Karnataka High Court

Mahesh S/O. Bharamappa Hullatti vs State Of Karnataka on 7 June, 2022

Bench: V.Srishananda

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                                   CRL.A No. 100168 of 2014


     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                          BENCH

        DATED THIS THE 7TH DAY OF JUNE, 2022

                          BEFORE
       THE HON'BLE MR JUSTICE V.SRISHANANDA
      CRIMINAL APPEAL NO. 100168 OF 2014 (C-)
BETWEEN:

1.    SHRI.MAHESH S/O. BHARAMAPPA HULLATTI
      @ IRANNANAVAR
      AGE: 26 YEARS, OCC: COOLIE
      R/O. AARIKATTI, TQ: HIREKERUR
      DIST: HAVERI

2.    SHRI.LOKAPPA @ LOKESH S/O. DHARMAPPA
      JALAMMANAVAR, AGE: 24 YEARS,
      OCC: COOLIE
      R/O. AARIKATTI, TQ: HIREKERUR

      DIST: HAVERI

3.    SHRI.MARUTI S/O. BASALINGAPPA MANCHIKOPPA
      AGE: 39 YEARS,
      OCC: COOLIE
      R/O. AARIKATTI, TQ: HIREKERUR

      DIST: HAVERI

4.    SHRI.RAJU @ RAJA S/O KODEPPA IRANNANAVAR
      AGE: 26 YEARS, OCC: COOLIE
      R/O. AARIKATTI, TQ: HIREKERUR

      DIST: HAVERI

                                                  ...APPELLANTS

(BY SRI.M B GUNDAWADE, ADVOCATE)
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                                      CRL.A No. 100168 of 2014


AND:

1.   STATE OF KARNATAKA
     BY STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     DHARWAD BENCH, AT DHARWAD
     THROUGH CPI HIREKERUR

                                                     ...RESPONDENT

(BY SRI.PRAVEEN UPPAR, HCGP)

       THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
13.08.2014 AND ORDER OF SENTENCE DATED 14.08.2014 PASSED
IN S.C.NO.3/2011 BY THE II-ADDL. DIST. & SESSIONS JUDGE,
HAVERI      (SITTING   AT   RANEBENNUR)   AND   TO   ACQUIT   THE
ACCUSED/APPELLANTS FROM THE ALLEGED OFFENCES U/S 323,
353, 333, 504 R/W SEC. 34 OF IPC.

       THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                             JUDGMENT

1. Heard Sri.M.B.Gundawade, learned counsel for

the appellants and Sri.Praveen Uppar, learned High Court

Government Pleader for respondent-State.

2. This appeal is filed by the convicted accused

persons challenging the validity of the judgement passed

CRL.A No. 100168 of 2014

in Special Case No.3/2011 on the file of the II Additional

District and Sessions, Haveri Sitting at Ranebenuur.

3. Brief facts of the case are as under:

3.1 Karabasappa Shivappa Badiger lodged a

complaint with Hirekerur police station stating that he was

Conductor of KSRTC bus bearing No.KA-27-F/28 and

Rudrappa Basappa Yalavalli, PW.2 was the driver. On

07.07.2010 when they were on duty, the bus was moving

near Chikkerur at 5.00 pm. and when bus was returning

on the same route around 6.30 p.m., in order to fill the

water to the radiator of the bus, the bus was stopped near

tea shop and both of them had been to fetch water and

when they returned to the bus, 4 passengers approached

them and abused them in filthy language and asked them

why they have stopped the bus. At that juncture, the

driver tried to answer them. All of a sudden one of the

passenger assaulted the driver and others kicked him,

whereby he sustained injuries. The other passengers

CRL.A No. 100168 of 2014

pacified the quarrel and thereafter ambulance was secured

and he was shifted to Hirekerur hospital.

3.2 Bus was also taken to the depot through the

help of a mechanic and a spare driver. After getting the

first aid in Hirekerur hospital, Rudrappa was shifted to

Davangere hospital. On 08.07.2010 at 3.00 p.m.

conductor visited Hirekerur police station and lodged the

complaint about the incident that occurred on 07.07.2010

around 6.45 p.m.

3.3 Police after registering the case in Crime

No.98/2010 investigated the matter and filed charge

sheet. Presence of the accused was secured before the

District Court and trial was held in S.C.No.3/2011.

3.4 In order to prove the case of the prosecution,

Conductor of the bus is examined as PW.1 and injured

driver is examined as PW.2. PWs.3 to 13 also got

examined who were co-passengers, panch witnesses and

investigation agency. Prosecution relied on 12 documents

CRL.A No. 100168 of 2014

which were exhibited and marked as Exs.P.1 to P.12.

