Ramesh S/O Kalyani Madankar vs The State
2022 Latest Caselaw 313 Kant

                          1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 10TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION No.200089/2021


BETWEEN:

RAMESH S/O KALYANI MADANKAR
AGE. 32 YEARS, OCC. COOLIE WORK,
R/O. TADAKAL VILLAGE,
TQ. ALAND,
DIST. KALABURAGI-585302.
                                        ... PETITIONER

(BY SRI. SUNDARKAR AMRUT, ADVOCATE)


AND:

THE STATE THROUGH
ALAND POLICE STATION,
TQ. ALAND,
DIST. KALABURAGI.
(NOW REPRESENTED BY SPECIAL
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH-585105).
                                      ... RESPONDENT

(BY SRI. GURURAJ V.HASILKAR, HCGP)
                               2




     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO
SETTING ASIDE THE JUDGMENT AND ORDER IN
C.C.NO.164/2010   DATED   19.06.2019   PASSED  BY
LEARNED PRL. JMFC ALAND AND SAID ORDER CONFIRMED
BY THE LEARNED I ADDL. SESSIONS JUDGE, KALABURAGI
IN CRL.APPEAL NO.46/2019 ON DATED 12.01.2021, FOR
THE OFFENCE P/U/SEC.326 OF IPC OF ALAND P.S.

     THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                       ORDER

This revision petition is filed by the accused, who has

been convicted for the offence punishable under Section

326 of Indian Penal Code (for short 'IPC') and ordered to

undergo simple imprisonment for a period three years and

to pay fine of Rs.5,000/- by the Trial Magistrate in

C.C.No.164/2010, which was confirmed in

Crl.A.No.46/2019 by the I Additional District and Sessions

Judge, Kalaburagi by judgment dated 12.01.2021.

2. Brief facts of the case are as under:

A complaint came to be lodged contending that on

03.10.2009 at about 7.30 a.m. in Tadkal village, Aland

taluka, the accused/revision petitioner picked up a quarrel

with the complainant under the pretext of filling of public

tap water. In that regard, there was a ill - feeling

between the complainant and the accused. On the very

same day, the complainant's son brought two pots of

water on bicycle carrier and called the complainant to lift

the said pots. Complainant came out of the house lifted

the pots from the bicycle and was about to proceed to

towards his house, the accused appeared on the scene

with a knife in his hand and stabbed the complainant on

the both sides of body, whereby, the complainant

sustained bleeding injuries.

Neighbours started gathering and at that juncture,

the accused/revision petitioner ran away from the spot.

Neighbourers having noticed blood injuries on the body of

the complainant, they shifted him to the hospital.

Thereafter, a complaint came to be lodged against the

accused.

The police after thorough investigation filed a charge

sheet against the accused for the aforesaid offences.

3. After receipt of the complaint, the learned

Magistrate took cognizance of the matter and framed

charges. The accused pleaded not guilty and therefore

trial was held.

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

prosecution in all examined twelve witnesses as PWs.1 to

12 and relied on seven documents, which are exhibited

and marked as Exs.P1 to P7. The knife with which the

accused said to have assaulted the complainant has been

marked as MO.1 and bloodstained shirt and cotton baniyan

have been marked as MOs.2 and 3 by the prosecution.

5. After conclusion of the prosecution evidence,

accused statement as contemplated under Section 313 of

Cr.P.C. was recorded, wherein, accused has denied all the

incriminatory materials found against him in the

prosecution evidence. However, the accused failed to

place his version on record about the incident either by

examining himself or by filing written submission as is

contemplated under Section 313(5) of Cr.P.C.

6. Thereafter, the learned trial Magistrate heard

the parties in detail and passed an order of conviction,

convicting the accused for the offence punishable under

Section 326 of IPC and sentenced him undergo simple

imprisonment for a period of three years and to pay fine of

the Rs.5,000/- and imposed fine of Rs.2,500/-, which was

ordered to be paid as compensation to the complainant.

7. Being aggrieved by the said conviction

judgment, the accused preferred an appeal before the I

Additional District and Sessions Judge, Kalaburagi. The

learned Sessions Judge after securing the records and

after hearing the arguments in detail dismissed the appeal

field by the accused and confirmed the order of conviction

and sentence passed by the trial Magistrate. Being

aggrieved by the same, the accused has preferred this

revision petition.

