Mareppa S/O Yamunappa And Anr vs State Of Karnataka
2022 Latest Caselaw 2 Kant

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            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 REVISION PETITION No.200049/2014


BETWEEN:

1.     Mareppa S/o. Yamunappa
       Age: 23 YEARS, Occ: Coolie

2.     Sabanna S/o. Yamunappa
       Age: 32 years, Occ: Coolie

       Both R/o. Huda (B) Village
       Tq: Sedam, Dist: Gulbarga
                                              ... Petitioners

(By Sri B. C. Jaka, Advocate)


AND:

State of Karnataka
Through the Malkhed Police Station,
Tq: Sedam, Dist: Gulbarga
                                             ... Respondent

(By Sri Gururaj V. Hasilkar, HCGP)


     This Criminal Revision Petition is filed under Section
397(1) and 401 of Cr.P.C. praying to set aside the
judgment of conviction and order of sentence dated
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12.04.2012 passed in C.C.No.43/2010 by the JMFC,
Sedam and judgment and order dated 15.07.2014 passed
in Crl.A.No.48/2012 by the I Addl. Sessions Judge,
Gulbarga by allowing this revision petition, consequently
acquit the petitioner 1 and 2 for the offence punishable
under Sections 324 and 325 of IPC and pass such other
relief that this Court deems fit to grant in the
circumstances of the case.

      This petition coming on for Hearing this day, the
Court made the following:

                        ORDER

This revision petition is filed by accused Nos.1 and 2,

who have suffered an order of conviction passed in

C.C.No.43/2010 by the JMFC Sedam for the offences

punishable under Sections 341, 323, 324, 325, 504 read

with Section 34 of Indian Penal Code (for short 'IPC'),

which came to be partly confirmed in Crl.A.No.48/2012

passed by the I Additional Sessions Judge, Kalaburagi by

judgment dated 15.07.2014.

2. Brief facts, which are necessary for disposal of

the revision petition are as under:

Upon the complaint lodged against three persons

namely, Mareppa, Sabanna and Tippanna, the Malkhed

police registered a case in Crime No.84/2009 for the

offences punishable under Sections 341, 323, 324, 325,

504 read with Section 34 of IPC. In the complaint, it is

contended that on 18.06.2009, at about 07.30 p.m., when

the complainant was returning from Moula's Hotel after

consuming tea, in front of the house of Tippanna Kalunda,

accused No.1 abused the complainant - Anand and

restrained him from his free movement and at that

juncture accused No.2 came there and assaulted the

complainant with stick on his head, right knee and right

hand fingers and also accused No.3 assaulted the

complainant on his back with his hands. Thereafter, the

quarrel was pacified by the villagers. The police after

registering the case and after thorough investigation filed a

charge sheet against the accused persons for the aforesaid

offences.

3. The learned trial Magistrate after securing the

presence of the accused persons, framed charges. The

accused persons pleaded not guilty and accordingly, trial

was held.

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

prosecution in all examined ten witnesses as PWs.1 to 10

and relied on six documents, which are exhibited and

marked as Exs.P1 to P6 and one material object has been

marked as MO.1. After conclusion of the prosecution

evidence, accused statement as contemplated under

Section 313 of Cr.P.C. was recorded, wherein, accused

persons denied all the incriminatory materials. However,

the accused persons failed to place their version on record

about the incident either by examining themselves or by

filing written submission as is contemplated under Section

313(5) of Cr.P.C.

5. Thereafter, the learned trial Magistrate heard

the parties in detail and by judgment dated 12.04.2012

convicted the accused persons for the aforesaid offence

and passed an order of conviction, convicting the accused

persons for the offence punishable under Section 341 read

with Section 34 of IPC and sentenced to undergo

imprisonment for a period of 15 days with fine of Rs.200/-,

in default, simple imprisonment for a period of 8 days. For

the offence under Section 323 read with Section 34 of IPC,

sentenced to undergo simple imprisonment for a period of

6 months and to pay fine of Rs.200/- each, in default,

simple imprisonment for a period of 3 months. For the

offence under Section 324 of read with Section 34 of IPC,

sentenced to undergo simple imprisonment for a period of

6 months and to pay fine of Rs.1,000/-, in default, simple

imprisonment for a period of 6 months. For the offence

under Section 325 read with Section 34 of IPC, sentenced

to undergo simple imprisonment for a period of one year

and to pay fine of Rs.1,000/- each, in default, simple

imprisonment for a period of 6 months and for the offence

under Section 506 read with Section 34 of IPC, sentenced

to undergo simple imprisonment for a period of 6 months

and to pay fine of Rs.500/- each, in default of payment,

they shall undergo simple imprisonment for a period of 6

months.

