Doddappa; and a sum of Rs.5,000/- to each

of the injured who sustained simple hurts viz. PW.3-Kamakka and PW.4-Erappa, by way of compensation according to the provisions of Section 357 Cr.P.C. The remaining amount of Rs.8,000/- shall go to the State."

10. Being not satisfied with the same, the Revision

Petitioners have preferred this Revision Petition with the

following grounds:

¾ That the judgment of conviction passed by the trial court as confirmed by the appellate court are all unsustainable under law, perverse calling for interference by this Hon'ble Court.

¾ That the appreciation of evidence by trial court are all contrary to law and hence reasoning given are unsustainable calling for interference by this Hon'ble Court.

¾ That Trial court came to conclusion of guilt of the petitioners based on the testimony of PW-1 to 4 and P.W-7, PW-11. It is submitted that PW-1 to 4 are members of same family and it is also admitted fact that they are inimical with the petitioners and petitioners family. That the much reliance was placed on deposition of PW-1 to 4 as it was alleged that they are injured witnesses. It is submitted that though the golden rules that deposition of injured witnesses are to be taken Special Evidence,

however, the while weighing the evidentiary value of it the courts have to have closer analysis of it. In this instant case, the trial court has failed to apply the its mind before accepting deposition of injured witnesses, hence the reasoning of the trial court as well as of appellate court calls for interference by this Hon'ble Court as both courts have accepted merely because they are inured witness without proper analysis of it.

¾ That the trial court proceeded to accept the deposition of PW 7 without properly appreciation of his evidence. It is submitted that PW-7 during course of cross-examination had admitted that there is enmity between petitioners herein and him and also admitted that he is deposing falsely to implicate him under the circumstances the trial court ought to have discarded his evidence in toto, however accepted it without proper appreciation. It is submitted that admitted portion of Deposition of PW-7 is herein below reproduced which is as under:

¾ ನಮಗೂ ಆgÉÆÃ¦ತ ಗೂ ದ ಂದಲೂ ವ ಷಮ ಇ ೆ JAದ ೆ ಸ . ಆgÉÆÃ¦ತ ೆ ೊಂದ ೆ ೊಡವ ಉ ೆ ೕಶ ಂದ ಸುಳ!" ನು#ಯುwÛzÉÝÃ£É ಎಂದ ೆ ಸ . .........& ಸ ೆ 'ಾವ) ೇ *ೇ+ ೆ ೊ,-ರುವ)¢ಲ/.

¾ Hence, under the given circumstances as above the trial court ought to have discarded the entire deposition of PW-7 in view of his admission to the effect that he is giving false evidence. Under the circumstances the finding recorded by the courts below calls for interference by this Hon'ble Court.

¾ That trial court has failed to consider the statement of PW-7 given before respondent police. It is submitted that M.O 1 to 3 are alleged to be produced by PW-7 and not from the spot and not from the possession of petitioners and under the circumstances the very production of material objects becomes doubtful as PW-7 has categorically admitted that he is giving false evidence, and coupled with other materials that that there was no sign nor any recovery from the alleged spot and under the circumstances the trial court ought to have acquitted as very recovery of Materials objects becomes doubtful, hence the reasoning of courts below calls for interference by this Hon'ble Court.

¾ That PW-11 has neither stated in the wound certificate given by him that injuries could be caused by the M.O's produced nor there is any material to indicate that alleged injuries are attributable to the Material objects produced and as such the approach adopted by the courts below in

recording reasoning in this regard calls for interference by this Hon'ble Court.

¾ That the trial court did not consider the deposition of PW-2 who categorically admitted during the course of cross examination as under:

"ಆ ೋ1ತರು ನನ2 ಮತು3 ನನ2 ಮಗನ ಈರಪ6ನ 7ರುದ8 ದೂರನು2 PÉÆnÖgÀÄvÁÛgÉ ಎಂದ ೆ ಸ , ಅ ೋ1ತರು ನಮ: 7ರುದ8 ದೂರು ೊಟ- ಾರಣ =ಾವ) ಈ ದೂರನು2 ೊ,-ರುvÉÛÃªÉ ಎಂದ ೆ ಸ .

ಗ>ಾ?ೆ'ಾ ಾಗ =ಾವ) ೪ ಜನ BಾತC ಇ ೆ ೕವ) Dೇ ೆ ಜನ Eೇ ರ ಲ/."

