Krishnegowda vs State By K.R. Pete Police Station
2022 Latest Caselaw 5915 Kant

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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.96/2013


BETWEEN:

KRISHNEGOWDA
S/O HANUMEGOWDA,
AGED ABOUT 48 YEARS,
R/O ATTIMARENAHALLI,
K.R.PET TALUK,
MANDYA DISTRICT.                     ... PETITIONER

(BY SRI.G.S.BALAGANGADHAR,
AMICUS CURIAE FOR PETITIONER-IN-PERSON)

AND:

STATE BY K.R. PETE POLICE STATION.     ...RESPONDENT

(BY SMT.RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER    SECTION 397 READ WITH 401 OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED
10.02.2010 PASSED BY THE C.J.(JR.DN.) AND JMFC,
K.R.PET IN C.C.NO.138/2007 AND SET ASIDE THE
JUDGMENT DATED 03.08.2012 PASSED BY THE F.T.C.-III,
MANDYA IN CRL.A.No.25/2010.
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri. G.S.Balagangadhar, the learned Amicus

Curiae for the petitioner and Smt.Rashmi Jadhav, learned

High Court Government Pleader for the respondent-State.

Perused the records.

2. The factual matrix of the case of the

prosecution before the trial Court is that on 12.11.2006 at

about 7.00 am near the house of the accused situated at

Attimaranahalli Village within K.R. Pet town police limit,

the P.Ws.1 and 2 went to the house of accused questioning

him the act of harvesting the maize crop grown by the

P.W.1 at his land, the accused picked up a quarrel with

the P.W.1 and assaulted him with the iron chain inflicting

the injury on his back, head and other parts of the body as

well as assaulted on his right thumb inflicting grievous

injury. It is also stated that, the accused also assaulted

P.W.2 on his back, head and cheek causing simple injuries,

when P.W.2 came to rescue of P.W.1 and hence, invoked

the offence punishable under Sections 326 and 324 of IPC.

3. The police have investigated the matter and

filed charge sheet against the accused and secured the

accused before the trial Court and accused did not plead

guilty and claimed to be tried. Hence, the prosecution

examined seven witnesses as P.Ws.1 to 7, among them

P.W.1 and 2 are the injured witnesses; P.Ws.3 and 4 are

eye witnesses; P.W.5 is the doctor who treated the P.W.1

and 2; P.W.6 is the mahazer witness and P.W.7 is an

investigating officer. The prosecution got marked five

documents as Ex.P1 to P5(a) and one material object as

M.O.1. The trial Court after considering both the oral as

well as documentary evidence, convicted the petitioner for

the offences punishable under Sections 326 and 324 of IPC

and imposed fine of Rs.3,000/- and Rs.2,000/-

respectively for the said offences and also awarded default

sentence.

4. Being aggrieved by the judgment of the trial

Court, the petitioner herein has filed a criminal appeal

No.25/2010 before the Appellate Court. The appellate

Court on reappriciation of the evidence, dismissed the

appeal by confirming the judgment of the trial Court.

Hence, present petitioner is before this Court.

5. Learned Amicus Curiae appearing for the

petitioner in his argument, vehemently contended that

the incident was taken place at 7.00 a.m. and Ex.P1-

complaint discloses that the complaint was lodged at 10.00

am, on the very same day and he also brought to notice of

this Court that an endorsement available in the FIR is

submitted to the Court on the next day i.e., on 13.11.2006

along with the original complaint at 10.30 a.m. as such,

there is a delay in sending the FIR. In the meanwhile,

mahazar was conducted in terms of Ex.P2. But Ex.P2 -

Mahazar was not placed before the Court immediately. The

Amicus Curiae also vehemently contended that though the

prosecution invoked the offence under Section 326 of IPC,

X-ray is not produced before the Court. He further

vehemently contended that P.W.6 is the mahzar witness

regarding seizure of the weapon used for committing the

offence, he has also not supported the case of the

prosecution. Inspite of the same, the trial Court committed

an error in convicting the petitioner and passed the

sentence. With regard to the sentence also, learned

Amicus Curiae contended that the injured P.W.1 and the

accused are the brothers and it is also emerged in the

evidence of P.W.1 that the partition was taken place about

twenty years ago and there is a dispute with regard to

harvesting of the crop and incident was suddenly taken

place when the injured went to the house of accused-

petitioner and questioned the act of the petitioner and also

the same has not been considered by the trial Court as

well as the appellate Court regarding sentence part is

concerned and the sentence imposed is also too harsh and

the nature of injury sustained by the P.W.1 is also fracture

to the thumb but not on vital part and hence, requires

interference of this Court.

6. Per contra, the learned HCGP appearing for

the State would submit that P.Ws. 1 and 2 are the injured

witnesses and in their cross examination, nothing has

been elicited regarding the incident. The P.Ws.3 and 4 are

the eye witnesses and they are also supported the case of

the prosecution and even, very presence of these

witnesses was also not denied in the cross examination.