6. Being aggrieved by the said conviction

judgment, accused approached the I Additional Sessions

Judge, Kalaburagi in Criminal Appeal No.48/2012. The

learned Sessions Judge after securing the records and

after hearing the arguments in detail modified the

judgment passed by the trial Magistrate by acquitting

accused No.3 and confirmed the order of conviction and

sentence as against accused Nos.1 and 2. Being aggrieved

by the same, accused Nos.1 and 2 have preferred this

revision petition.

7. It is pertinent to note that the State did not

prefer any appeal against the order of acquittal passed

against accused No.3 by the first appellate Court and

therefore the case against accused No.3 has become final.

8. In the revision petition, following grounds have

been urged:

a. That, the judgment and order under appeal is against the well established principles of law

and procedure, hence same is liable to be set aside.

b. That, the learned Magistrate has not properly appreciated the evidence particularly the evidence in cross examination, hence the order is prejudicial one.

c. That, the PW.1 and PW.3 have not identified the stick i.e., MO.1 and moreover police have not seized blood stained cloths of PW.1.

d. That, PW.4 Ramling who has cited as eye witness, but he has not supported the prosecution case.

e. That, PW.7 Devindra and PW.3 Prakash who were the recovery pancha and they have not supported the prosecution case.

f. That, there are many contradict evidence between PW.1 to PW3 and other witnesses.

g. That, there are many contradict evidence between PW.1 to PW.3 and other witnesses.

h. That, PW.10 Manayya who is the Investigation Officer has admitted in his cross examination

that he has not enquired and recorded the statements of independent witnesses or neighbouring witnesses those who are present in the scene of offence only on believing the officer witness and relative witnesses, which is not correct.

i. That, there are lot of contradiction in evidence of complainant and other witnesses, the learned Magistrate has not appreciated the evidence properly.

j. That, entire observation made by the Trial Court is the judgment are prejudicial towards the appellant. The appellants have not committed any offence and accordingly there is no any evidence to convict the appellants.

k. The appellants are professionally agriculturist and having wife and children and the prosecution has failed to lead the evidence of the material witnesses for which there is scope for drawing adverse inference against the prosecution.

9. The learned counsel for the revision petitioners

Sri B.C.Jaka by reiterating the grounds urged in the

revision petition contended that both the Courts have

wrongly appreciated the material evidence on record and

passed an order of conviction against the accused/revision

petitioners, resulting in grave injustice and thus sought for

allowing the revision petition. He also pointed out, in the

event this Court confirming the order of conviction, the

offence under Section 325 of IPC be scaled down to

offence under Section 324 of IPC and since the accused

persons are first time offenders, the Court may consider

the grant of probation by enhancing the fine amount.

10. Per contra, Sri Gururraj V. Hasilkar, learned

High Court Government Pleader supported the impugned

judgments. He further contended that the incident has

occurred in front of the house of Tippanna Kalkunda and

on account of the previous enmity in respect of financial

transaction, accused No.1 has restrained the pre

movement of the complainant and abused him in filthy

language and taking the advantage of the situation,

accused No.2 assaulted the complainant with a club on his

head and on the right knee and also on the right hand

resulting in injuries as is found in Exs.P3 and P4 and

therefore, both the Courts have justified in recording an

order of conviction and rightly passed an order sentence

and thus, sought for dismissal of the revision petition.

11. In view of the rival contentions of the parties

and having regard to the scope of the revision petition, the

following points would arise for consideration in this

revision petition:

1. Whether the finding recorded by the learned Magistrate that the accused Nos.1 and 2/revision petitioners are guilty of the offences punishable under Sections 341, 323, 324, 325, 504 read with Section 34 of IPC and partly confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?

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

on 18.06.2009, at about 7.30 p.m., in front of the house of

Tippanna Kalkunda, wherein, the complainant was

assaulted by accused Nos.1 and 2 stands established by

placing necessary oral and documentary evidence on

record. The material evidence on record clearly

establishes that there was a previous enmity between the

complainant and accused No.1 in respect of financial

transaction. Taking advantage of the situation, accused

No.2 has assaulted the complainant with a club on his right

knee and the complainant has sustained injuries as is

found in Exs.P3 and P4. The oral evidence of the

complainant, wherein, he has reiterated with graphic

details about the contents of the complaint, which has

been believed by the trial Magistrate as well as the learned

judge in the first appellate Court. The medical evidence on

record in the form of wound certificates marked as Exs.P3

and P4 and also oral testimony of the doctor, who has

been examined as PW.6 corroborates the oral testimony of

the complainant.

