Smt Lakshmi Bai W/O Sri. Ishwar ... vs Sub Inspector Of Police
2022 Latest Caselaw 5651 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.753/2012

BETWEEN:

SMT.LAKSHMI BAI
W/O SRI ISHWAR NAIK
AGED ABOUT 32 YEARS
HELPER, R/O NARAYANAPURA VILLAGE
SHIVAMOGGA TALUK & DISTRICT.
                                           ... PETITIONER

(BY SRI B.S.VENKATANARAYANA, ADVOCATE-AMICUS CURIAE)

AND:

SUB INSPECTOR OF POLICE
KUMSI POLICE STATION, SHIVAMOGGA
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU.                               ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 21.06.2012 PASSED BY THE
SESSIONS JUDGE, FAST TRACK COURT-I, SHIVAMOGGA IN
CRIMINAL APPEAL NO.140/2011 AND SET ASIDE THE JUDGMENT
AND CONVICTION DATED 23.09.2011 PASSED BY THE II ADDL.
CIVIL JUDGE AND JMFC, SHIVAMOGGA.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This petition is filed under Sections 397 and 401 of Cr.P.C.,

praying to call for the records, set aside the judgment of

conviction and order on sentence dated 21.06.2012 passed by

the Sessions Judge, I Fast Track Court, Shivamogga, in

Crl.A.No.140/2011 and the judgment of conviction and order on

sentence dated 23.09.2011 passed by the II Additional Civil

Judge and JMFC., at Shivamogga, in C.C.No.1109/2010 and

grant such other relief as deems fit under the facts and

circumstances of the case.

2. Heard the learned amicus curiae appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The factual matrix of the case of the prosecution is

that on 06.12.2009 at about 7:00 a.m, in Narayanapura Village,

the accused had picked up a quarrel with CW.1 in the matter of

putting garbage, abused him a in filthy language with intent to

provoke public peace, criminally trespassed into the house of

CW.1 and assaulted on her left hand by means of a club caused

grievous bleeding injury. Hence, the prosecution based on the

complaint-Ex.P1 registered a case for the offences punishable

under Sections 504, 326, 448 of IPC, investigated the matter

and filed the charge-sheet. This petitioner was secured before

the Trial Court and pleaded not guilty. The prosecution mainly

relied upon the evidence of the injured-P.W.1 and her husband

as P.W.2. PWs.3 and 4 are the police witnesses and P.W.5 is the

Doctor, who treated the injured and also relied upon the

documents - Exs.P1 to P5. The prosecution in order to prove

the offence under Section 326 of IPC, relied upon the evidence

of P.W.5 and the documents viz., Wound Certificate - Ex.P4 and

X-ray - Ex.P5.

4. The Trial Court after considering both oral and

documentary evidence placed on record, convicted the petitioner

for an offence punishable under Section 326 of IPC and

sentenced to undergo rigorous imprisonment for a period of

three years and also imposed a fine of Rs.5,000/- and imposed

sentence for a period of one year and to pay a fine of Rs.1,000/-

for the offence punishable under Section 448 of IPC. The Trial

Court also ordered to pay a sum of Rs.3,000/- to CW.1/P.W.1 as

compensation out of the fine amount imposed. Being aggrieved

by the judgment of conviction and order on sentence, an appeal

is filed before the Appellate Court by this petitioner and the

Appellate Court in Crl.A.No.140/2011, on re-appreciation of the

evidence available on record, confirmed the judgment of

conviction and order on sentence of the Trial Court. Hence, the

present revision petition is filed before this Court.

5. The learned amicus curiae appearing for the revision

petitioner would vehemently contend that both the Courts have

failed to take note of the document - Ex.P1, wherein, the very

presence of P.W.2 has not been stated. P.W.2 claims that he was

also present at the time of the incident and he only pacified the

galata. The learned amicus curiae also brought to the notice of

this Court Ex.P1, wherein, P.W.1 has stated that when both of

them were quarreled with each other, the villagers pacified

the galata. Hence, it is clear that P.W.2 was not present at the

time of the incident. The learned amicus curiae for the petitioner

also would contend that none of the eyewitnesses are examined

before the Trial Court and only examined the husband and wife

and both of them are interested witnesses. These aspects have

not been considered by the Trial Court as well as the Appellate

Court. The evidence of the Doctor is also very clear that if any

person falls from the floor, there are chances of sustaining the

similar type of injuries and the same is also not considered by

both the Courts. Hence, it requires an interference of this Court.

6. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that

the evidence of PWs.1 and 2 is consistent. Apart from that, the

medical evidence - P.W.5 categorically deposes that the nature

of injury i.e., fracture suffered by P.W.1 could be caused if the

club is used for committing the offence. The evidence of P.W.5

corroborates with the evidence of PWs.1 and 2. Hence, no

grounds to interfere with the findings of the Trial Court.

