Maiboob @ Sharu S/O Dastagirsab ... vs The State Of Karnataka
2022 Latest Caselaw 1 Kant

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF JANUARY, 2022

                           BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200084/2015


BETWEEN:

Maiboob @ Sharu s/o Dastagirsab Mulla,
Age : 46 years, Occ: Mason,
R/o Otihal, Tq : Sindagi,
Dist : Vijayapur.
                                              ... Appellant

(By Sri Shivanand V.Pattanshetti, Advocate)


AND:

The State of Karnataka
R/by Addl. SPP,
High Court of Karnataka,
Kalaburagi Bench.
(Through Sindagi P.S.)
                                           ... Respondent

(By Sri Sharanabasappa M. Patil, HCGP)

      This Criminal appeal is filed under Section 374(2) of
Criminal Procedure Code praying to set-aside the judgment
of conviction and order of sentence dated 28.07.2015 and
31.07.2015 respectively passed by the II Addl. Sessions
and Special Judge, Vijayapur in Special Case No.6/2014
                                 2



and acquit the appellant/accused in the interest of justice
and equity.

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

                        JUDGMENT

Accused, who has been convicted for the offence

punishable under Section 326 of Indian Penal Code (for

short, 'IPC'), ordered to pay a fine of `5,000/- and to

undergo rigorous imprisonment for a period of three years

has filed the present appeal.

2. Brief facts of the case are as under :-

A complaint came to be filed contending that on

30.12.2013, at about 6.00 a.m., when the complainant

had been to attend the nature call, accused knowing fully

well that accused belongs to Scheduled Caste, with an

intention to kill him attacked him by abusing him in filthy

language and thereafter, he stabbed with knife on the left

shoulder near the chest and caused grievous injuries. The

complainant somehow escaped from the clutches of the

accused and lodged a complaint against the accused.

Sindagi Police registered a case in Crime No.317/2013 at

about 8.30 p.m. for the offences punishable under

Section 307 of IPC and Sections 3(1)(x) and 3(2)(v) of

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short, SC/ST (POA) Act). The

jurisdictional police after thorough investigation laid

charge-sheet against the accused for the offences

punishable under Sections 504, 201 and 307 of IPC and

Sections 3(1)(x), 2(v) of SC/ST (POA) Act. Presence of the

accused was secured and charges were framed and

therefore, trial was held as he did not plead guilty.

3. In order to prove the case, prosecution

examined in all 10 witnesses as PWs.1 to 10 and relied on

16 documentary evidences, which were exhibited and

marked as Exs.P1 to P16 and also relied on five material

objects, which were marked as MOs.1 to 5. Thereafter,

accused statement as contemplated under Section 313 of

Code of Criminal Procedure (for short, 'Cr.P.C') came to be

recorded, wherein, accused has denied all the

incriminating materials found in the prosecution case.

4. Accused did not examine himself as a witness

nor filed any written statement as is contemplated under

Section 313(5) of Cr.P.C. However, in the cross-

examination of prosecution witnesses, marked a portion of

the complaint as Ex.D1 and three charge-sheets were filed

against the complainant in different crime numbers of Indi

and Sindagi Police Station as Exs.D2 to D4.

5. Learned trial Judge after considering the

material evidence on record and hearing the parties in

detail has convicted the accused for the offence punishable

under Section 326 of IPC and acquitted the accused for the

remaining offences. The trial Judge also imposed fine of

`5,000/- and ordered rigorous imprisonment for a period

of five years against the accused for the offence

punishable under Section 326 of IPC. Being aggrieved by

the same, accused is before this Court in this appeal.

