Karnataka High Court

Jemya Naika vs The State Of Karnataka on 23 December, 2021

Bench: V Srishananda

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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.1246/2012

BETWEEN:

JEMYA NAIKA
S/O CHANDRANAIKA
AGE : 28 YEARS,
OCC : COOLIE
R/O MALAVAGOPPA,
THANDA STREET,
SHIMOGA - 577 201.
                                    ... PETITIONER

(BY SRI.B.S.PRASAD, ADVOCATE)

AND:

THE STATE OF KARNATAKA BY
TUNGANAGAR POLICE STATION,
SHIMOGA.
                                    ...RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 OF CR.PC PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 17.11.2012
PASSED BY THE P.O., F.T.C-II, SHIMOGA IN CRL.A
NO.89/2012 AND ACQUIT THE PETITIONER.
                                  2

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

                            ORDER

Though the matter is listed for orders, with the

consent of the parties, the matter is heard and taken up

for disposal.

2. The accused who suffered an order of

conviction in Criminal Appeal No.89/2012 upon the appeal

filed by the State challenging the order dated 18.10.2011

passed in C.C No.1355/2010 is before this Court in this

revision.

3. The brief facts of the case are as under:

The accused was charge sheeted for the offence

punishable under Sections 504, 323, 326, read with 34 of

IPC. The charge sheet material reveals that accused

persons including the revision petitioner were residing in a

house situated behind the house of the complainant in

respect of the backstab there was a dispute. In pursuance

of the said dispute, on 20.04.2010 at about 9.30 a.m there

was an altercation wherein the accused persons formed

unlawful assembly and assaulted the complainant-CW1-

Shantha Bai and abused her in filthy language and thereby

there was a deformity in the right hand wrist.

4. After receipt of the charge sheet, presence of

the accused was secured by the learned Magistrate and

charge was framed. Accused pleaded not guilty and as

such, trial was held.

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

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

and relied on documentary evidence which were marked

and exhibited as Exs.P1 to P6 and material object namely

a club was marked as MO1.

6. On conclusion of the prosecution evidence,

accused statement as is contemplated under Section 313

Cr.P.C was recorded, wherein the accused persons pleaded

not guilty. Thereafter, learned Magistrate heard the

parties in detail and by order dated 18.10.2011 acquitted

all accused persons for all the charges. Being aggrieved

by the same, State preferred an appeal before the District

Court in Crl.A No.89/2012. The learned Judge in the First

Appellate Court after securing the records from the trial

Court, heard the parties in detail in the light of the grounds

urged by the State opposing the order of acquittal. By

judgment dated 17.11.2012, the learned Judge in the First

Appellate Court maintained the acquittal order in respect of

accused Nos.2 to 5 however, convicted the accused No.1

for the offence punishable under Sections 326 of IPC and

ordered to undergo simple imprisonment for a period of six

months and to pay a fine of Rs.5,000/- and out of fine

amount, 50% was ordered to pay as compensation to the

victim-Shanthibai. In default of payment of fine,

sentenced to undergo simple imprisonment for three

months. Being aggrieved by the same, accused is before

this Court in the revision petition.

7. In the revision petition, the following grounds

have been raised:

1. The conviction and sentence passed by the learned Sessions Court is contrary to law, evidence on record and probabilities of the case.

2. That the learned Sessions Court has not considered the facts and circumstances of the case in proper prospective.

3. That judgment of the learned Sessions Court is illegal arbitrary, capricious and opposed to sound principles of law.

4. That the learned Sessions Court has committed serious error in convicting the petitioner when the prosecution has failed to prove the guilt of the petitioner.

5. That the learned Sessions Court ought to have taken into consideration that the prosecution has miserably failed to prove the case beyond all reasonable doubt.

6. That the learned sessions Court has committed serious error in relying on interested testimony of Pw's 1 to 6 when their evidence is not corroborated by independent evidence.

7. That the learned Sessions Court has committed serious error in relying on the sole evidence of Pw-3 when her evidence is full of material omissions, contradictions, not cogent and reliable.

8. That the learned sessions court has committed serious error in holding that there

was motive on the part of the petitioner to commit alleged offence. In the facts and circumstances and evidence of prosecution witness it can be inferred that there was ill-will between PW-3 and petitioner and by concocting a false incident through PW 3 petitioner has been implicated in the alleged incident. Further learned Sessions Court ought to have discarded the evidence of PW3 since there is long delay in recording his statement and this delay has been conveniently used by the interested persons.

