Narayan S/O Bhimanna And Anr vs The State Of Karnataka Through ...
2022 Latest Caselaw 2371 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

       DATED THIS THE 15 TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.200014/2014


BETWEEN:

1. Narayan S/o Bhimanna,
   Age : Major, Occ :Coolie,
   R/o Bhaktampalli, Tq :Chincholi,
   Dist : Gulbarga.

2. Tippanna S/o Ramanna Talawara,
   Age : 35 years, occ : Coolie,
   R/o Bhaktampalli, Tq : Chincholi,
   Dist : Gulbarga.
                                             ... Appellants

(By Sri R.S.Lagali, Advocate)


AND:

The State of Karnataka
Through Miriyan PS
Represented by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
                                            ... Respondent

(By Sri Gururraj V.Hasilkar, HCGP for respondent/State;
Sri A.M.Nagaral, Advocate for complainant)
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      This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set-aside the judgment
and order of conviction passed by the Hon'ble I Addl.
Sessions Judge at Gulbarga in Sessions Case N.157/2012
dated 06.01.2014 may kindly be set aside by allowing this
criminal appeal and acquit the appellant for the charges
leveled against them under Sections 341, 326, 324, 323,
307, 504 and 506 Part-II r/w Section 34 of IPC.

      This appeal coming on for Final Hearing this day, the
Court delivered the following:

                         JUDGMENT

Heard. Complainant and the accused persons present

before the court in pursuance of the directions issued by

this Court.

2. Complainant is identified by Sri A.M.Nagral

Advocate. He has filed an affidavit before the court. So

also accused persons have filed an affidavit before this

court.

3. Head Sri R.S.Lagali learned counsel for the

appellant and Sri A.M.Nagaral learned counsel on behalf of

complainant and Sri Gururaj V.Hasilkar learned High Court

Government Pleader for respondent/State.

4. The present appeal is filed challenging the

judgment passed in Sessions Case No.157/2012 on the file

of I Addl. District and Sessions Judge, Kalaburagi dated

06.01.2014 whereby accused were convicted for the

offences punishable under Sections 307, 326, 324 and 323

read with Section 34 of IPC and sentenced as under :-

Default Offence Punishment Fine sentence Section 307 r/w Rigorous `10,000/- Simple Section 34 of IPC Imprisonment Imprisonment for five years for 10 months

Section 341 r/w -- `300/- Simple Section 34 of IPC Imprisonment for ten days

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

Upon the complaint lodged by Sri Channappa S/o

Bheemanna, Miryan Police registered a case in Crime

No.7/2011 for the offences punishable under Sections 341,

326, 324, 323, 307, 504 and 506 Part II read with

Section 34 of IPC. In the complaint it is contended that on

15.06.2011 around 12.00 noon, there was an altercation

between the complainant and the accused in Bhaktampalli

village, Chincholi Taluk. In the said incident, the accused

assaulted the complainant with a knife and complainant

sustained injury on the testicles sac. According to the

complaint averments accused No.2 hold the complainant

firmly when accused No.1 was assaulted him. He was

admitted to the hospital. The Doctors after examining the

complainant, intimated the incident by filing a medico legal

case report to Miryan Police. On the same day at about

1.00 p.m., Miryan Police visited the hospital and took the

complaint from the complainant and registered the case as

aforesaid.

6. Presence of the accused persons were secured

and charge was framed. Accused persons pleaded not

guilty and trial was held. The second accused -Tippanna

was a juvenile and he was tried in juvenile justice board.

7. In order to substantiate the charges leveled

against the accused, 13 witnesses were examined as

PWs.1 to 13 and 10 documents were relied upon which

were exhibited and marked as Exs.P.1 to P.10 comprising

of the complaint, FIR, spot mahazar, wound certificate and

FSL report. Five material objects were also marked as

MOs.1 to 5 among them MO.1 is the knife in which the

accused No.1 assaulted the complainant, MOs.2 to 5 are

the clothes worn by the complainant on the date of

incident.

8. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C was recorded wherein the accused persons denied

all the incriminatory circumstances found against them but

did not choose to place their version on record either by

examining themselves or by placing any written

submissions as is contemplated under Section 313(5) of

Cr.P.C.

9. Thereafter, the learned trial Judge heard the

parties and passed an order of conviction and sentenced

the accused persons as referred to supra.

10. Being aggrieved by the same, the present

appeal came to be filed by the accused persons.

