Lokesha vs The State Of Karnataka
2022 Latest Caselaw 5914 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 1St DAY OF APRIL, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.730/2015

BETWEEN

1 . LOKESHA
    S/O PUTTASWAMY
    AGED ABOUT 38 YEARS
    R/AT MADAIAHNA HUNDI VILLAGE
    NANJANGUD TALUK
    MYSURU DISTRICT-571312

2 . PRABHUSWAMY
    S/O MALLASWAMY
    AGED ABOUT 28 YEARS
    R/AT MALLARAJA HUNDI VILLAGE
    NANJANGUD TALUK
    MYSURU DISTRICT-571312

3 . HARISHA
    S/O PUTTTANNA
    AGED ABOUT 22 YEARS
    R/AT MADAIAHNA HUNDI VILLAGE
    NANJANGUD TALUK
    MYSURU DISTRICT-571312

4 . VRISHABENDRA @ VIRSHABENDRA
    S/O MALLASWAMY
    AGED ABOUT 22 YEARS
    R/AT MALALRAJA HUNDI VILLAGE
    NANJANGUD TALUK
    MYSURU DISTRICT-571312
                               2



5 . PRAKASHA
    S/O PUTTASWAMY
    AGED ABOUT 25 YEARS
    R/AT MADAIAHNA HUNDI VILLAGE
    NANJANGUD TALUK
    MYSURU DISTRICT-571312
                                              ...PETITIONERS
(BY SRI G B SHARATH GOWDA, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY THE POLICE OF
NANJANGUD RURAL POLICE STATION
MYSORE DISTRICT-571312
                                              ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)


     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED 3.9.2012
PASSED BY THE LEARNED CIVIL JDUGE & JMFC, NANJANGUD IN
C.C.NO.1554/2009 AND ETC.


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


                         ORDER

Heard the learned counsel appearing for the petitioners

and the learned High Court Government Pleader appearing for

the State.

2. The factual matrix of the case is that on 21.08.2019

at about 1.00 p.m., near the land of Koththi Puttaiah at

Kempisiddanahundi village, with common intention, all the

accused persons formed an unlawful assembly holding deadly

weapons like chopper and machchu and committed an offence of

rioting against PW1 and accused No.1 wrongfully restrained PW1

when he was proceeding in the motorcycle and caused grievous

hurt to PW1 by chopper, as a result, PW1 had sustained injury to

his right middle finger, accused Nos.3 to 5 caused simple injuries

by chopper to the right foot, left arm and right elbow of PW1 and

also intimidated PW1 with an intention to cause alarm to PW1.

Based on the compliant, the police have registered the case for

the offences punishable under Sections 143, 147, 148, 341, 326,

324 and 506 read with Section 149 of IPC. The injured was

taken to the hospital and took treatment firstly at Nanjangud

hospital and thereafter at K.R.Hospital, Mysuru for a period of 16

days. The police after the completion of the investigation,

charge-sheet has been filed. Accused persons have not pleaded

guilty and hence, the prosecution in order to prove its case,

examined the eleven witnesses as PW1 to PW11 and got marked

the documents at Ex.P1 to P8 and also marked MO1 - three

choppers. The petitioners have not led any defence evidence.

The Trial Court after considering both the oral and documentary

evidence convicted and sentenced the petitioners herein for all

the offences. Being aggrieved by the order of the Trial Court, the

petitioners have preferred an appeal in Crl.A.No.150/2012 and

the Appellate Court also on re-appreciation of both the oral and

documentary evidence, confirmed the order of the Trial Court

and dismissed the appeal. Hence, the petitioners have filed the

revision petition before this Court.

3. The learned counsel appearing for the petitioners

would vehemently contend that the Trial Court as well as the

Appellate Court have committed an error in convicting the

petitioners and also not properly appreciated the evidence on

record and even the prosecution has not placed any cogent

material to prove that these petitioners have committed the

alleged offences. The counsel also would vehemently contend

that though the case of the prosecution is that PW1 has

sustained injuries and fracture, in order to prove the same, x-ray

is not marked before the Trial Court and inspite of that both the

Courts have committed an error in convicting the petitioners

herein. The counsel in support of his arguments, he relied upon

the decision of the Division Bench this Court reported in (2011)

4 KCCR 2759. The counsel referring the said judgment

vehemently contend that this Court in paragraph 18 made an

observation that it is the duty of the prosecution to place the x-

ray to prove the factum of fracture and only the doctor on

clinical examination of the injured, gave the opinion that he had

suffered with the fracture.