That above admission of PW-2 is very clearly indicates that since petitioners herein have lodged a complaint against them as such they have also lodged the complaint and very basis of lodging complaint is nothing but due to enmity between them under the circumstances the trial court ought to have rejected the case of prosecution by not doing so there occasion miscarriage of justice calling for interference by this Hon'ble Court.

¾ Further in view of deposition of PW-2 the presence of petitioners herein at the alleged scene of incidence becomes doubtful and trial court did not consider these aspect which recording reasoning and merely accepted the prosecution case without being considerate of the materials brought out

during course of cross-examination hence the judgment of conviction calls for interference by this Hon'ble Court.

¾ That the trial court failed to consider the deposition of PW-4 who stated during course of cross- examination as under:

"೧=ೇ ಆ ೋ1 GಕIಪ6 ನನ2 ತಂ ೆ ಾJ, ನನ2 ತಮ:ನ Kೕ>ೆ ೊರನು2 ೊ,-ದು ಸದ ೇLನ 7MಾರNೆ ಇOೇ £ÁåAiÀiÁ®AiÀÄದ / ನPೆJತು ಎಂದ ೆ ಸ . ಸದ ೇLನ / ವQೕಲ ಾದ ಕಂDೆಶ ಾR Bಾ#Lದರು ಎಂದ ೆ ಸ . ಸದ ೇLನ / ೧=ೇ ಅ ೋ1 GಕIಪ6 'ಾವ) ೇ ಗ>ಾ?ೆ ಆSಲ/ ಎಂದು *ೇ+ ೆ ೕ#ದ ಎಂದ ೆ ಸ ."

In view of above admission of PW-4, presence of Accused NO.1 becomes doubtful and hence the conviction of them is not at all sustainable under law..

¾ That PW-4 during examination in chief itself has stated as under:

"ನನ2 ತಮ: ಕ ಯಪ6 ೆ ೧=ೇ ಅ ೋ1 ೈJಂದ *ೊPೆಯುU3ದ. =ಾನು ಆ ೊ1ತರನು2 KPÉ *ೋPೆಯುU3ೕ'ಾ ಎಂದು ಪCV2L ೆ. ೩=ೇ ಅ ೋ1 ಕ ಯಪ6 ಕ / ಂದ ನನ2 ತ>ೆ ೆ *ೊPೆದನು. ಅಗ £Àö£Àß vÀAzÉ C°èUÉ §AzÀgÀÄ. 1£ÉÃ DgÉÆÃ¦ aPÀÌ¥Àà PÉÆÃ°¤AzÀ £À£Àß vÀAzÉUÉ ºÉÆqÉzÀgÀÄ."

That in view of above deposition it becomes difficult to hold that A-3 has hit PW-2 with stick and the entire deposition PW's are full of contradiction and therefore trial court ought have rejected entire deposition by not

doing so there occasioned miscarriage of justice calling for interference by this Hon'ble Court.

¾ That conviction of A-4 for the offences alleged under Section 326 I.P.C on the face of it is unsustainable under law as only allegation as against her is she trampled the PW and there allegation of using of any of the objects by the prosecution and entire approach of the courts below is not sustainable under law calls for interference by this Hon'ble Court.

¾ That the trial court has failed to consider that it is only after lodging complaint against PW-1 to 4, they have lodged counter complaint. Further, it is also admitted that case filed against them were compromised and under the circumstances the trial court ought have discarded the entire evidence prosecution as continuation proceedings against the petitioner who have agreeably compromised with the complainant and his family members is nothing but mode of wrecking vengeance against them after making them to believe that entire dispute is settled and as such courts below have failed in considering the circumstances in its entirety and hence it calls for interference by this Hon'ble Court.

¾ That even otherwise the approach adopted by the courts below are all illegal, perverse, calling for interference by this Hon'ble Court.

¾ That petitioner craves leave of this Hon'ble Court to urge such other additional ground or grounds at the time of arguments.

¾ The petition filed is in time.

¾ That petitioner has not preferred any petition or other proceedings challenging the impugned Judgments except in this petition."

During the pendency of this Revision Petition, learned

counsel for the Revision Petitioners remained absent and

therefore, this Court by order dated 26.11.2021, appointed

Smt. P.V.Kalpana as Amicus Curiae to assist the Court.