9. That learned Sessions Court has committed serious error in relying on recovery when the seizer witness PW1 and 2 have stated that mahazar was conducted in police station and at the instance of the police they signed the mahazar.

10. That the learned Sessions Court has erred in convicting the petitioner since PW 1 and 2 have not supported the case of the prosecution who alleged to be a panch witness.

11. That the learned Sessions Court ought to have seen that PW-3 to 6 are interested witnesses, their evidence is not corroborated to each other and is full of omissions, contradictions and material omissions. The trial court has erred in convicting the petitioner upon the evidence of Pw-3 to PW-6.

12. That the learned sessions court ought to have seen that evidence of PW3 is contrary to contents of wound certificate. There is no X-ray report in the case of the prosecution. There is no proper explanation by PW3 for long delay which seriously doubts the genesis of

alleged incident. Thus petitioner is convicted upon the evidence of PW3 to 6 which is highly motivated and made after due deliberation with the connivance of interested persons which is bad in law. Under these circumstances the case of the prosecution is itself in doubtful and courts below ought to have given benefit of doubt to the petitioner and acquitted him.

13. That learned Sessions Court has acquitted the Petitioner on the ground that there is no evidence to connect the petitioner with alleged incident.

14. That the learned Sessions Court should have discarded the evidence of alleged eye witness/PW-6 on the ground that there are uncorroborated versions in his statement.

15. That the learned Sessions Court ought to have discarded the prosecution case against the petitioner on the ground that prosecution has not produced X-ray report or treatment done to PW6 by the hospital to attracted ingredients of Section 326 IPC. Courts below have erred in convicting the petitioner for the offences punishable under Section 326 IPC in the absence of material documents except marking of wound certificate/ExP3 issued by PW7/doctor whose evidence does not establish the offence beyond all reasonable doubt.

16. That the leaned Sessions Court has committed serious error in shifting the burden of proving prosecution case on petitioner which is against the principles of criminal jurisprudence. Further prosecution has failed to bring home the ingredients of Sections 326 IPC against the

petitioner as alleged. Hence the conviction of petitioner in the facts and circumstance of the case is liable to be set-aside.

17. That learned Sessions Court has committed serious error in convicting the petitioner for an offence punishable under Section 326 of IPC when prosecution has failed to adduce any cogent and reliable evidence in that regard.

18. That the learned Sessions Judge has erred in modifying the judgment of acquittal of trial without assigning any valid reasons.

19. That the learned Sessions Court has given benefit to the accused No.2 to 5 and the same benefit ought to have been given to the petitioner also.

20. That the learned Sessions Court ought to have accepted the defense of the petitioner and acquitted him.

21. That entire approach of the case by the learned Sessions Court is erroneous, misconceived and the same has resulted in mis- carriage of justice."

8. Re-iterating the above grounds,

Sri.B.S.Prasad, learned counsel for the revision petitioner

sought for allowing the revision petition.

9. Sri.B.S.Prasad, learned counsel contended that

in the event this Court is upholding the finding recorded by

the learned Magistrate, taking note of the fact that there is

no X-Ray certificate or the Radiological report filed by the

prosecution, the offence under Section 326 of IPC is scaled

down to Section 324 of IPC and if the accused is a first

time offender, he may be granted probation by awarding

suitable fine amount and sought for allowing the revision

petition.

10. Per contra, learned HCGP supported the

impugned judgment by contending that the learned Judge

in the First Appellate Court was justified in re-appreciating

the material evidence on record especially the oral

testimony of the injured eyewitness Shanthibai who was

examined as PW3 and taking note of the wound certificate

produced by the prosecution and issued by P.W-7-

Dr.Dhananjaya and this injury being classified as grievous

injury, the First Appellate Court was justified in recording

the order of conviction under Section 326 of IPC and

sought for dismissal of the revision petition.