4. Regarding sentence part is concerned, the counsel

for the petitioners would contend that the Trial Court has

committed an error in imposing the sentence for a period of two

years for the offence punishable under Section 506 of IPC with

fine and sentenced for a period of one year the offence

punishable under Section 324 of IPC with fine and for a period of

one year for the offence punishable under Section 148 of IPC

along with fine and the same is also not considered by the

Appellate Court.

5. The learned counsel appearing for the petitioners

further submits that except the evidence of PW1, no other

witnesses have supported the case of the prosecution and the

Trial Court and the Appellate Court have considered only the

evidences of PW1, PW6 and PW9 and the nature of the injury is

also only a fracture to the middle finger not on any vital part of

the body and the same will not affects the life of the victim and

same also not been considered by the Trial Court. The counsel

further submits that the motivation for committing the offence

also, there was a civil dispute between the parties and the same

is admitted in the cross-examination that there was an enmity

between them. Hence, it is clear that with an intention to

implicate these petitioners, a case has been registered taking an

advantage of the injury sustained by PW1 selsewhere. The

counsel also submits that in the medical evidence also, same is

elicited with regard to sustaining of the said nature of injuries.

6. Per contra, the learned High Court Government

Pleader appearing for the State would submit that the injured

PW1 was examined before the Trial Court and his evidence is

consistent with regard to the incident is concerned. Even PW2

who was along with PW1, not supported the case of the

prosecution. The counsel would submit that other witnesses have

categorically deposed that one women rushed to these witnesses

and gave the information that some persons are trying to take

away the life of PW1 and with that information, they went to the

spot and they are not the eye-witnesses to the alleged incident

and their evidences are circumstantial evidences and apart from

that the evidence of PW6 and PW9 the doctors who treated the

injured corroborates with the case of the prosecution and

particularly the evidence of PW1. Hence, there are no grounds

to interfere with the finding of the Trial Court and the Appellate

Court also in detail even extracting the evidence of witnesses

confirmed the judgment of the Trial Court. Hence, it does not

requires interference of this Court.

7. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record, the

points that would arise for consideration of this Court are:

(1) Whether the Trial Court has committed an

error in accepting the evidence of PW1 and

other witnesses and erroneously convicted

the petitioners for the charges leveled

against them?

(2) Whether the Appellate Court also

committed an error in confirming the

judgment of the Trial Court and whether

this Court can exercise the revisional

powers in respect of conviction as well as

sentence?

(3) What order?

Points No.1 and 2:

8. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record, it

discloses that, it is the case of the prosecution that on

21.08.2009 at about 1.00 p.m. when PW1 coming along with

PW2 in the motorcycle, all these petitioners have wrongfully

restrained PW1 and started abruptly assaulting him and

witnessing the same, PW2 escaped from the spot and informed

to the other witnesses and these petitioners after inflicting injury

with chopper and club, left the place. The injured - PW1 who

has been examined before the Trial Court reiterated his evidence

that all these petitioners have wrongfully restrained him and

assaulted him. PW1 categorically deposed that accused No.1

inflicted injury with chopper on his right shoulder and other

accused - Prakash also assaulted with chopper and other

accused persons assaulted with club and all of them left the

place in coming to the conclusion that PW1 has lost his breath.

It is his evidence that one Shambhu who was coming there, took

him to the Nanjangud hospital and thereafter, he was shifted to

the K.R.Hospital, Mysuru. He also identified his signature on the

complaint - Ex.P1 and also he identified MO1. In the cross-

examination, no doubt, it is elicited that there were cases

between the complainant and the accused persons and they

were not in cordial terms. It is suggested that the house of PW1

and petitioner No.2-Prabhuswamy are located by the side of the

each house and the same was denied. But he categorically

admits that the issue is with regard to the bath room. It is

suggested that there was an ill-will and said suggestion was

denied but he claims that in connection with his mother,

frequent galata was taking place. In the cross-examination

suggestion was made that not inflicted the injured with chopper

and said suggestion was denied. No doubt, PW2 not supported

the case of the prosecution and she completely turned hostile to

the case of the prosecution. PW3 says that a women suddenly

rushed to the spot and stated that some persons are going to

takeaway the life of PW1 and sought help to pacify galata. But

the persons who were there at the spot, ran away from the spot

and found injured at the spot and not found any weapons at the

spot or the accused persons. Hence, this witness also turn

hostile to the case of the prosecution.