6. In the appeal the following grounds have been

urged :-

x That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record and against the settled principles of law.

x That, the learned Special Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

x That, the entire evidence led by the prosecution is against the FIR and Ex.P.1, more particularly with reference to the motie aspect, that motive one attributed in the complaint Ex.P.1 is totally given a go-bye and second motive, as deposed in the evidence of prosecution witness, do not find place in the contents of Ex.P.1. So this material aspect is over looked by the trial court and convicted the appellant against the settled principles of law as contemplated in criminal jurisprudence.

x That, as per the law laid down by this Hon'ble court and Hon'ble Apex Court, the accused can't be convicted for commission of offence

punishable under Section 326 of IPC in respect of injury sustained by PW.1 because the prosecution as failed to prove the allegation of grievous injuries sustained by PW.1 in view of non production of x-ray for confirmation of fracture opined by the Doctor in clinical medical examination. So this principle of law has not been followed by the trial court and same was over looked and wrongly convicted the appellant.

x That, Ex.P.D1 to D4 is not been properly appreciated by the court below.

x That, evidence of PW.1/CW.1, PW.2/CW.2, PW.3/CW.4, PW.4/CW.6, PW.5/CW.7, PW.6/CW.12, PW.7/CW.09, PW.08/CW.18, PW.09/CW.22 and PW10 is not been properly appreciated by the court below.

x That, there is a lot of inconsistence of evidence regarding reaching of police station, filing of complaint, the manner in which investigation is conducted and delay in filing the complaint. This fact is not been properly appreciated by the court below.

x That, great care must be taken in evaluating evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. But this principle is not been properly appreciated by the court below.

x That, there is no legal evidence collected by the prosecution during investigation as well as during the trial, even then trial court convicted the appellant is bad-in-law.

x That, court below failed to put the questions regarding the incriminating materials and circumstances against the accused while recording the 313 statements.

x That, court below ought to have disbelieved the say of witnesses who are very much interested in convicting the appellant.

x That, it is respectfully submitted that, the learned Special Judge ha snot at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and

incorrect. The same has resulted in miscarriage of justice to the appellant.

7. The learned counsel for the appellant

Sri Shivanand V.Pattanshetti, reiterating the above

grounds vehemently contended that the learned Trial

Judge grossly erred in recording an order of conviction

against the accused for the offence punishable under

Section 326 of IPC. In support of his arguments, he relied

on the judgment of the Division Bench of this Court in the

case of State vs. Sheenappa Gowda and others

reported in 2011(4) KCCR 2759.

8. He further contended that at the most, the

offence as against the accused is the one under

Section 324 of IPC and in that event, this Court is

confirming the finding that the injuries sustained by the

complainant as per Ex.P.9 stands established and the

accused be convicted for the offence punishable under

Section 326 of IPC instead of Section 324 of IPC and

sought for grant of probation as against the accused as he

is a first time offender.

9. Per contra, learned High Court Government

Pleader while supporting the impugned judgment

vehemently contended that the material evidence on

record has been rightly appreciated by the learned trial

Judge and contended that the accused and the

complainant were known to each other and there is no

dispute as to the identity of the accused and the material

evidence on record clearly depict that there is no delay in

lodging the complaint and the injuries sustained by the

complainant could not have been caused unless there was

an assault with a sharp edged weapon and therefore, the

prosecution is successful in establishing all the ingredients

to attract the offence under Section 326 of IPC and sought

for dismissal of the appeal.

10. In view of the rival contentions, following

points would arise for consideration:

(i) Whether the prosecution is successful in establishing beyond reasonable doubt that accused with an intention to take away the life of the complainant, assaulted the complainant with the knife on 30.12.2013 at about 6.00 a.m. in the land of one Appugouda, when the complainant had been to there to attend the nature call and thereby caused injuries as is found in the wound certificate marked at Ex.P.8 beyond all reasonable doubt ?

ii) Whether the finding recorded by the trial Judge that the accused is guilty of the offence punishable under Section 326 of IPC is legally sustainable ?

iii) Whether the sentence is excessive?

Regarding point Nos.1 and 2 :

11. In the case on hand, in order to prove the case

of the prosecution complainant got examined himself as

PW.1. He has reiterated the averments made in the

complaint with graphic details about the incident. A detail

cross-examination of PW.1 did not yield any result in

holding that the complainant had deposed false against the

accused. PW.1 has specifically deposed that on

30.12.2013, when he had been to the land of one

Apputgouda to attend the nature call at about 6.00 a.m.,

accused being angry that complainant had demanding

accused to repay `50,000/-, took the opportunity and

assaulted the complainant with the knife and thereby

caused injuries on the chest region.

12. The version of the complainant is exclusively

corroborated by the wound certificate, which is marked at

Ex.P.8. In Ex.P.8 the Doctor has noticed the following

injuries :-

1. Incised wound of 1x2x2 inch, present one inch above left nipple on left side chest, red in colour, bleeding was present.