Learned Amicus Curiae while reiterating the grounds urged

in the Revision Petition contended that the materials on

record is not sufficient enough to maintain the order of

conviction as is recorded by the learned Trial Magistrate

and modified by the first Appellate Court and sought for

allowing the revision petition. She also contended that

materials on record at the most may warrant a conviction

under Sections 323 and 324 IPC and in the absence of X-

ray film or radiological report furnished by the prosecution

and relied on in the evidence and therefore, sought for

passing appropriate sentence in the event this Court come

to the conclusion that the accused persons are guilty of the

offences under Sections 323 and 324 IPC.

11. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that the material evidence on record clearly establish that

the accused persons are assembled in front of the house of

Kariyappa and picked up quarrel and assaulted him. The

materials on record is sufficient enough to classify the

injuries sustained by Kariyappa and others as grievous

injury and therefore, the grounds urged in the Revision

Petition has no merit and sought for dismissal of the

Revision Petition.

12. 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 323, 324, 326 and 504 read with Section 34 of 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?"

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

on 14.05.2003 at about 6.30 a.m., at Sannakittadahalli

Village, in front of the house of Kariyappa, wherein

accused persons voluntarily picked up quarrel with

Kariyappa and others and assaulted Kariyappa and others

during the incident with MOs.1 to 3 stands established by

placing oral and documentary evidence on record.

Admittedly, there was an incident, whereby the accused

persons were abusing the sister of the complainant over

telephone in filthy language. In pursuance of the same, the

incident has occurred. The materials on record clearly

indicate that the injured eye witness has spoken about the

incident with graphic details. The detail cross examination

on behalf of the defence did not yield any material to

disbelieve the testimony of the injured eye witnesses. The

investigating agency has also derived support from the

spot mahazer where under material objects as MOs. 1 to 3

have been seized. So also, the version of PW.1 is

corroborated by the oral testimony of Doctor, who has

issued the wound certificate vide Exs.P8 to P11. Under

these circumstances, learned Trial Magistrate was justified

in recording an order of conviction against the accused

persons. However, in the wound certificate, for

classification of the injury as a grievous injury, the

prosecution did not place X-ray films or radiological report

so as to attract the offence under Section 320 IPC,

whereby the accused could be convicted for the offence

punishable under Section 326 IPC. 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".

14. Applying the legal principles enunciated in the

above decision to the case on hand, this Court is of the

considered opinion that the finding recorded by the learned

Trial Magistrate and learned Judge in the first Appellate

Court that the accused persons are guilty of the offences

punishable under Section 326 IPC cannot be countenanced

in law and same needs to be interfered in the revisional

jurisdiction. Accordingly, point No.1 is answered partly in

the affirmative.

15. This Court having held supra that action

attributable to the accused cannot be one under Section

326 IPC since Kariyappa and others have sustained

bleeding injuries, the action that would be attributable to

the accused is to be scaled down from 326 IPC to 324 IPC.

The materials on record does not depict that the accused

persons are having criminal antecedents. Admittedly, they

are the first time offenders. Therefore, this Court is of the

considered opinion that granting probation to the accused

persons by directing them to execute a bond for their good

behavior and directing them to pay the enhanced fine

amount and out of which, portion of amount is ordered to

be paid as compensation to the injured persons, would

meet the ends of justice. Accordingly, point No.2 is

answered partly in the affirmative and pass the following:

ORDER

i. The Criminal Revision Petition is allowed-in-

part.

ii. The order passed by the learned Trial Magistrate and modified by the learned Judge in the first Appellate Court is further modified as under:

¾ Accused persons/Revision Petitioners are convicted for the offence punishable under Section 324 IPC and directed to execute a bond for a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Magistrate, which shall be in force for a period of two years for their good behavior and to pay fine of Rs.25,000/- each for the offences punishable under Sections 323 and 324 IPC.

¾ Out of the fine amount recovered, a sum of Rs.20,000/- each is ordered to be paid as compensation to PWs.1 to 4 and balance amount of Rs.20,000/- shall be vest with the State towards defraying expenses. ¾ It is made clear that if any violation of the bond condition and non payment of the fine amount, the accused persons shall undergo imprisonment for a period of one year.