Among them, Ex.P.1 is the complaint, Ex.P.2 is the spot

mahazar, Ex.P.3 is the photograph, Ex.P.4 is KSRTC route

certificate, Ex.P.5 is requisition letter, Exs.P.6 and 7 are

the statements of prosecution witnesses PW.5 and 6,

Ex.P.8 is the letter issued by KPTCL, Hubballi, Ex.P.9 is the

wound certificate of PW.2, Ex.P.10 is the letter issued by

KSRTC depot Hirekerur, Ex.P.11 is the FIR and Ex.P.12 is

the hand sketch of the place of incident. The defence

relied on document which is marked as Ex.D.1, MLC

3.5 On completion of recording of the prosecution

evidence, accused statement as contemplated under

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

persons denied all the incriminating materials but have

failed to submit written submission as is contemplated

under Section 313(5) of Cr.P.C. Thereafter, Sessions

Judge heard the parties and convicted the accused for the

CRL.A No. 100168 of 2014

offence punishable under Sections 323, 353, 504 and 333

read with 34 of IPC.

4. It is that judgement which is under challenge

before this Court.

5. Reiterating the grounds urged in the appeal,

Sri.M.B.Gundawade, learned counsel for the appellants

contended that trial Court did not appreciate the material

evidence on record in a proper manner and passed the

impugned judgement and convicted the appellants and

sentenced them wrongly and sought for allowing the

appeal.

6. He also pointed out that in order to attract the

offence under Section 333 of IPC, there is no material

evidence on record inasmuch as there is no grievous hurt

caused to PW.2. In the absence of any X-ray or

radiological report filed by the prosecution and mere

mention of injury being grievous in nature in the wound

CRL.A No. 100168 of 2014

certificate, would not ipso facto make out a case for

convicting the appellants.

7. Per contra, learned counsel for the respondent

opposes the appeal grounds by stating that the injured

eyewitness has deposed before the Court categorically

about the assault made by accused persons and there is

no previous enmity or animosity against the appellants

(PWs.1 and 2) to file a false complaint against them and if

such persons are shown mercy, bad message would be

sent to the society at large and appellants would get

benefit of such orders and thus, sought for dismissal of the

appeal.

8. In view of the rival contentions of the parties,

the following points would arise for consideration:

1. Whether the prosecution is successful in

establishing all the ingredients to attract the

offence under Sections 323, 504, 333, 353

read with 34 of IPC?

CRL.A No. 100168 of 2014

2. Whether the impugned judgement of

conviction and sentence is suffering from legal

infirmity or perversity and thus calls for

interference?

3. What order?

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

of the prosecution complainant conductor of the bus is

examined as PW.1. He deposed in line with the complaint

averments. He specifically deposed that on 07.07.2010 the

bus bearing No.KA-27-F/28 was deputed to move from

Hirekerur to Chikkerur and return. The same is established

by placing necessary route certificate issued by KSRTC.

While returning, since the radiator water was boiling the

bus was stopped near Betkarur village and PWs.1 and 2

went to fetch water and the same was filled. At that time,

accused persons who were the passengers took up quarrel

with conductor and driver (PWs.1 and 2), abused them in

filthy language and one of the accused persons assaulted

and kicked PW.2 whereby he sustained injuries and other

CRL.A No. 100168 of 2014

co-passengers of the bus have pacified the quarrel.

Thereafter, by procuring the ambulance the injured was

shifted to Hirekerur hospital at the first instance and then

to Davangere for higher medical treatment.

10. In his cross-examination, suggestions made to

him that in order to help PW.2 he has lodged a false

complaint, was denied. No useful materials are elicited in

his cross-examination so as to disbelieve the testimony of

PW.1.

11. PW.2 is the driver of the bus and he also

deposed in line with PW.1. Further, he deposed about the

accused persons assaulting him with hands and kicked him

and identified accused persons before the Court. He

sustained fracture injury which is detailed in Ex.P.9-wound

certificate and he has supported the case of the

prosecution.

12. In his cross-examination suggestions made to

him that he has not sustained any injuries as is found in

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CRL.A No. 100168 of 2014

Ex.P.9 and he is falsely deposing as per the complaint

averments made by PW.1, the same was denied.

13. PW.3 is another driver who has taken the bus

after the incident to the depot. His evidence is formal in

nature.

14. PW.4 is a mechanic who also visited the place

of the incident after the incident was reported to the Depot

and he has also supported the case of the prosecution. In

his evidence also no useful materials are elicited by the

defence so as to disbelieve his evidence.

15. PWs.5 and 6 are the alleged eye witnesses and

co-passengers who turned hostile to the case of the

prosecution. PWs.7 and 8 are the mahazar witnesses to

Ex.P.2 who also turned hostile and not supported the case

of the prosecution. All these witnesses treated as hostile

and in the cross-examination by the prosecution no useful

materials are elicited.