2. Incised wound present on middle of left arm, postero laterally measuring 1x2 inch, muscle depth, red in colour;

3. Incised wound 1x1 inch, muscle depth present medially on deltoid region on left arm;

4. Small incised wound of ½x½ inch present medially over proximal phalanx of right ring finger, muscle depth;

5. Small incised wound ½ x ½ inch present laterally over middle phalanx of right middle finger.

13. The Doctor who treated the complainant in the

Government Hospital, has issued wound certified as per

Ex.P.8 is examined before the Court as PW.8. Admittedly,

the Doctor did not possess any previous enmity or

animosity against the accused in treating the complainant

and to issue a false wound certificate. It is also pertinent

to note from Ex.P.8, the complainant was examined at

about 7.30 a.m. on 30.12.2013. As such, there is no loss

of time between the incident and the examination of the

complainant. The police also registered the case without

much delay against the accused for the aforesaid offences

on 30.12.2013 at about 8.00 a.m. after receipt of MLC

information received from the Government Hospital,

Sindagi.

14. Further, it is settled principle of law that the

oral testimony of injured eyewitness should be kept on

higher pedestal. The learned trial Judge has discussed all

these aspects of the matter in the impugned judgment in

detail while appreciating the case of the prosecution in

paragraphs 21 to 30. For the sake of certainty, the said

paragraphs are extracted hereunder:-

"21. Pw.8/doctor has deposed that injured was brought by Eknath Dashyal with alleged history of assault. If we see the contents of complaint, therein it is also mentioned that immediately after the assault, complainant came to his house, informed his elder brother Eknath Dashyal and in the mean time Pw.4/Appugouda also came over there, they alongwith others shifted the injure to hospital. The doctor has specifically deposed that injuries were fresh and bleeding was present. On examination, the doctor has found in all five injures and because of stab injuries it had caused fracture

of 2nd, 3rd and 4th ribs of the left side. She has also deposed that except the injury No.1 other injuries are simple in nature and all those injuries were caused by sharp object. Learned counsel for the defence while cross-examining this doctor witness, no doubt, elicited the fact that she had not recorded the identification marks of injured and also regarding the width between two ribs. That elicitation will not take away the 24 Spl Case No.6/2014 positive evidence of Pw.1/Balaram and that of Pw.8/doctor that injuries sustained by him were due to assault with sharp object. As per the say of Pw.1/Balaram, he has identified the knife as one used by accused to assault him. He has also categorically deposed that when he had gone for attending nature call in the morning ours to the land of Pw.4/Appugouda where lemon plantation is there, this accused came over there and picked up quarrel when the complainant demanded for return of money which resulted the accused in using MO.4/knife and stabbing him and thereafter he ran away towards Nala.

22. Right know if we just concentrate about the injuries suffered by Pw.1/Balaram due to assault by MO.4 like knife, forgetting for moment as to who is the assailant, as to whether really he had suffered those injuries at that given point of time or not. Already I have appreciated the

evidence of Pw.1/Balaram and that of Pw.8/doctor. Learned counsel for the defence himself has suggested to Pw.1/Balaram in the cross- examination dated 19.3.2015 that Pw.1 suffered these injuries when he attempted to 25 Spl Case No.6/2014 commit theft of diesel in the village and taking advantage of these injuries he has filed false complaint against the accused. So, Pw.1/Balaram suffering those injuries of the nature one recorded by Pw.8, virtually stands proved. The suggestion made to Pw.8/doctor that such injuries can be caused if a man falls on the remaining stump of cut portion of tuar crop, is also denied by the doctor. Even presuming for such thing, then there would have been some other associated injuries on other parts of the body as well.

