A.A. Subramani vs The State Of Karnataka
2022 Latest Caselaw 10290 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 5TH DAY OF JULY 2022

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.71 OF 2013

BETWEEN:

A.A.Subramani,
S/o Appanna,
Aged 37 years,
Thanthipala Road,
Makkandur Village,
Madikeri Taluk,
Kodagu Dist.-571 201.                          .. Petitioner

 ( By Sri Harish Shiralakoppa, Advocate
   for Sri B.S.Prasad, Advocate )

AND:

The State of Karnataka,
By Madikeri Rural Police.                      .. Respondent

 ( By Sri K.Nageshwarappa, HCGP )

       This Criminal Revision Petition is filed under Section 397
and Section 401 of Cr.P.C. praying to set aside the judgment and
order dated 27.08.2012 passed by the Fast Track Court, Kodagu
at Madikeri in Crl.A.No.89/2007 and the order dated 17.10.2007
passed by the Principal Civil Judge (Jr.Dn.) and JMFC, Madikeri in
C.C.No.357/2007 and acquit the petitioner all the charges
levelled against him, in the interest of justice.

      This Criminal Revision Petition is coming on for Hearing
through Video Conferencing Hearing, this day the Court made
the following:
                                   2
                                                Crl.R.P.No.71/2013


                             ORDER

The present petitioner was tried as accused by the

Court of learned Prl.Civil Judge (Jr.Dn.), & J.M.F.C.,

Madikeri, (hereinafter for brevity referred to as the `trial

Court') in C.C.No.357/2007, for the offence punishable

under Section 326 of Indian Penal Code, 1860 (hereinafter

for brevity referred to as the `IPC') and was convicted by

its judgment of conviction and order on sentence dated

17.10.2007 and was sentenced accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.89/2007, before the Fast

Track Court, Kodagu at Madikeri, (hereinafter for brevity

referred to as the `Sessions Judge's Court'), which after

hearing both side, dismissed the appeal filed by the accused

by its judgment dated 27.08.2012. Being aggrieved by the

same, the accused has preferred the present revision

petition.

2. The summary of the case of the prosecution in the

trial Court was that on the date 23.11.2006, at about

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7.30 a.m., near paddy field of PW-3 K.A.Uthappa in

Makkandur village within the limits of complainant-Police

Station, when PW-2 - Lingappa objected to the accused for

the accused letting his cattles for grazing in the field of

PW-3 Uthappa, who was the master of the complainant, the

accused voluntarily assaulted the complainant (PW-2) with

a club and caused him grievous injuries and thereby

committed an offence punishable under Section 326 of IPC.

3. The accused appeared in the trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the guilt

against the accused, the prosecution got examined in all

five witnesses from PW-1 to PW-5 and got marked

documents from Exs.P-1 to P-5 and one material object was

produced at MO-1. However, neither any witness was

examined nor any documents were got marked on behalf of

the accused.

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4. The learned counsel for the petitioner and learned

High Court Government Pleader for the respondent-State

are physically present in the Court.

5. Heard the arguments from both side. Perused the

materials placed before this Court, including the trial Court

and Sessions Judge's Court's records.

6. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

7. After hearing the learned counsel from both side,

the only point that arise for my consideration in this revision

petition is:

Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Section 326 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

8. The learned counsel for the petitioner in his

argument submits that the X-ray report has not been

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produced by the prosecution. Though the complainant was

passed in front of Police Station before going to the

hospital, still, he did not lodge the complaint before going to

the hospital. He also stated that MO-1 was not smeared

with mud though the field was said to be with some mud.

With this, he submitted that the case of the prosecution

creates a doubt and prays to allow the revision petition.

9. The learned High Court Government Pleader for the

respondent-State submits that since both the trial Court and

Sessions Judge's Court have appreciated the evidence in

proper perspective and rightly held the accused guilty of the

alleged offences, no interference is warranted through this

revision petition.