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CRL.A No. 100168 of 2014

16. PW.10 is the official from the Electricity

Department who has given certificate that electricity was

there at the time of incident. His evidence is formal in

nature. PW.11 is the doctor who examined injured PW.2 in

Taluka hospital, Hirekeur and issued Ex.P.9. He admits in

his cross-examination that he has brought MLC register

which was marked as Ex.D.1 in support of entry No.168

pertaining to PW.2.

17. PW.12 is the depot manager has deposed about

the receipt of information and the altercation, and making

arrangements for bringing back the bus to the depot by

sending a spare driver and also issuing route certificate.

His evidence is also formal in nature.

18. PW.13 is the ASI Hamsabhavi police station

who registered and investigated the matter and filed

charge sheet. In his cross-examination suggestions made

that he has not conducted investigation properly, his

investigation was perfunctory in nature is denied by him.

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CRL.A No. 100168 of 2014

19. The above evidence is sought to be

reappreciated by the learned counsel for the appellants.

20. Sri.M.B.Gundawade, submits that in order to

prove grievous hurt as is contemplated under Section 320

of IPC, there is no production of X-ray or the radiological

certificate. It is pertinent to note that grievous hurt is

defined under Section 320 of IPC which reads as under:

"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."

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CRL.A No. 100168 of 2014

21. In order to prove the fracture, prosecution is

bound to produce original X-ray or radiological certificate.

Non-production of the same would act adversely to the

case of the prosecution as is held by 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

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CRL.A No. 100168 of 2014

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".

22. Applying the legal principles of law enunciated

in the above decision to the facts of the present case, the

injury noted by the doctor who issued Ex.P.9 cannot be

considered for the purpose of holding that the PW.2 has

sustained grievous injury. Accordingly, the finding

recorded by the trial Court that PW.2 has suffered

grievous injury and thus accused are liable to be convicted

for the offence under Section 333 of IPC cannot be

countenanced in law.

23. Insofar as other material evidence are

concerned, PWs.1 and 2 are the conductor and driver of

the bus who did not nurture enmity or animosity against

the accused. Admittedly, accused are passengers and they

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CRL.A No. 100168 of 2014

were enraged on account of bus stopped for mechanical

defect and stopped within jurisdiction of Hamsabhavi

police station to procure water and at that juncture,

altercation took place and fortunately accused have

assaulted PW.2. The material evidence on record is

sufficient enough to establish the said fact even in the

absence of any independent corroborative evidence

inasmuch as eyewitnesses to the incident having turned

hostile to the case of the prosecution. In the absence of

any previous enmity or animosity or in the absence any

other occasions for PW.2 to sustain injuries as is found in

Ex.P.9, this Court is of the opinion that the material

evidence on record is sufficient enough to hold that

appellants have joined hands together in assaulting PW.2

in the incident that occurred on 07.07.2010.

24. Minor contradictions elicited in the cross-

examination of PWs.1 and 2 are not sufficient enough to

hold that entire case of the prosecution is doubtful.

Accordingly, this Court is of the considered opinion that

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CRL.A No. 100168 of 2014

the prosecution is able to prove the offences alleged

against the accused for offence under Section 323, 353

and 504 of IPC and not able to establish all ingredients to

attract offence under Section 333 of IPC.

25. Hence, point No.1 is answered Partly in

Affirmative and point No.2 is answered Partly in Negative.

26. In view of the foregoing discussion, this Court

having confirmed conviction of accused for offence under

Section 323, 353, 504 read with 34 of IPC, suitable

modification needs to be passed in the final order. Point

No.3 is answered accordingly.

27. While passing the appropriate order, this Court

has taken into consideration that accused No.1 to 4 are

arrested on 24.07.2010 and were enlarged on bail on

22.11.2010. Roughly about four months the appellants

were in judicial custody. Hence, the following:

ORDER

Appeal is allowed in part.

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CRL.A No. 100168 of 2014

Conviction of appellants for the offence under Section

333 of IPC is hereby set aside and they are acquitted for

the same.

Conviction of the appellants recorded by the trial

Court for offences under Section 323, 353, 504 read with

34 of IPC is hereby maintained and custody period already

undergone by them between 24.07.2010 to 22.11.2010

during the trial is treated as period of imprisonment for

the aforesaid offences.

Instead of period of imprisonment and fine imposed

by the trial Court for the aforesaid offences, the appellants

are ordered to pay a fine of Rs.20,000/- each for the

aforesaid offences with default sentence of one year

simple imprisonment.

Out of the fine amount, Rs.75,000/- is ordered to be