11. In the appeal memorandum following grounds

have been raised :-

x That, in the complaint it is not at all stated at the time of incident. There is a moon light and electricity light and in the said light he has identified to accused during the course of evidence before the Court. Improved version of evidence is deposed before the court, on the other hand I.O. is not produced any documentary evidence at the time of incident there is electricity light, admittedly the incident took place in the dark night. Hence prosecution is not proved. Beyond reasonable doubt, that there is a sufficient source of light at the time of incident and under which PW1 identified the accused.

x That, the independent witnesses are not support the case of prosecution.

x That, no incriminating articles were recovered from the possession of accused/appellant. The M.O.1 is recovered at the spot. That the spot panchas are not supported the case of prosecution. The incident took place on a road on 15.06.2011. M.O.1 recovered from the place of offence 16.06.2011 in between 7a.m. to 8a.m. It is very difficult to believe that said M.O.1 is still remain laying in the place since from time of offence to the recovery of the same admitting, the place of offence is busy road. Even there is no evidence of I.O .to the extent that he deployed a police constable to watch to place of offence from 15.06.2011

7.00 pm to 16.6.2011 7.00 a.m. Hence seizure of M.O.1 from the place of offence it is doubtful.

x That the I.O. is not collected any finger prints evidence 4. found on the M.O.1. Hence it is very difficult to believe appellant No.1 used the M.O.1 at the time of commission of offence.

x That the I.O. is not sealed the M.0.1 at the time of conducting spot panchanama and hence it creates doubt in respect of seizure of M.O.1.

x That there is no sufficient acceptable evidence brought on record before the Hon'ble Court that it is the same knife which is sent for FSL.

x No blood stains found on the cloth of appellant.

x That, the doctor has not given the evidence that the above said injury caused by the appellant which is sufficient in the ordinary course of nature to cause death.

x That there is no evidence on record that the PW-1 suffers severe pain more than 20 days during the time of treatment. It is the only presumption of the Court below which is not correct.

x That there is delay in lodging complaint, court below is no consider this fact and came to wrong conclusion.

x That the panch witness are not supported the case of prosecution hence the seizure of M.O. 1 to 4 is not proved.

x That the PW1 is not disclosed the name of assaulter and the place of offence and what weapon used do in the wound certificate it creates serious doubt regarding the truth of the prosecution story.

x That I.O. not sought any opinion in respect of M.O.1 showing the same to PW 11 doctor who examined PW1 that whether M.O.1 can cause the injuries which is found in wound certificate ExP-8.

x No blood stain found in the place of offence, that the prosecution is not proved the place of incident.

x That, the other grounds will be urged at the time of argument.

12. Reiterating the above grounds, Sri R.S.Lagali,

learned counsel for the appellant contended that the trial

court is not justified in convicting the accused for the

offences punishable under Sections 326 and 307 of IPC. He

further contended that the incident itself is not properly

established inasmuch as the third accused who is a

juvenile has been acquitted by the Juvenile Justice Board

practically on the same set of evidence and sought for

allowing the appeal. Alternatively, he contended that the

accused No.1 and the complainant are the full brothers,

have amicably settled the dispute and this court may take

lenient view while passing an appropriate order of

sentence.

13. Per contra, learned High Court Government

Pleader opposes the appeal grounds and prays for

dismissal of the appeal in toto.

14. Learned counsel for the complainant submits

that the settlement between the complainant and the

accused is a true settlement and having regard to the

nature of injuries sustained by the complainant and also

having regard to the fact that the long term relationship to

be maintained with the accused and the complainant, this

court may pass suitable orders while modifying the

sentence appropriately.

15. In view of the rival contentions, following

points would arise for consideration :-

1. Whether the prosecution has established all ingredients to attract the offences

punishable under Sections 307, 326, 324 and 323 read with Section 34 of IPC ?

2. Whether the finding recorded by the learned trial Judge that the accused is guilty of the offences punishable under Sections 307, 326, 324 and 323 read with Section 34 of IPC is suffering from legal infirmity and perversity and thus calls for interference ?

3. Whether the sentence is excessive ?

Regarding point Nos.1 and 2 :-

16. In the case on hand, the incident is not in

dispute. So also the complainant having sustained injury in

the testicle sac as per Ex.P.8 wound certificate is not in

dispute. The Doctor who examined the complainant and

issued Ex.P.8 the wound certificate is also examined by the

prosecution as PW.11. In Ex.P.8, no doubt it has been

mentioned that the injury is a grievous injury. How exactly

an injury can be classified as a grievous injury or hurt is no

longer res integra. The term grievous injury is defined

under Section 320 of IPC which reads as follows :-

"320. Grievous hurt.--The following kinds of hurt

only are designated as "grievous":--

  First.--           Emasculation.

  Secondly.--        Permanent privation of the sight of
                    either eye.