8. In the revision petition, following grounds have

been urged.

x That, the lower court has not at all considered the oral and documentary evidence of the respondent police and all the depositions of witnesses have been cross examined by the advocate for revision petitioner. The lower court has not at all appreciated the grounds taken while cross examining the respondent witnesses, while delivering the judgment under appeal. Therefore the judgment of conviction passed by the lower court is fit for set aside. That the lower court has not considered and appreciated the depositions of witnesses, while at the time of evidence. The independent witnesses in this case have not supported the case of prosecution. The court below has passed erroneous and impugned judgment only on the basis of assumptions and presumptions of facts. Therefore the lower court has ought not to consider the depositions of those witnesses, who are not trust worthy as per law. Hence the judgment under appeal is fit for set aside and rejected.

x That, the Pw-1 is examined by the trial court by name Laxman S/o Siddappa hangarki, he is the witness of the charge sheet, but he was not supported to the case of the prosecution turned hostile.

x That, PW-2 Shivaraya S/o Nagappa Hangarki, hw as supported to the case of the prosecution and stated that, at the time of incident, the accused has assaulted with knife to both backside at that time sustained injuries and injured has shifted to the Basaveshwar Hospital Kalaburagi. But in the cross examination of PW-2 he was admitted that, accused and the complainant what purpose quarrel have been arising I have no knowledge. And the accused house is long distance from the complainant house and further stating that there is no knowledge of enmity between the accused and complainant and the complainant is my friend. And further admitted that, I have not rescued the quarrel between them.

x That, the Hon'ble trial Court examined PW-3 yashwant is spot panch and he was supported to the case of the prosecution. In the cross examination of said PW-3 he was admitted that, the complainant is son of my sister because he was related witness and further admitted that, I have no knowledge to read and write the said my relative has called me at the at time I have residing in my house, the said place CW-3 and 4 is present, the said Panchanama have not read over in my presence and I have no knowledge the boundaries of the spot.

x That, further the trial court has examined PW-4 Jagadevi is the wife of CW-1 i.e., complainant, she was supported to the case of the prosecution, but the concerned police were not made the enquiry in my village or hospital and the accused houses are side of the village and further stated that, accused had not good minded person that's why he was assaulted with knife to her husband. And further rPW-5 Sunil also son of the complainant CW-1 Basavaraj and he was also supported to the case of the prosecution.

x That, PW-6 Basavaraj Siddappa Dole is the complainant and also injured he was suported to the case of the proseuction at the time of incident, the accused Ramesh has assaulted with knife in my back both side and sustained injury at that time he was crying, at the time of incident CW-4,5,8 and 10 are came to the spot and rescued the quarrel, he was identified the M.O.1 before the court and identify their shirt and banian M.O.-2 and 3, the police have recorded the statement in the hospital, in the cross examination of said PW-6 he was admitted that, at the time of recording the statement the complainant is unconscious, he was no knowledge, police have what contents are written in the complaint and they have not read over in the presence of complainant, only police have taken the thumb signature on the statement and further admitted that, the CW-4 and 5 houses are long distance from my house at the time of going second nature call, some persons are gone before my house, before unconscious of the complainant, he was seen CW- 4 and 5 only, other persons are not seen. There s no

enmity between accused with me. And further the Hon'ble court has examined PW-7 and 8 both witnesses are not supported the case of the prosecution, those witnesses are turned hostile, prosecution, the PW-7 and 8 are seizure panch witnesses because they are not supported to the case of the prosecution and clearly stated before the trial court, police have not seized and articles in the presence of said both witness.

x That, the Hon'ble court has examined PW-9 by name Annappa S/o Sharanappa Dole, he was supported to the case of the prosecution and he is the brother of complainant by name Basavaraj. Further he was admitted in the cross examination that, house of the complainant and said house of Annappa is long distance and the said Annappa is residing in long distance house and further stated that, there is no enmity between the accused and complainant. But further stating that, I have seen the incident, because further stating that, the accused where he was ran away from the spot I do not know. But clearly comes to the knowledge that he was not at all prsent at the spot.

x That PW-10 is investigating officer, he was investigate the case and collected the wound certificate from CW-11, then after completion of investigation filed the charge sheet against the accused before the court in the cross examination counsel has denied the same.