10. In order to prove the alleged offences against the

accused, the prosecution got examined five witnesses from

PW-1 to PW-5. Among whom, PW-2 Lingappa is the

complainant and the alleged victim in the incident. In his

evidence he has stated that he has been working under

PW-3 K.A.Uthappa and attends to his agricultural work and

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grazing of the cattles since past four years prior to the

incident. On the date 23.11.2006, in the morning at about

7.30 a.m., when he had been to the land of his master

along with cattles and tied the cattles on the side of the

field to enable them to graze, he noticed the accused letting

his cattles free in the field of his master Uthappa. The

complainant objected to the same stating that his master

scolds him and says that the cattles of the accused have

destroyed the crops of paddy grown in his filed. Being

enraged by such an objection, the accused all of a sudden,

assaulted the complainant with the club which he was

holding and inflicted blows on his shoulder and left arm, by

which, the complainant sustained injuries, including fracture

of bone of the left arm. At his screaming, his master

Uthappa, who was attending the garden work adjacent to

the said land and CW-3 rushed to the spot to his rescue.

However, seeing CW-2 and CW-3 (PW-3 and CW-3) coming

to the spot, the accused leaving the club in the spot itself,

ran away from the place. The witness has further stated

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that his master shifted him to Madikeri hospital for

treatment in his jeep. For about a month, he was inpatient

in the hospital under treatment. He has identified the club

at MO-1 stating that with the very same club, the accused

had assaulted him.

He was subjected to a detailed cross-examination

wherein the witness adhered to his original version.

A suggestion made to him that while grazing the cattles, he

slipped down on a stone slab and sustained injuries was

not admitted as true by the witness.

11. PW-3/CW-2 Uthappa has given his evidence on the

lines of the evidence of PW-2. However, he has stated the

moment himself and CW-3 rushed to the spot, the accused

after seeing them, ran away from the place. He has also

stated that he collected the details of assault and reason of

the assault immediately after the incident from none else

than PW-2 himself. He has further stated that, immediately

it was him who shifted the injured to the hospital and got

him medically treated. He has further stated that he has

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shown the scene of offence to the police, who drew a scene

of offence panchanama as per Ex.P-2 and seized the club

used by the accused in assaulting the victim (complainant)

from the spot, which club the witness has identified at

MO-1.

The denial suggestions made to him in his cross-

examination were not admitted as true by the witness.

A suggestion made to the witness that the victim sustained

injuries at his own fault was not admitted as true by the

witness.

Thus, the evidence of PW-2, who is none else than the

victim in the incident and the evidence of PW-3, which has

been successfully withstood the cross-examination, goes to

show that it was the accused and accused alone who on the

date 23.11.2006, at about 7.30 a.m., assaulted the

complainant with the club at MO-1 for the reason of

complainant objecting him for grazing his cattles in the field

of PW-3.

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12. The evidence of PW-2 and PW-3 that due to the

assault made by the accused upon the complainant, he

sustained fracture of his left arm is further corroborated by

the evidence of PW-1, the doctor, who in his evidence has

stated that the injured was brought to him on 23.11.2006,

at about 10.45 a.m. with the history of assault. After he

examining the injured, he noticed a lacerated wound on the

left arm posterior aspect at the junction of lower 1/3rd and

upper 2/3rd and abnormal mobility with deformity at

junction of upper 2/3rd and lower 1/3rd of left arm. He has

further stated that the injured was admitted on the very

day at 11.00 a.m. and he was referred to Orthopaedic

Surgeon. The injured was also subjected to radiological

examination, wherein X-rays were taken. The witness has

further stated that, after going through the X-rays, he

noticed that the injured sustained fracture of shaft humerus

left side at middle third junction. He has opined that the

lacerated wound was simple in nature and fractured injury

was grievous in nature. He has identified the Wound

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Certificate at Ex.P-1 as the one issued by him. He has also

stated that if any person is assaulted with the club at MO-1,

the injuries found on the victim are possible to occur.

13. His evidence given in examination-in-chief could

not be shaken in his cross-examination. Though a

suggestion was made to the witness that if a person falls on

a rough surface after running speedily, he would sustain the

fractured injury and that any person falls on a sharp edged

floor, would sustain a lacerated wound, the witness has

admitted the said suggestion as true. But, merely by

making the said suggestion, it cannot be held that PW-2

had sustained injuries in the manner as suggested to PW-1

from the accused side. Needless to say that, possibility of

occurring a similar injury by some other means is not

sufficient to discard the evidence of the injured and the

medical doctor. The accused who made such suggestion, is

also required to show that it was in other means

suggested by him, the victim had sustained the injuries.