  Thirdly. --        Permanent privation of the hearing
                    of either ear.

  Fourthly.--        Privation of any member or joint.

  Fifthly.--         Destruction      or   permanent
                    impairing of the powers of any
                    member or joint.

  Sixthly.--         Permanent     disfiguration         of     the
                    head or face.

  Seventhly.--       Fracture or dislocation of a bone or
                    tooth.

  Eighthly.--        Any hurt which endangers life               or
                    which causes the sufferer to                be
                    during the space of twenty days             in
                    severe bodily pain, or unable               to
                    follow his ordinary pursuits.

17. The Division Bench of this Court in the case of

State v. Sheenappa Gowda reported in 2011(4) KCCR

2759, while dealing with the term grievous has held 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 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".

18. Taking note of this aspect of the matter,

having regarding to the nature of the injuries sustained by

the complainant, this court is unable to accept the finding

recorded by the learned trial Judge that the injuries

sustained by the complainant could be considered as

grievous injury. Accordingly, the material evidence on

record is not sufficient to convict the accused for the

offences punishable under Sections 326 and 307 of IPC.

19. Further, the material evidence on record

clearly indicate that altercation was there and knife has

been used and blood injury has been caused to the

complainant. Taking note of these aspects of the matter,

without the accused No.2 holding the complainant firmly,

accused No.1 could not have assaulted the complainant

with the knife. Accordingly, both the accused are to be

convicted for the offences punishable under Sections 324,

323 and 341 of IPC. Accordingly, point Nos.1 and 2 are

answered.

Regarding point No.3 :-

20. The learned trial Judge has convicted the

accused Nos.1 and 2 for the aforesaid offences and

sentenced as referred to supra. This court having taken

note of the fact that the injury sustained by the

complainant cannot be treated as a grievous injury and

also having regard to the fact that the material on record

is not sufficient to convict the accused No.1 for the

offences punishable under Sections 326 and 307 of IPC

while answering point Nos.1 and 2 above, scaled down the

offence alleged against the appellants for the offence

punishable under Sections 324 and 341 of IPC. The

accused No.1 was in custody for a period of 45 days and

accused No.2 was in custody for four months.

21. After the incident and after the conviction

order there is a true settlement between accused No.1 and

the complainant. Affidavit filed before the court also

reflects the same.

22. In a matter of this nature, more so having

regard to the relationship between accused No.1 and the

complainant being the full brothers, this court while

passing the appropriate sentence has to take note of the

affidavit contents as well. Accordingly, the Hon'ble Apex

Court in a matter of similar nature in the case Murali and

others Vs State reported in AIR 2021 Supreme Court

472 has held as under :-

"14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the Appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind."

23. The role assigned to a court while convicting

an accused is altogether different from the role that is

assigned to a court while passing the appropriate sentence

in a given case.

24. In view of the fact that the affidavit has been

filed by the complainant and the accused and also taking

note of the fact that the accused No.1 and the complainant

are the full brothers, the custody period already undergone

by accused Nos.1 and 2 during the trial may be treated as

the period of imprisonment for the aforesaid offences.

Though this court has acquitted for the offences punishable

under Sections 326 and 307 of IPC for the accused

persons, having regard to the fact that the incident has

occurred in the year 2011 and also taking note of the fact

that the appropriate compensation amount is not awarded

to the complainant, the fine amount imposed by the

learned trial Judge in a sum of `10,300/- is maintained for

the offences punishable under Sections 324 and 341 of

IPC. Out of the fine amount, `15,000/- is ordered as

compensation to the complainant in terms of Section 357

of Cr.P.C., ends of justice would also met. Accordingly,

pass the following :

ORDER

Appeal is allowed in part.

Order of conviction and sentence passed by the

learned trial Judge in S.C.No.157/2012 dated 06.01.2014

is modified as under :-

Accused/appellants are acquitted for the offences

punishable under Sections 326 and 307 of IPC.

The accused/appellants are convicted for the

offences punishable under Sections 324 and 341 of IPC

and custody period of 44 days and four months spent by

accused Nos.1 and 2 are treated as period of imprisonment

for the aforementioned offences.

The fine amount of `10,300/- awarded by the

learned trial Judge is maintained for the offences

punishable under Sections 341 and 324 of IPC.

Since the fine amount is already deposited before

the trial Court, out of the fine amount the trial Court is

directed to pay a sum of `15,000/- as compensation to the

complainant in terms of Section 357 of Cr.P.C under due

identification.

Ordered accordingly.

Office is directed to return the trial court records

along with the copy of this judgment forthwith.

Sd/-

JUDGE

sn