The learned HCGP submits that the medical evidence i.e.,

P.W.5-Doctor categorically states that the injured came to

the hospital within 45 minutes of the incident wherein also

mentioned the name of the assailants within 45 minutes of

the incident and hence, the delay in sending the FIR

cannot go to the very route of the case of the prosecution.

The P.W.6-investigating officer, on information registered

the case on the very same day and conducted the spot

mahazar on the very same day and mere sending of FIR

belatedly on the next day not takes out the case of the

prosecution.

7. Having heard learned Amicus Curiae appearing

for the petitioner and so also the learned HCGP appearing

for the State and also on perusal of the materials available

on records, the points that would arise for consideration of

this Court are:

i. Whether the trial Court has committed an error in believing the evidence of prosecution witnesses and committed an error in convicting the accused for the offences punishable under Sections 326 as well as 324 of IPC?

ii. Whether the appellate Court has committed an error in confirming the judgment of conviction and order of sentence passed by the trial Court?

iii. Whether the petitioner has made out the ground invoked the revisional jurisdiction regarding conviction and sentence?

iv. What order?

8. Having heard learned Amicus Curiae for the

petitioner and learned HCGP appearing for the State and

also looking into the charges levelled against the petitioner

that he inflicted injured-PW1 with the iron chain, as a

result, P.W.1 sustained fracture to his thumb and P.W.2

also sustained simple injuries, out of the injuries, only one

grievous injury i.e., fracture of thumb. The P.W.1 and 2

who are the injured witnesses have been cross examined

and in the cross examination, nothing is elicited with

regard to the incident is concerned and even not

suggested that he has not sustained any such injury and

also no such incident was taken place and only, a formal

cross examination was made regarding distance of the

house and topography of the place of the incident. In the

cross examination of P.W.2, no doubt, a suggestion is

made that the petitioner has not assaulted him or inflicted

injury and the said suggestion was denied. Except this,

nothing is elicited regarding the nature of the injury as well

as incident is concerned. P.W.3 and 4 are also the eye

witnesses and in their cross-examination also, nothing has

been disputed with regard to they were not present at the

spot and they have not witnessed the incident. The record

disclosed that, the P.W.5-doctor who gave the treatment

to the P.Ws. 1 and 2 at about 7.45 am on the very same

day within 45 minutes of the incident and referred the

patient-P.W.1 for taking X-Ray and based on the X-Ray,

assessed the injury as a grievous injury and there was a

fracture.

9. The Other witness P.W.6 regarding seizure of

M.O.1, no doubt, he turned hostile partly but his evidence

is clear that, police came to the spot i.e., at the house of

P.W.1 and 2 and he has signed Ex.P2-mahazar and along

with him one Boregowda was also present but he said that

he has not seen the M.O.1 at the spot. But regarding

mahazer is concerned, he admits, but seizure of M.O.1 is

concerned, he turned hostile. The Court has to take note of

the evidence of P.Ws.1 and 2 who are the injured

witnesses and in their evidence, nothing is discredited

regarding the incident as well as the injuries are concerned

and cross examination of P.W.3 and 4 who are the eye

witnesses also nothing is elicited with regard to they are

giving evidence against the petitioner and they were

having any enmity. But no cross-examination to the effect

that they have not witnessed the incident and hence,

evidence of P.Ws.1 to 4 corroborates each other with

regard to the incident is concerned. Apart from that, the

doctor who has been examined as P.W.5 before the trial

Court, categorically states that he treated PWs.1 and 2 and

noticed there is one grievous injury and the same is

fracture and documents Ex.P3 and P4 are the wound

certificates are marked in respect of P.W.1 and 2 and

wherein even X-Ray number is also marked in Ex.P3. No

doubt, X-ray is not placed before the trial Court, to that

effect, nothing is suggested to the doctor-PW5. In the

cross examination of PW5, except eliciting the answer that

if any person falls from the vehicle on the rough surface of

the land, there are chances of sustaining lacerated wound

and even not disputed the nature of injury of the fracture

in the cross-examination of P.W.1 and hence, very

contention that X-ray is not produced takes the case of the

prosecution and when there is no dispute with regard to

the fracture is concerned in the cross-examination of

P.W.5, the very contention of the counsel that no X-ray is

produced and hence, the Court cannot come to a

conclusion that Section 326 cannot be accepted. Hence,

the same is not disputed by the cross-examination of PW5.