23. The only material contradiction that was elicited in the evidence of this Pw.1/Balaram is Ex.D.1 i.e. portion of complaint regarding place where the incident took place. Now he has denied having stated so. Admittedly the evidence is adduced by prosecution to show that scene of occurrence was not at the place mentioned in Ex.D.1 in the land of Yamanappa Madar, but in the lemon plantation of Pw.4/Appugouda. Spot panchanama is also drawn in that land and cover of knife MO.5 has been seized from that place. If really police wanted to create a story of this

nature, they could have as well shown the seizure of 26 Spl Case No.6/2014 MO.4/knife from that place itself, instead of only the seizure of cover of knife. Therefore it cannot be said that Pw.1/Balaram is deposing falsehood with an intention to falsely implicate this accused. Admittedly but for the past electioneering relating to the election of Gram Panchayat president, wherein Suvarna had contested, there was no occasion for this complainant to have any sort of association with the accused. As pointed out earlier, this complainant was infact used by the family members of Suvarna Jalapur knowing his criminal background to make an underhand dealing with this accused to get his wife's vote casted in favour of Suvarna. Such a situation existed during that electioneering period is further more clarified by the defence itself in the cross-examination of Pw.1/Balaram at para-9. It was suggested to him that he alongwith, Cw.11/Ashok Mannur, Cw.6/Appugouda, Cw.13/Ninganagouda, Cw.14/Hanamant Waddar, Cw.15/Parasu Waddar had kidnapped this accused and kept him in confinement in Town Palace Hotel, Vijaypur. It is also further suggested that however the accused managed to escape from that hotel and came to the village. These 27 Spl Case No.6/2014 suggestions have been denied by the witness. But these factual suggestions are suggestive of the fact

even because of pressure tactics used by the complainant, accused was not happy with the complainant. Therefore enmity aspect is well established by these suggestions. Admittedly the accused has not filed any complaint for the alleged acts and deeds of complainant in the alleged kidnap and he being kept in wrongful confinement in Town Palace hostel, Vijaypur. Therefore the assertion of complainant that inspite of accused having taken money from him, he could not get his wife's vote casted in favour of Suvarna appears to be the cause for such incident of assault causing injuries.

24. No doubt in the complaint Ex.P.1 he has not specifically mentioned the presence of Pw.4/Appugouda and his own brother Pw.5/Bhimaray. Now Pw.1/Balaram has offered explanation as he was under lot of pain, he could not give all the details in the complaint and that which he has clarified in his further statement recorded on 12.1.2014 after his discharge from Solapur hospital. Pw.9/Investigating Officer has also deposed to this effect. It 28 Spl Case No.6/2014 is to be noted that no contradictions are brought on record from that further statement to show that, that further statement and this contents of complaint Ex.P.1 are in material contradiction to one another and to show that for that reason the

evidence of these witnesses Pw.1/Balaram, Pw.4/Appugouda and Pw.5/Bhimaray cannot be believed. As pointed out earlier, it is but natural that the witnesses have tried to magnify certain things more than what they have actually seen, but that deserves to be ignored. Therefore in the light of that dictum of law already made mention in earlier paras, the evidence of Pw.4/Appugouda and Pw.5/Bhimaray and evidence of other witnesses is to be appreciated.

25. Pw.4/Appugouda in his examination-in- chief at para-2 has deposed that he is residing in his farmhouse situated in his land and that in the morning when he came out from his house for nature call, he saw this accused quarreling with Pw.1/Balaram. He has also further deposed that when he tried to pacify the quarrel, both of them ran away. He has further deposed that thereafter he went to 29 Spl Case No.6/2014 the house of Pw.1/Balaram and found that Balaram had sustained injuries on the chest below the left side shoulder and on the shoulder and that wounds were bleeding. He has also further deposed that at that time Balaram told him that accused has assaulted him with a knife. This portion of evidence is corroborated with the evidence of Pw.1/Balaram. Now in the cross-examination this witness has admitted that his land is after the house of

Balaram, he went to see him as to what had happened. He has also further deposed in view of the distance between lemon plants being 15 feet, one cannot see what is happening on other side of 200 plantation, but it is to be noted that as per the version given by this Pw.4/Appugouda he had already come out of the house and proceeding to attend natural call and had an occasion to hear and see the quarrelsome voice of these two persons that which cannot be said unnatural so as to reject the evidence of this witness. He has also categorically deposed in the examination-in-chief that on the same day he alongwith Cw.8/Moulasab and Cw.10/Eknath took Balaram to Sindagi hospital in pick-up van and on the same day evening police had come to his 30 Spl Case No.6/2014 land and conducted spot panchanama and seized knife cover MO.5. Nothing has been elicited in his cross examination to suggest that he had any special enmity against this accused to score. In para-6 of cross examination it was suggested that this witness, complainant Balaram and others had kidnapped the accused and had taken him to Town Palace Hotel, Vijaypur and accused had escaped from their clutches, this suggestion has been denied by the witness. It is also suggested to him that when the accused had lodged complaint and his complaint was not received at that time, but at the instance of DySP Hulsagund, a false complaint