11. In view of the rival contention, having regard

to the scope of the revision petition, the following points

would arise for consideration:

1. "Whether the finding recorded by the learned Judge in First Appellate Court in Crl.A. No.89/2012 that accused No.1 who is the revision petitioner is guilty of the offence punishable under Section 326 of IPC is suffering from legal infirmity, error of jurisdiction and perversity and thus calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, the incident was occurred

on 20.04.2010 at about 9.30 a.m in the backyard site of

the complainant's house in respect of the previous enmity

whereby Shanthibai sustained injuries by the assault made

by the revision petitioner with MO1-club stands established

by placing necessary oral and documentary evidence on

record. The material evidence on record especially oral

testimony of the complainant coupled with the medical

evidence in the form of Wound Certificate produced by

P.W.7 who unequivocally deposed before the Court the

examination of PW3 and noting the injuries on the right

hand wrist of Shanthibai stands established by taking

necessary oral and documentary evidence on record.

Admittedly, PW7 did not nurture any previous enmity or

animosity against the accused or for that matter extra

affinity to PW3 to give a false certificate in favour of the

prosecution. In the cross-examination of Shanthibai,

Doctor and the Investigation Agency, there is no material

elicited to show that based on a false incident, a false

prosecution has been launched. The material evidence on

record was reappreciated by the learned Judge in the First

Appellate Court having regard to the scope of the appeal.

There is no bar that in every case there will be an order of

acquittal appealed against and the Appellate Court is

bound to confirm the order of acquittal.

13. It is well established principles of law that in

every case where the duly constituted Court records an

order of acquittal, the innocence of the accused stands

reinforced. However in a given case, if the material

evidence on record is not properly appreciated by the trial

Court, it is always open for the First Appellate Court to

interfere with the findings recorded by the learned

Magistrate despite the fact of innocence enjoyed by the

accused. In this regard, this Court places reliance on the

judgment in the case of CHANDRAPPA & OTHERS v.

STATE OF KARNATAKA reported in (2007) 4 SCC 415.

Therefore, the learned Judge in the First Appellate Court

was justified in reappreciating the material evidence on

record and holding that accused No.1 is guilty of the

offences alleged against him.

14. However, whenever an injury is to be classified

as grievous injury, prosecution is expected to place

necessary oral or documentary evidence on record. In the

case on hand to classify the injury sustained by PW3 which

is recorded in Ex.P3 by PW7, there is no base material

namely X-Ray certificate or the Radiological report. In the

absence of base material, classifying the grievous injury

only on the oral testimony of PW7 is incorrect. In this

regard, this Court places reliance on the judgment of the

Division Bench of this Court in the case of STATE v.

SHEENAPPA GOWDA AND OTHERS reported in

2011(4) KCCR 2759 (DB) at paragraph 11 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 reasonable 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.

Applying the legal principles enunciated in the above case

to the case on hand, the learned Single Judge in the First

Appellate Court without there being a base material on

record classifying the injury as grievous injury as is found

in Ex.P3 sustained by PW3 cannot be sustained and

therefore, the offence alleged against accused No.1

necessarily needs to be scaled down from Section 326 of

IPC to Section 324 of IPC. Accordingly, point No.1 is

answered partly in the affirmative.

15. Regarding point No.2, since this Court has

scaled down the offence committed by the accused No.1-

revision petitioner from Sections 326 to 324 of IPC and in

the absence of any criminal antecedents and accused No.1

being first time offender, this Court is of the considered

opinion that accused No.1 is entitled for grant of probation.

Accordingly, if accused No.1-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 learned

Magistrate for his good behavior itself imposed for a period

of 2 years and directed to pay fine amount of Rs.10,000/-

inclusive of the fine amount of Rs.5,000/- ordered by the

learned Magistrate, justice would be met. Out of the fine

amount recovered a sum of Rs.8,000/- is ordered to be

paid as compensation to the dependents of Shanthibai who

is now said to be dead, the ends of justice would also be

met and the purpose of Section 357 of Cr.P.C would be

achieved. Accordingly, point No.2 is answered and

following order is passed:

ORDER

1. Revision petition is allowed in part.

2. The order passed by the learned Judge in the First

Appellate Court in Crl.A No.89/2012 is modified as

under:

a) Accused No.1-revision petitioner is convicted

for the offence punishable under Section 324

of IPC and ordered to execute a bond in a sum

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

to the satisfaction of the learned Magistrate for

his good behavior for a period of 2 years on or

before 31.01.2022 and to pay a fine of

Rs.10,000/- inclusive of the fine amount of

Rs.5,000/- imposed by the First Appellate

Court. Out of the fine amount recovered,

Rs.8,000/- to be paid to the dependents of the

complainant-Shanthibai under due

identification

Ordered accordingly.