7. In reply to the arguments of learned High Court

Government Pleader appearing for the State, the learned amicus

curiae for the petitioner would submit that there was a delay in

lodging the complaint. The statement of witnesses was recorded

on 14.12.2009. According to the prosecution, an incident was

taken place on 06.12.2009 and the delay has not been properly

explained.

8. Having heard the learned amicus curiae appearing

for the petitioner and the learned High Court Government

Pleader appearing for the State and on perusal of the material

available on record, the points that would arise for consideration

of this Court are:

(i) Whether the Trial Court as well as the Appellate Court have committed an error in confirming the conviction and sentence and whether it requires an interference of this Court by exercising the revisional jurisdiction?

(ii) What order?

Point No.(i):

9. Having heard the respective counsel and also on

perusal of the material available on record, it is emerged in the

evidence that both the accused and P.W.1 are the neighbours

and also the incident was taken place with regard to dumping

garbage. On perusal of the complaint-Ex.P1, it is clear that with

regard to dumping garbage, a frequent quarrel was taking place

between them. On the date of the incident also, the petitioner

quarreled with the complainant. It is an allegation that she

trespassed into the house and assaulted with club and she is

escaped from the said blow and came out from the house.

Hence, this petitioner has thrown the club at the spot and left

the house, as a result, she has sustained the injuries to the left

hand and also she took treatment at Mc. Gann Hospital,

Shivamogga as an inpatient. It is stated in the complaint that

this incident was witnessed by the villagers and they pacified the

galata. The learned amicus curiae for the petitioner rightly

brought to the notice of this Court that this statement was

recorded in the hospital on 14.12.2009 almost after 8 days of

the incident. Even after 8 days of the incident, no where, it is

specifically mentioned that P.W.2, husband of P.W.1 was

present.

10. Having taken note of the contents of Ex.P1, which

came into existence after 8 days of the incident and also taking

into note of the evidence of P.W.2, though he claims that he was

very much present at the time of the incident and he pacified the

galata and his evidence cannot be believed. P.W.2 also not

stated anything about he took the injured to the hospital but the

medical records also discloses that the injured witness P.W.1 did

not go to the hospital on the very same day, but went to hospital

on 07.12.2009. The Wound Certificate - Ex.P4, discloses that the

history was given that the assault was taken place in the house

of the victim and specific averment is made in the history that

this petitioner only committed injury and also it discloses that

the victim was admitted to the hospital on 07.12.2009 and

discharged on 31.12.2009 and almost 24 days she was in the

hospital as an inpatient. The records also discloses that injury

No.1 was grievous in nature i.e., there was a fracture in the

middle 1/3rd intramedullary nail. The Doctor evidence is also

clear that who has been examined as P.W.5 that he gave the

treatment on 07.12.2009 and found three injuries. Out of that,

there was a fracture of left hand.

11. In the cross-examination, except eliciting that the

club was not placed before him for opinion and it is elicited that

if any person falls from the floor, there is a chance of sustaining

a similar type of injury. But the fact is that when the injured

went to the hospital, she gave the history by naming this

petitioner that she only inflicted injury with the club trespassing

into the house of P.W.1. P.W.1, narrated how an incident was

taken place. She claims that her husband pacified the galata.

No doubt, there was an improvement in the oral evidence of

P.W.1 regarding presence of P.W.2. I have already relied upon

the document- Ex.P1, wherein, the very presence of P.W.1 is not

stated. In order to consider the evidence of P.W.1, in the cross-

examination of P.W.1 except eliciting that both are neighbours

and there is a drainage system in between both the houses,

nothing is elicited. The defense taken in the cross-examination

of P.W.1 that her husband only assaulted with the club since he

was assaulting her under the influence of alcohol and the said

suggestion was denied. Except this answer, and also the fact

that this petitioner is not having the husband and she is a

widow, nothing is elicited to discredit the evidence of P.W.1.

12. The evidence of P.W.1 and the evidence of the

Doctor, P.W.5 corroborate with each other and MO.1 - Club was

also seized and the same was marked. No other independent

witnesses are examined. Both the Trial Court as well as the

Appellate Court considered the evidence available on record. The

Trial Court having considered the nature of injuries and also the

ingredients of the offence under Section 326 of IPC, discussed in

paragraph No.16. In paragraph No.18 also taken note of the

evidence of P.W.1 as well as the evidence of P.W.5, Doctor and

accepted the case of prosecution.