10. Having considered the evidence available on

record i.e., evidence of P.Ws.1 and 2-injured witnesses

and also the evidence of P.Ws.3 and 4-eye witnesses and

also the evidence of PW5-doctor and also considering the

finding of the trail Court particularly, in paragraph No.16,

the trial Court assessed the evidence of the prosecution

and taken note of evidence of P.Ws.1 and 2 and the

evidence of P.Ws.3 and 4 and apart from the wound

certificates-Ex.P3 and 4 also considered. The Court has

taken note of nature of injury in paragraph No.17. The

appellate Court also in the appeal, while reassessing the

evidence available on record in paragraph-20, taken note

of evidence and observed that in the cross-examination of

these witnesses nothing is elicited and in order to

disbelieve the evidence of prosecution witnesses, no

answers are elicited and the same is also discussed in

paragraphs No.21 and 22 and also taken note of evidence

of P.W4 in paragraph No.23 and over all, assessed the

evidence of the prosecution witnesses and also considered

the evidence of P.W.5-doctor in paragraph No.25 and

having reassessed the evidence, the appellate Court has

rightly dismissed the appeal filed by the petitioner herein.

11. Learned Amicus Curiae for the petitioner

submits that there was a delay in sending the FIR to the

Court. On perusal of the record, there was a delay but the

fact is that the injured persons went to the hospital

immediately after the incident taken place i.e., within the

45 minutes of the incident and P.W.5-doctor treated P.W.s

1 and 2 within forty five minutes of the incident and the

very negligence on the part of the I.O. in not sending the

FIR on next day to the Court will not go to the route of the

case. The materials before the Court discloses that the

incident was taken place and immediately went to the

hospital and took treatment and thereafter, lodged the

complaint in terms of Ex.P1. Hence, contention of the

learned Amicus Curiae cannot be accepted.

12. In order to exercise the revisional jurisdiction

is concerned, the Court has to look into the material

available on record and if perverse finding is given by the

trial Court without considering the cogent evidence

available on record, then, the Court can invoke the

revisional jurisdiction and in order to finding with regard to

the correctness is concerned, no such error is committed

by both the Courts below and regarding legality aspects is

concerned also, no dispute with regard to the nature of

injury i.e., fracture to the thumb of the injured i.e., PW1

and the doctor also relied upon the X-ray and thereafter,

come to the conclusion that it is a fracture and hence, I do

not find any illegality and correctness in exercising the

discretion while appreciating the evidence.

13. Now, coming to the sentence part is

concerned, no doubt, the P.W.1 and the accused are the

brothers and it is emerged in the evidence that partition

was taken place about twenty years ago and also incident

was taken place with regard to the harvesting of the crop

in the land of P.Ws.1 and 2 by this petitioner and hence,

he inflicted injury with the iron chain and the injury is also

not on the vital part and he had sustained fracture to his

thumb and when such being the case, ought to have been

taken note by the trial Court as well as appellate Court,

while sentencing the petitioner. The trial Court imposed

the sentence of two years and also the fine and two years

of substantive sentence of imprisonment is too harsh and

the same is not commensurate with the gravity of the

offence and also failed to take note of the circumstances

under which an incident has taken place and also failed to

take note of the dispute between the brothers that too

with regard to the harvesting the crop. The appellate Court

has also not considered this aspect while considering the

sentence part is concerned.

14. Learned Amicus Curiae at this juncture, would

submit that this petitioner was in custody from 13.03.2013

to 06.04.2013, till the suspension of sentence by this Court

and the same may be given set off invoking section 428 of

Cr.P.C. Having considered the nature of injury and also the

gravity of the offence and also the injury to the thumb and

that is also a fracture and having considered the

submission and the incident was taken place in the year

2006 and the period of almost three weeks in custody can

be given as set off.

15. Having considered the submissions and the

incident was taken place in the year 2006 and the

prosecution did not place any materials before the trial

Court that the injured took treatment as an inpatient and

in the absence of any inpatient records, there is a force in

the submission of the learned Amicus Curiae that in-lieu of

substantive sentence taking into note of the relationship

between the parties and nature of injuries and

circumstances under which the incident was taken place, it

is appropriate to order to pay a fine of Rs.50,000/- and the

same is payable in favour of injured-P.W.1 on proper

identification and the same would meet the ends of justice.

15. In view of discussion made above, I Pass the

following:

ORDER

i. The Criminal Revision Petition is allowed in

part.

ii. The judgment of conviction for the offence

punishable under Section 326 of IPC for a

period of two years is given set off as the

sentence already undergone for a period of

three weeks and order to pay fine of

Rs.50,000/- and the same shall be deposited

within six weeks.

iii. On deposit, the trial Court is directed to pay

the same in favour of PW1 on proper

identification.

iv. The sentence in respect of the offence under

Section 324 of IPC is unaltered.

v. If the petitioner fails to pay the said amount

within six weeks before the trial Court, the

petitioner to undergo sentence for a period of

six months.

Registry is directed to pay a fee of Rs.5,000/- in

favour of learned Amicus Curiae since he has assisted the

Court.

Registry is also directed to send the trial courts

records forthwith.

Sd/-

JUDGE

JS/-