x That, PW-11 Ramayya is ASI and he was gone to Basaveshwar Hospital, after receiving the MLC and recorded the statement of the injured orally and after recording the statement come return to the police station and case have been registered in Crime No.209/2009 against the accused after register of the case, F.I.R send to the concerned judicial magistrate and higher authority. On the same day conducted the Panchanama in the presence of CW-2 and 3 ad recorded the statement of CW-4,5,8 and 10. And further on dated 12.10.2009 seizure panchanama has conducted in the presence of CW-6 and 7 and seized the articles of blood stain, shirt ad banian and further on 04.12.2009 in the presence of same panchas, police have seized the knife from the

accused in Aland Bus-Stand and arrested him and produced before the concerned court. Further investigation referred to t higher authority.

x That, PW-12 Sharnaagouda Patil, is the medical officer and examined the injured and issue the Wound Certificate of injured Basavaraj, the injury have been mentioned in the would certificate in detail, in the cross examination of PW-12 admitted that, such injuries can be caused a person fallen on the Toor cutting sticks and further admitted that, he was not specifically mentioned in the wound certificate how many hours has been passed the incident clearly to mentioned in the wound certificate. After closing of the evidence, the court has comes to conclusion that, accused has committed the offence and the Hon'ble court was pleased to pass the judgment for confection against the accused for the offence s U/Sec.326 of I.P.C for the period of 3 years with fine amount of Rs.5000/- in default of payment of fine, he was undergone simple imprisonment for the period of 06 months. Further after passing the judgment, accused ahs approached the appellate court and filed the appeal challenging the order of conviction before the I Addl. Sessions Judge at kalaburagi in Crl. Appeal No.46/2019 said sessions court also confirmed the lower court judgment and passed the order on dated 19th June, 2019, the appellant is suffered and there is no legal knowledge to prefer the further revision before the concerned court. Therefore this revision petition is preferred before the Hon'ble Court for delayed to file the revision petition.

x That, the lower court has not at all given appropriate and proper reasons to hold the act of the revision petitioner as sufficiently proved. The lower court has miscarriage the facts and evidences while delivering the judgment under appeal is fit for set aside.

x That, the revision petitioner is poor, innocent and doing coolie work, he is only the source of bread earning member for whole surviving family members. Therefore, while delivering the judgment under appeal, the court below has not considered these facts which are against

the natural law and justice. Hence the judgment under appeal is fit for set aside.

x That this revision petitioner have been made as suffer for every offence committed within the jurisdiction of the respondent polices station without any lawful reason. Even though the seizure panchas have not supported to the case of the prosecution turned hostile, the lower court has not at all considered the each and every facts of the case and also the depositions of all witness. Hence this present judgment is fit for set aside.

x There is no credible evidence placed on record by the prosecution to hold this revision petitioner guilty in respect of the charged offence. The contradictions, embellishments and improvements have neither been noticed nor correctly appreciated.

x The courts below have failed to notice that the panchas are interested witnesses and their evidence being untrustworthy calls for rejection.

x The prosecution has failed to bring home the guilt of the accused beyond all reasonable doubts.

x All witnesses are related and they are interested witnesses.

9. Reiterating the above grounds, the learned

counsel for the revision petitioner vehemently contended

that both the Courts have wrongly appreciated the

material evidence on record and passed an order of

conviction against the accused/revision petitioner resulting

in grave injustice and thus sought for allowing the revision

petition.

10. Per contra, the learned High Court Government

Pleader supported the impugned judgments contending

that PW.6 is the injured eyewitness, whose evidence must

be kept on higher pedestal and therefore, the impugned

judgments are proper and valid. Hence, 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/revision petitioner is guilty of the offences punishable under Section 326 of IPC and 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 03.10.2009, at about 7.30 a.m., wherein, the

accused/revision petitioner assaulting the complainant with

knife when the complainant was in the process of taking

the water pot from the bicycle carrier, which was brought

by his son stands established by placing necessary oral

and documentary evidence on record.

13. It is found from the material evidence on

record that the incident is admitted by the defence,

inasmuch as, while cross examining PW.4, it was

suggested that the accused is mentally ill and therefore he

assaulted the complainant. In fact, such a plea though

taken by the accused, no evidence is placed on record to

state that the accused is mentally ill. Therefore, he was

not having full control over his body and he was in a

position to understand the consequences of assault by a

knife to the human body.