13. Regarding the delay is concerned; no doubt, there

was a delay of 8 days. But the case of the prosecution is that

the injured was taken treatment as an inpatient at Mc. Gann

Hospital. She had sustained a grievous fracture injury in her left

hand and as such she was badly engaged in receiving the

medical treatment at the hospital as an inpatient. It has to be

noted that Ex.P1 clearly discloses that on 14.12.2009, on

information, the police went and recorded the statement of the

injured in the hospital itself. When such being the case, the very

contention that there was a delay in lodging the complaint

cannot be accepted. The Appellate Court in the appeal on re-

assessing the evidence available on record, taken note of the

evidence of P.W.1 in paragraph No.15 and also taken note of the

evidence of P.W.5-Doctor in paragraph No.19 and other two

witnesses are also the police witnesses viz., PWs.3 and 4 and the

reasoning is given in paragraph No.20 and also regarding nature

of injuries are concerned, the reasoning is given in paragraph

No.21 and over all assessment was made in paragraph No.23

and confirmed the judgment of conviction and order on sentence

of the Trial Court.

14. Having considered the grounds urged before this

Court and also looking into the material available on record, I

have already pointed out that the evidence of P.W.2 is not

credible regarding his presence is concerned. However, P.W.1's

evidence is consistent and also the evidence of P.W.5, the Doctor

is very clear that he only treated the injured and the injured

gave the history that there was an assault by this petitioner in

her house and the main witnesses are PWs.1 and 5 and the

evidence of P.W.1 is supported by the medical evidence of

P.W.5. When such being the case, the Trial Court and the

Appellate Court, taking into note of the evidence particularly,

PWs.1 and 5 and also the documentary evidence i.e., Wound

Certificate regarding the nature of injuries is concerned, rightly

comes to the conclusion that the prosecution has proved the

case against the petitioner. When such being the case, in the

absence of any perversity and incorrectness, this Court cannot

exercise the revisional jurisdiction. Hence, I do not find any

ground to interfere with the finding of the Trial Court as well as

the Appellate Court and a well reasoned order is passed.

15. Now coming to the sentence is concerned, the Court

has to take note of the nature of the injuries; no doubt, there is

a fracture of left hand of P.W.1. Apart from that, the Court has

to take note of the circumstances under which an incident was

taken place. The incident was taken place with regard to

dumping of garbage and also it is an admitted fact that both are

neighbours, the same has to be taken note of. Both the Courts

failed to take note of these aspects while sentencing the

petitioner for a period of three years and also confirming the

same by the Appellate Court. This is the incident of the year

2009 and almost 14 years have been elapsed.

16. Having taken note of the fact that they are

neighbours and the incident was regarding dumping of garbage

and there was no any prior ill will between them and there was

no any motive and it is on account of quarrel between the

neighbours. Hence, it is appropriate to reduce the sentence from

three years to six months and at the same time, taking into note

of the injured took the treatment at Mc. Gann Hospital,

Shivamogga for a period of 24 days, it is appropriate to enhance

the fine amount from Rs.5,000/- to Rs.50,000/- in respect of an

offence punishable under Section 326 of IPC.

17. Regarding the offences punishable under Sections

445 and 448 of IPC, are concerned, the punishment is for a

period of one year and fine imposed was of Rs.1,000/-. Hence,

the same is reduced to two months simple imprisonment and

fine amount is unaltered. If the petitioner fails to pay the

compensation amount of Rs.50,000/- within eight weeks from

today, the petitioner shall undergo the sentence imposed by the

Trial Court.

Point No.(ii):

18. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is allowed in part.

(ii) The impugned judgment of conviction dated 21.06.2012 passed by the Sessions Judge, I Fast Track Court, Shivamogga, in Crl.A.No.140/2011 and the judgment of conviction dated 23.09.2011 passed by the II Additional Civil Judge and JMFC., at Shivamogga, in C.C.No.1109/2010, are hereby confirmed.

(iii) In respect of an offence punishable under Section 326 of IPC, the accused/petitioner was

sentenced to undergo rigorous imprisonment for a period of three years and also imposed a fine of Rs.5,000/-, the same is reduced to six months and the fine amount is enhanced from Rs.5,000/- to Rs.50,000/-.

(iv) In respect of the offences punishable under Sections 445 and 448 of IPC, are concerned, the simple imprisonment is for a period of one year and fine imposed was of Rs.1,000/-, the same is reduced to two months simple imprisonment and the fine amount is unaltered.

(v) If the petitioner fails to pay the compensation amount of Rs.50,000/- within eight weeks from today, the petitioner shall undergo the sentence as imposed by the Trial Court. On deposit, the Trial Court is directed to pay an amount of Rs.45,000/- to the injured-PW1 on proper identification.

The registry is directed to pay a fee of Rs.5,000/- to the learned amicus curiae appearing on behalf of the petitioner.

Sd/-

JUDGE

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