was registered against the accused. Even admitting for a moment that there was such incident, it was not further clarified as to what was the nature of complaint that was filed against this accused and what happened to it. Even otherwise, admittedly this incident of present complainant suffering these injuries at the hands of accused is of 1½ years after the alleged past electioneering incident. Therefore the evidence of Pw.4/Appugouda corroborates the evidence of Pw.1/Balaram regarding motive aspect and also regarding the incident. 31 Spl Case No.6/2014 Even for any reason, if the evidence of this Pw.4/Appugouda regarding the incident cannot be believed, then also he is the first person who has met this injured complainant apart from his family members, before whom the complainant Balaram had narrated the assault made by accused. Therefore as per Sec.6 of Indian Evidence Act also, version of this Pw.4/Appugouda cannot be brushed aside.

26. Similarly if we come to the evidence of Pw.5/Bhimaray Dashyal, who is none else the brother of complainant/Balaram, in his examination-in-chief has deposed that he too had gone to attend nature call in the morning hours, he saw his brother and accused were quarreling and on seeing him the accused ran way and thereafter he saw that his brother had sustained injuries. To

some extent he was treated as hostile by the prosecution and in the cross-examination by learned Public Prosecutor he came back to the version of prosecution. From paras-4 to Para-10 it is the cross-examination made by Public Prosecutor. But, by inadvertence, earlier to para-4 there should have been order portion allowing the 32 Spl Case No.6/2014 prosecution to treat this witness as hostile should have been typed, but it is missing. Even otherwise, we can very well make out that, portion at para-4 to para-10 of evidence of Pw.5 is elicitation made by the learned Public Prosecutor after the witness being treated as hostile. From his evidence, the evidence of Pw.4/Appugouda is stands corroborated regarding seizure of MO.5/knife cover from the land of Appugouda where the scene of occurrence is placed and that place is infact shown by this Pw.5/Bhimaray. Therefore Pw.9-Shivakumar DySP conducting spot panchanama as per Ex.P.2 in the presence of Pw.2/Ramanagouda shown by Pw.5/Bhimaray stands established. Nothing specific is elicited in the cross examination of this witness by defence counsel so as to reject his positive version. It is not the case of prosecution that Pw.4/Appugouda and this Pw.5/Bhimaray were together at one place and that they together saw the quarrel between the accused and complainant. Independently all of them had gone for easing out

in the morning hours and incidentally they saw this incident from different angles. Hence one cannot expect the Pw.4/Appugouda and 33 Spl Case No.6/2014 Pw.5/Bhimaray to depose in the same line, as such the discrepancies that highlighted by the defence from the evidence of Pw.4/Appugouda and Pw.5/Bhimaray will not create any doubt about prosecution case. I have already appreciated the evidence of Pw.6-Hanamant Dodamani who is one of the witnesses in whose presence Rs.50,000/- is stated to have been given by the complainant to the accused to get his wife's vote casted in favour of Suvarna.

27. No coming to the investigation part of the case. Pw.10/PSI Ranganath Neelannavar has deposed that on 30.12.2013 he received MLC intimation through phone at 7.00 am from Sindagi government hospital that injured Balaram is admitted with history of assault, therefore immediately he went to the government hospital Sindagi, met the doctor Sarojani Danagond i.e. Pw.8 who was treating the injured Balaram, enquired about his condition and in her presence only he has recorded the statement of complainant as per Ex.P.1 and after taking his signature on complaint returned to the police station and registered case at 8.45 am for the offences punishable U/s.504, 201, 307 of IPC and

Sec.3(1)(x), 3(2)(v) of Scheduled Castes and 34 Spl Case No.6/2014 Scheduled Tribes (Prevention of Atrocities) Act, 1989 and issued FIR to the court as per Ex.P.15.