The injured eyewitness is the complainant and he is

examined before the trial Magistrate as PW.6. In his

examination in chief, he has deposed with graphic details

about the incident. In his cross examination, there is no

suggestion that the accused is mentally ill and therefore,

he has assaulted him. A suggestion is also made in the

cross examination of this witness that the accused and the

complainant are neighbourers and there is ill-will between

two families and they are not in taking terms. However,

such suggestion is denied by PW.6. Therefore, the defence

taken by the accused that he is mentally not sound and

therefore he was not having senses properly and

understand the consequences of assault by a knife to a

human body cannot be countenanced. Further, since the

incident is admitted and the wound certificate issued by

the doctor, who is examined as PW.12 discloses the blood

injury as per Ex.P6, the trial Magistrate was justified in

convicting the accused/revision petitioner.

14. What is a grievous injury is defined in Section

320 of IPC. The same is culled out hereunder for ready

reference:

"320. Grievous hurt.--The following kinds of hurt only are desig-nated 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."

15. On careful perusal of the grievous injuries as

mentioned in Section 320 of IPC when compared with the

injury noted by PW.12 in Ex.P6, this Court cannot accept

the contention urged on behalf of the respondent - State

that the injuries mentioned in Ex.P6 could be treated as

grievous injuries. Moreover, in Ex.P6, it has been

mentioned that x-ray has been taken in respect of the

abdomen region, but, the x-ray report mentions that there

is normal study. Further, there is no x-ray report filed or

radiological report filed along with Ex.P6 so as to

substantiate that injuries noted by the doctor PW.12 in

Ex.P6 could be classified as grievous injuries. In Ex.P6,

following injuries have been noted:

"1. Deep CLW over left lateral over chest below the scapular region about 5cm x 4cm 'c' visceral part oozing out of blood.

2. CLW over lower surface of abdomen on left side of back measuring 4cm x 3cm.

3. CLW over right lateral surface of lower abdomen measuring about 5 x 2cm."

16. On perusal of the above, this Court is unable to

classify any one of those injuries as is defined in Section

320 of IPC.

Further, before accepting an injury as a grievous

injury, it is necessary for the prosecution to produce the x-

ray film and radiological report. Having not produced the

x-ray or radiological report, the trial Magistrate ought not

to have accepted the oral testimony coupled with Ex.P6 in

classifying the above mentioned injuries as grievous in

nature. Moreover, the oral evidence of PW.12 is in the

nature of opinion evidence as is defined under Section 45

of the Indian Evidence Act. Therefore, for want of

necessary, injuries referred to above cannot be classified

as grievous injuries.

17. In this regard, this Court gainfully places its

reliance 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 reasonable 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. Applying the legal principles enunciated in the

above case to the case on hand, the finding recorded by

the trial Magistrate confirmed by the first appellate Court

that the accused/revision petitioner is guilty of the offence

punishable under Section 326 of IPC cannot be

countenanced in law, as, the injuries mentioned in Ex.P6

cannot be termed as grievous injuries. But, since there is

blood injury has been caused by use of knife - MO.1, the

action attributable to the accused can be traced to offence

under Section 324 of IPC. Accordingly, point No.1 is

answered partly in the affirmative.

19. Regarding point No.2: This Court having

scaled down the offence from Section 326 of IPC to Section

324 of IPC in view of the foregoing discussion, the

sentence that has been ordered by the Trial Magistrate

confirmed by the first appellate Court also needs to be

interfered. There is no material on record to show that

accused is a known criminal in the absence of criminal

antecedents. In other words, he is a first time offender

and there is no complaint against the accused/revision

petition till now. As such, directing the accused to execute

a bond in a sum of Rs.25,000/- with one surety for the

likesum to the satisfaction of the trial Magistrate for his

good behavior which shall be in force for a period of two

years and ordered to pay fine of Rs.50,000/- 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 - PW6, 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 order of

conviction passed by Trial Magistrate and confirmed by the

First appellate court is modified as under:

The revision petitioner/accused is for the offence

punishable under Sections 324 of IPC and ordered to

execute a bond in a sum of Rs.25,000/-

with one surety to the satisfaction of the trial Magistrate

for him good behaviour, which shall be in force for a period

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

fine of Rs.50,000/-.

Out of the fine amount recovered, sum of

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

complainant - PW6 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, or failure

to pay the fine amount the revision petitioner/accused is

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 order forthwith to the trial Court for

compliance of this order.

Revision petitioner/accused is granted time till

15.02.2022 to pay the enhanced fine amount and to

execute the bond.

In view of disposal of main petition, I.A.1/2021 does

not survive for consideration.

Ordered accordingly.

Sd/-

JUDGE Srt