9. PW4 is also another witness and he also deposed

that one Ratnamma came and told that some persons were

assaulting PW1 and sought for help, hence, he went and gave

water and PW2 gave water to the injured. This witness also

turned hostile in part. PW5 also categorically says that when he

went to the spot, no assailants were there at the spot. PW6 is

the doctor who treated the injured at K.R.Hospital and he says

that x-ray was taken and in terms of x-ray, it discloses that PW1

had sustained fracture to his middle finger. In the cross-

examination, only suggestion was made that if any person

forcibly falls on the hard surface, the said injury could be caused.

PW7 is only hearsay witness, he claims that the injured informed

about the assault. PW8 is the scribe at Ex.P1 and he wrote the

same as per the police instructions. PW9 is the doctor who

treated at the first instance at Nanjangud hospital and he

mentions that as per the history, Lokesh, Prakash and

Prabhuswamy assaulted the injured and also mentioned the

nature of the injuries and he says that immediately after the first

aid, he was sent to the K.R.Hospital and x-ray discloses the

fracture and the injuries are simple in nature. In the cross-

examination, he deposed that if any person falls on the sharp

edge object, there are chances of sustaining the similar type of

injuries. He also admits that police have not accompanied with

the injured. PW10 is the Investigating Officer who conducted

the investigation and PW11 is the mahazar witness, he says that

he does not know what they have written in the spot mahazar.

10. Having considered the evidence available on record

particularly, PW1 only speaks with regard to the assault made by

these petitioners with chopper and club. PW2 not supported the

case of the prosecution and other circumstantial witnesses i.e.,

PW3 to PW5 speaks with regard that PW2 rushed to them and

sought for help stating that some persons were assaulting PW1

but they are not the eye-witnesses, they are circumstantial

witnesses. Apart from that the evidences of PW6 and PW9 are

clear that PW1 though sustained fracture as well as simple

injuries - report of the K.R. Hospital discloses that injured was in

the hospital from 21.08.2009 to 06.09.2009 as per Ex.P6.

Hence, it is clear that he was inpatient for a period of 16 days

and wound certificate at Ex.P8 discloses that the fracture on

right middle finger and hence, it is clear that there is a fracture

in the right middle finger. It is the contention of the counsel for

the petitioners that when x-ray is not produced, the question of

considering the fracture does not arise. In support of his

contention, he relied upon the judgment of Division Bench of this

Court reported in (2011) 4 KCCR 2759 and no doubt, the

Division Bench of this Court in paragraph 18 made an

observation regarding non-production of x-ray. But in the case

on hand, it is observed that evidence of PW9 only shows that

there was injury as mentioned at Ex.P8 and when PW9

suspected such fracture, he ought not to refer the injured to the

higher centre. PW6 after taking x-ray confirmed that there was

fracture. But here it is a case that he not only suspecting the

fracture but also referred the injured to the higher centre.

Evidence of PW6 that he has taken the x-ray and confirms the

fracture and hence, the very citation will not comes to the aid of

the petitioners. No doubt, it is the duty of the prosecution to

produce x-ray but in the case on hand, witnesses who have been

examined i.e., PW6 and PW9, categorically deposed that x-ray

was taken and based on the x-ray report, they came to know

that PW1 was sustained the fracture and same is evident in the

document at Ex.P6 as well as Ex.P8 - wound certificate issued by

both the hospital i.e., at Nanjangud hospital and K.R.Hospital at

Mysuru where he took the treatment for a period of 16 days.

11. Having considered the evidence of PW1 and apart

from that medical evidence of PW6 and PW9 as well as the other

circumstantial witnesses, though PW2 turned hostile, the

evidence of PW4 that PW2 rushed to them and sought for help to

rescue the injured and these are the materials considered by the

Trial Court. The Trial Court also in page Nos.24 and 25

considered the evidence available on record and the weapon

used in inflicting the injury and also on taken note of the nature

of injuries found at Ex.P8 which are cut lacerated wound and

also the evidence of PW1 that the petitioners have inflicted him

with chopper and oral evidence corroborates with the

documentary evidence at Ex.P6 and P8. But the Appellate Court

also on re-appreciation of both oral and documentary evidence,

in detail considered the matter given anxious consideration

meticulously and even extracted the evidence of witnesses and

also the documents and rightly came to the conclusion that the

prosecution has proved the case against the petitioners stating

that they formed an unlawful assembly and wrongfully restrained

PW1 and inflicted injury with chopper and also sentence was also

confirmed having considered the material available on record

and also on considering the reasons given by the Trial Court.