28. Pw.7/PC-1358 Sadanand Suryavamshi has deposed that on 30.12.2013 PSI had entrusted him the duty of carrying FIR in Cr.No.317/2013. He took up the same at 12.30 pm and delivered the same to the court at 3.00 pm. It is to be noted that since FIR was also U/s.3(1)(x), 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, FIR was to be delivered to the Special Court situated at Vijaypur. Taking into consideration the distance between Sindagi and Vijaypur, it cannot be said that there was any deliberated delay in carrying the FIR and delivering it to the Special Judge at Vijaypur. Now coming back to the evidence of Pw.10/PSI, he has deposed that immediately after dispatch of FIR, he handed over further investigation to DySP Pw.9/Shivakumar, who inturn had instructed this PSI to apprehend the accused and accordingly on the same day he apprehended the accused in Haranal village and produced before DySP at 4.30 pm with report Ex.P.16. 35 Spl Case No.6/2014 29. Pw.9/DySP has deposed in para-4 of his examination-in-chief that when he was still in Otihal village, the PSI who had accompanied him

as per his instruction apprehended the accused and brought before him at 4.00 pm and that accused gave voluntary statement as per Ex.P.12 during the interrogation, saying that he would show the place where he had hidden the knife used in the crime. There is slight discrepancy in the timings one deposed by Pw.10/PSI with regard to the time at which the accused was apprehended and produced before DySP as mentioned in Ex.P.16 report and the time given by Pw.9/DySP. But if we see the answer given by accused in 313 statement to the question No.42 while disputing the time at which he was apprehended by PSI, he has answered to the effect that "3 UÀAmÉUÉ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ

¥sÉÆÃmÉÆà vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝg.É " When he É ÀÄPÉÆAqÀÄ £À£ÀߣÀÄß PÀgz

was questioned about DySP arresting him at 4.30 pm that was posed at question No.38, while disputing the same he has answered to the effect that "D ¢ªÀ¸À £À£U À É 36 Spl Case No.6/2014 ªÀÄÄAeÁ£É

É ÄÀ PÉÆAqÀÄ ºÉÆÃVzÁÝg.É " Therefore it goes ¥ÉÇðøÀgÀÄ oÁuÉUÉ PÀgz

to show that both these answers one given to question No.42 and question No.38 are false so far as timing of his arrest is concerned. Therefore the timings made mention by Pw.10/PSI in the report Ex.P.16 deserves to be accepted by ignoring slight discrepancies in timings mentioned by Pw.9/DySP.

30. Pw.9/DySP has deposed that after recording voluntary statement of accused as per Ex.P.12, he secured two panchas by name Pw.2/Ramanagouda and Cw.3/Basavaraj to assist him in seizure panchanama. Thereafter accused led him and two panchas to his house and produced the knife. He seized the same as per Ex.P.4 and photographed it as per Ex.P.5. Ex.P.4 seizure panchanama shows that it was drawn in between 4.45 pm to 6.00 pm. Pw.2 panch witness has deposed in his examination-in-chief that they went to the house of accused alongwith accused Cw.7, the accused removed one knife from his house and handed over the same to the police 37 Spl Case No.6/2014 under panchanama Ex.P.4 and infront of house of accused one photograph was taken as per Ex.P.5. He has admitted in his cross-examination that he is the friend of Pw.1/Balaram and he has also admitted the fact that it is the DySP who conducted the panchanama and that one police wrote the panchanama. It is to be noted that this witness happens to be the panch witness to both panchanamas drawn by DySP i.e. spot panchanama Ex.P.2 and this seizure panchanama Ex.P.4. Admittedly it is not the DySP who came to the house of accused and apprehended him, because again at the cost of repetition it is very much important to reproduce the answer given by this accused to question No.42 wherein he has stated

that "3 UÀAmÉUÉ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥sÉÆÃmÉÆÃ

vÉUz É ÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝg.É "

É ÀÄPÉÆAqÀÄ £À£ÀߣÀÄß PÀgz

15. Further, what is the grievous injury as defined

under Section 320 of IPC and for the sake of ready

reference, the same is culled-out hereunder : -

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.