13. It is settled principle of law that the oral

testimony of the injured eyewitness must be kept on

higher pedestal and the material evidence on record in the

form of cross examination did not yield any contra material

so as to hold that PW.1 is falsely deposing against the

accused persons.

14. Taking note of the entire material evidence on

record and in the absence of any contra material evidence

placed by the defence, the trial Magistrate recorded a

finding that accused persons are guilty of the offences as

aforesaid.

15. The learned judge in the first appellate Court

after considering the material evidence on record found

that the evidence on record is not sufficient enough to

hook in accused No.3 in the case and therefore, the first

appellate Court acquitted accused No.3.

16. Since the State has not preferred any appeal

against the said order, the order against accused No.3

became final with the order passed by the leaned judge in

the first appellate Court in Crl.A.No.48/2012. The fact that

the first appellate Court acquitted accused No.3,

sufficiently establish that there is application of judicial

mind by the appellate Court while re-appreciating the

material evidence on record.

17. Having regard to the scope of this revision

petition, this Court reconsidered the material evidence on

record. It is settled principle of law that whenever a Court

has to classify a particular injury as a grievous injury as is

defined under Section 320 of IPC, the prosecution is

required to place on record the x-ray film or the

radiological report especially when there is an allegation

that there is a fracture.

18. In the case on hand, no such evidence is

placed by the prosecution even though Ex.P4 mentions the

taking of x-ray. In this regard, this Court gainfully places

its reliance on the Division Bench judgment 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, in the absence of any x-

ray film or the radiological report placed by the

prosecution, the injury noted by the doctor sustained by

the complainant - Anand cannot be treated as a grievous

injury.

20. Accordingly, to that extent, the finding

recorded by the trial Magistrate and confirmed by the first

appellate Court needs to be interfered in this revision

petition. Having said thus, the trial Magistrate ought not

to have convicted the accused/revision petitioners for the

offence punishable under Sections 325 of IPC and as such,

the action attributable to the accused to be scaled down to

under Section 324 of IPC having regard to the nature of

injury sustained by the complainant. Accordingly, to that

extent, point No.1 needs to be answered partly in the

affirmative.

21. Regarding point No.2:- This Court having

scaled down the offence from Section 325 of IPC to Section

324 of IPC and the revision petitioners/accused being the

first time offenders, this Court can grant the benefit of

probation to the revision petitioners. It is settled principle

of law that the role to be played by the Court while passing

an order of conviction is all together different from the role

to be played by the Court while passing an order of

sentence. Further, it is the mandatory duty of the every

Court, which passes an order of conviction to consider the

grant of probation in a given case as is held by the Apex

Court in the case of Chandreshwar Sharma v. State of

Bihar reported in (2000) 9 SCC 245 at paragraph No.3,

it is held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non- ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together

would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

22. In the case of Gulzar v. State of M.P

reported in (2007) 1 SCC 619, the Apex Court has held

as under:

"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-

existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

23. Applying legal principles enunciated in the

above case to the facts of the present case, this Court has

scaled down the offence from Section 325 of IPC to Section

324 of IPC, if the revision petitioners/accused are directed

to execute a bond in a sum of Rs.50,000/- each with one

surety for the likesum to the satisfaction of the trial

Magistrate for their good behavior, which shall be in force

for a period of two years and ordered to pay fine of

Rs.25,000/- each for all the offences inclusive of the fine

already imposed by the trial Magistrate, the ends of justice

would be met. Further, out of the fine amount recovered,

if a sum of Rs.40,000/- is ordered to be paid as

compensation to the complainant - PW1, there would be

sufficient compliance of Section 357 of Cr.P.C. as well.

Accordingly, point No.2 is answered and following:

ORDER

Revision petition is allowed in part.

The revision petitioners/accused are acquitted for the

offence punishable under Section 325 of IPC and convicted

for offence under Section 324 of IPC and ordered to

execute a bond in a sum of Rs.50,000/-

each with one surety for the likesum to the satisfaction of

the trial Magistrate, which shall be in force for a period of

two years from the date of execution of the bond and to

pay fine of Rs.25,000/- each for the offence punishable

under Section 324 of IPC.

Out of the fine amount recovered, sum of

Rs.40,000/- is ordered to be paid as compensation to the

complainant - PW1 under due identification and the

balance amount of Rs.10,000/- is to be appropriated

towards defraying expenses of the State.

In the event of breach of bond conditions, the

revision petitioners/accused are ordered to undergo simple

imprisonment for a period of one year.

Office is directed to return the trial Court records

with a copy of this judgment forthwith to the trial Court for

compliance of this order.

Revision petitioners/accused are granted time till

31.01.2022 to pay the enhanced fine amount and to

execute the bond as referred to above.

Ordered accordingly.

Sd/-

JUDGE

Srt