Hence, I do not find any error committed by both the Courts.

Both the Courts have given anxious consideration to both the

oral and documentary evidence. This Court can exercise the

revisional jurisdiction only if perverse finding are given by both

the Courts or otherwise there is no ground to interfere with the

finding of both the Courts. Hence, I do not find any error in

appreciation of both the oral and documentary evidence by both

the Courts.

12. Now coming to the sentence part is concerned, the

Trial Court sentenced for the petitioners to undergo simple

imprisonment for six months and fine of Rs.1,000/- each for the

offence punishable under Section 143 r/w Section 149 of IPC;

one year rigorous imprisonment for the offence punishable under

Section 148 r/w Section 149 of IPC with fine of Rs.1,000/- each;

one month simple imprisonment and fine of Rs.500/- each for

the offence punishable under Section 341 r/w Section 149; for a

period of two years rigorous imprisonment and fine of

Rs.10,000/- each for the offence punishable under Section 506

r/w Section 149; and petitioner No.1 was sentenced to undergo

rigorous imprisonment for two years with fine of Rs.10,000/- for

the offence punishable under Section 326 r/w Section 149 and

petitioner Nos.3, 4 and 5 are sentenced to undergo rigorous

imprisonment for a period of one year with fine of Rs.5,000/- for

the offence punishable under Section 324 r/w Section 149 of

IPC.

13. Having considered the factual aspects of the case, no

doubt, PW1 also admits that there was an ill-will between PW1

and the petitioners herein and also there was a civil dispute

between the parties and having taken note of the nature of the

injuries and the fracture on the right middle finger and not on

the vital part of the body, this Court is of the opinion that the

Trial Court committed an error in imposing rigorous

imprisonment for substantive sentence of two years hence, it is

appropriate to reduce the same for six months and the fine

amount is unaltered.

14. Regarding the sentence in respect of the offence

punishable under Section 506 of IPC is concerned, rigorous

imprisonment for a period of two years was imposed and the

very evidence of PW1 before the Trial Court discloses that he has

not stated anything about that the petitioners have caused

threat to PW1 and the same is not appreciated by the Trial Court

as well as the Appellate Court regarding causing intimidation is

concerned. Hence, the Trial Court has committed an error in

imposing two years of rigorous imprisonment as well as fine,

hence, it requires interference of this Court and the same is set

aside.

15. Regarding the offence punishable under Section 341

of IPC is concerned, it is specifically deposed that the petitioners

have prevented PW1 when he was proceeding in the motorcycle

and hence, I do not find any grounds to interfere with regard to

fine imposed by the Trial Court for this offence.

16. The Trial Court also convicted petitioners for the

offences punishable under Sections 143 and 148 r/w Section 149

of IPC and in the evidence of PW1, he has not stated that all of

them have formed an unlawful assembly with common intention

and restrained him and when there is no common object,

invoking the aforesaid Sections does not arise. Hence, it

requires interference of this Court to set aside the same.

17. Regarding invoking Section 324 of IPC is concerned,

the specific evidence of the injured that other accused persons

have inflicted injury with chopper as well as club and wound

certificate discloses the cut lacerated wound and also other

injuries and sentencing accused Nos.3, 4 and 5 for a period of

one year is on higher side and the same is not commensurate

with the nature of the injury and gravity of the offence and it

requires interference.

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

following:

ORDER

The revision petition is allowed in part.

The conviction and sentence for the offence punishable

under Sections 143, 148, 506 r/w Section 149 of IPC are hereby

set aside.

The conviction in respect of offences punishable under

Section 324, 326 is hereby confirmed and the sentence is

reduced to six months from two years for the offence punishable

under Section 326 and three months from one year for the

offence punishable under Section 324 of IPC. The fine imposed

by the Trial Court is unaltered.

The Trial Court is directed to pay an amount of

Rs.25,000/- in favour of PW1 and remaining amount of

Rs.5,000/- shall vest with the State.

The sentence shall run concurrently.

Sd/-

JUDGE

SN