16. As could be seen from the definition of

grievous injury and the above discussion, the oral

testimony of the injured/complainant has been rightly

appreciated by the trial Judge while holding that the

accused is guilty of the offence whereby the complainant

sustained injuries as is found in Ex.P.8. The oral testimony

of Doctor sufficiently corroborates the version of

complainant/injured. Even after re-appreciation of the

entire material on record and in the grounds urged by the

appellant, this Court does not find any legal infirmity or

perversity in the finding recorded by the Trial Judge.

17. However, there is sufficient force in the

arguments put-forth on behalf of the appellant that the

injury could have been classified as a grievous injury in the

absence of furnishing of the original x-ray film or the

radiological report.

18. The prosecution is bound to produce x-ray film

or the radiological report to establish that the particular

injury is a grievous injury. There is a fracture injury said to

have been sustained by the injured. In this regard, this

Court gainfully places its reliance on the decision of this

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".

19. Applying the legal principles enunciated in the

above case to the case on hand, the trial Judge ought to

have taken note of the fact of non filing of x-ray film or the

radiological report while classifying the injury No.1 as

grievous in nature as per Ex.P.8 and the oral testimony of

the Doctor is only in the form of opinion evidence as is

contemplated under Section 45 of the Indian Evidence Act.

In the absence of any clinching evidence placed on record,

classifying injury No.1 as grievous in nature cannot be

sustained in the eye of law. Therefore, to that extent,

appellant has made out a case for interference with the

finding recorded by the trial Judge in convicting the

accused/appellant for the offence punishable under

Section 326 of IPC. Having said thus, the action

attributable to the accused is scaled down from Section

326 to Section 324 of IPC as admittedly on account of

assault made by the appellant, complainant has sustained

bleeding injury.

20. It is also pertinent to note that the State did

not challenge the order of acquittal of the

accused/appellant under the provisions of SC/ST (POA)

Act. Therefore, taking note of the above facts, this Court is

of the considered view that the finding of the trial Judge in

convicting the accused/appellant for the offence punishable

under Section 326 of IPC needs an interference by

incorporating the offence under Section 324 of IPC and

accordingly, points No.1 and 2 are answered.

Regarding point No.3 :-

21. Having scaled down the offence punishable

under Section 326 to 324 of IPC insofar as the appellant is

concerned, in view of the fact that the accused is a first

time offender and without there being any criminal

antecedents, this Court is of the opinion that the accused

is entitled for grant of probation. Admittedly, the incident

is of the year 2013 and there is no further complaint

lodged against the accused. At this juncture, calling for

report from the Medical Officer would only result in futile

exercise. Taking note of the fact that there is no criminal

antecedents against the accused/appellant, this Court is of

the considered opinion that if the accused is directed to

execute a bond in a sum of `50,000/- with one surety for

the likesum to the satisfaction of the learned trial Judge

and ordered to pay a fine of `30,000/- as against `5,000/-

as ordered by the trial Judge for the offence punishable

under Section 324 of IPC, the ends of justice would be

met.

22. In the impugned judgment the trial Judge has

considered the fact of complainant obtaining compensation

from the Government under the relevant scheme, did not

claim any compensation from the appellant. The State has

not preferred any appeal against the order passed by the

learned trial Judge. Accordingly, this Court is of the

considered opinion that no amount needs to be paid as

compensation to PW.1. Hence, the entire fine needs to be

appropriated to the State as defraying expenses.

Accordingly, point No.3 is answered and following order is

passed :

ORDER

Appeal is allowed in part.

The judgment of conviction passed by the trial Judge

is modified as the accused/appellant is convicted for the

offence punishable under Sections 324 of IPC instead of

Section 326 of IPC and ordered to execute a bond in a sum

of `50,000/- with one surety for the likesum to the

satisfaction of the trial Judge for his good behavior, which

shall be in force for a period of two years from the date of

execution of bond and ordered to pay a fine of `30,000/-

for the offence punishable under Section 324 of IPC

inclusive of fine already imposed by the trial Court.

Time is granted for the appellant to execute a bond

and to pay the balance fine till 30.01.2022.

Office is directed to return the trial Court records

with a copy of this judgment forthwith.

Ordered accordingly.

Sd/-

JUDGE

sn