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14. In the instant case, except making a suggestion to

PW-1 and PW-2 about the alternative ways of possibility of

sustaining similar injuries, nothing more was elicited from

those two witnesses from the accused side. As such, the

argument of learned counsel for the petitioner that PW-2

himself must have sustained injuries at his fault by falling

down on a stone slab is not acceptable.

15. PW-4, the Head Constable has stated about he

receiving a MLC report from the District Hospital, Madikeri

on 23.11.2006 and proceeding to the hospital and recording

the statement from the victim as per Ex.P-4 and returning

to the Station, registering the same in their Station Crime

No.173/2006 against the accused and submitting a FIR to

the Court as per Ex.P-5.

He has further stated that, as asked by his Police

Inspector to continue the investigation, he proceeded to the

place of offence as shown by PW-3 and drew a scene of

offence panchanama as per Ex.P-2 and seized the club said

to have been used in the commission of crime and fallen in

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the place/spot of the incident under the very same

panchanama. The witness has identified the said club at

MO-1. PW-5 has stated about he collecting the Wound

Certificate as per Ex.P-1 from doctor and completing the

investigation, filing a charge sheet against the accused.

16. The evidence of PW-4 and PW-5 not only could

not be shaken in their cross-examination by the accused

side, but, also stands corroborated by the evidence of PW-2

and PW-3. Thus, the evidence of prosecution witnesses

proves beyond reasonable doubt that on 23.11.2006, at

about 7.30 a.m., on the side of the field belonging to PW-3

Uthappa in Makkandur village, the accused at the objection

raised by PW-2 for grazing his cattles in the said field,

voluntarily assaulted PW-2 inflicting a simple injury and a

grievous injury upon him.

17. The next question would be whether the weapon

used by the accused, which is at MO-1 answers the

requirement of Section 326 of IPC. Section 326 of IPC

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speaks about voluntarily causing hurt by dangerous

weapons or means. Section 326 of IPC reads as below :

" 326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

In the instant case, the alleged weapon said to have

been used in the commission of crime was a club measuring

about 3 ½ ft. in length. Both PW-2 and PW-3 have

identified the said club. According to PW-2, the accused

assaulted him using the said club on his body and

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more particularly on the left arm. Thus, when a club is used

as a weapon, which is of a measurement of not less than 3

½ ft. and the very description of the assault and the nature

of the injury itself would go to show that it has resulted in

causing simple injury and another grievous injury, which

grievous injury is in the form of fracture of an arm bone of

the injured, it has to be held that the accused has

voluntarily inflicted the said injury in a dangerous means.

Therefore, the act of the accused squarely falls under

Section 326 of IPC and thus, the prosecution has proved the

alleged guilt against the accused beyond reasonable doubt.

18. Thus, it is appreciating these evidence, both oral

and documentary, in their proper perspective, both the trial

Court, as well the Sessions Judge's Court have rightly held

the accused guilty of the alleged offences.

19. It is the sentencing policy that the sentence

ordered must be proportionate to the gravity of the proven

guilt of the accused. It must not be either exorbitant or for

namesake.

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20. In the instant case, the present petitioner/accused

was sentenced to undergo rigorous imprisonment for a

period of two years and to pay a fine of `5,000/-, in default

of payment of fine, to undergo simple imprisonment for a

period of six months. Since in the light of the facts and

circumstances of the case, the sentence ordered by the trial

Court and confirmed by the Sessions Judge's Court being

proportionate to the gravity of the proven guilt against the

accused, I do not find any perversity, illegality or error in

the impugned judgments warranting any interference at the

hands of this Court.

21. Accordingly, I proceed to pass the following:

ORDER

The Criminal Revision Petition is dismissed as devoid

of merits.

Petitioner/accused to surrender before the trial Court

within 45 days from today and to serve the sentence.

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Registry to transmit a copy of this order to both the

trial Court and also to the Sessions Judge's Court along with

their respective records forthwith to enable them to proceed

further in accordance with law.

Sd/-

JUDGE

bk/