Karnataka High Court

Chinnappa Shivappa Hangal vs State Of Karnataka on 30 May, 2022

Bench: V.Srishananda

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                                                CRL.A No. 2858 of 2012


             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                     DATED THIS THE 30TH DAY OF MAY, 2022

                                     BEFORE
                    THE HON'BLE MR JUSTICE V.SRISHANANDA
                      CRIMINAL APPEAL NO.2858 OF 2012 (C)
             BETWEEN:

             1.   CHINNAPPA SHIVAPPA HANGAL,
                  AGE: 48 YEARS, OCC: COOLIE.

             2.   IRAPPA @ VEERESH S/O. CHINNAPPA HANGAL,
                  AGE: 19 YEARS, OCC: COOLIE

                  BOTH 1 AND 2 ARE R/AT BINGAPUR,
                  HANGAL TQ., DIST: HAVERI.

                                                         ...APPELLANTS

             (BY SRI. R.M.JAVED, ADVOCATE)

             AND:

             STATE OF KARNATAKA
             THROUGH SHIGGAON PSR/BY SPP HIGH COURT,
             CIRCUIT BENCH,DHARWAD
MANJANNA                                                ...RESPONDENT
E
             (BY SRI. RAMESH CHIGARI, HCGP)
Digitally
signed by         THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
MANJANNA E
             OF CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND
             ORDER IN SPL. (SC/ST) C.NO.38/2008 PASSED BY THE SPL.
             JUDGE, HAVERI, VIDE ORDER DATED 06.09.2012 CONVICTING
             THE ACCUSED/APPELLANT FOR THE OFFENCES P/U/S 326 R/W
             34 OF IPC FOR TWO YEARS SIMPLE IMPRISONMENT AND FINE
             OF RS.10,000/- EACH AND FOR THE OFFENCES U/S 324 R/W
             34 OF IPC, SIMPLE IMPRISONMENT FOR ONE YEAR AND FINE
             OF RS.5,000/- EACH AND IN DEFAULT THE ACCUSED SHALL
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                                       CRL.A No. 2858 of 2012


UNDERGO FURTHER S.I. FOR 3 MONTHS FOR BOTH THE
OFFENCE AND THEREBY ACQUIT THE APPELLANT/ACCUSED
NO.1 AND 2.
     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

Heard Sri R.M.Javed, learned counsel for the appellants

and learned High Court Government Pleader for the

respondent - State and perused the records.

2. Present appeal is filed challenging the judgment

and order of conviction passed in Spl.(SC/ST) C.No.38/2008

on the file of the Special Judge at Haveri.

3. Brief facts of the case are as under:

A complaint came to be lodged that there was an

altercation on 17.11.2008 when the complainant and his

brother were consuming alcohol in Basavanna Temple.

Accused-appellants advised not to consume alcohol in the

temple and in that regard there was ill-will between them.

Following the said incident, on 19.11.2008 at about 6.00

p.m. brother of the complainant called accused No.1 who

was standing near the temple and when he refused to come

near the temple, around 7.30 p.m. complainant and his

CRL.A No. 2858 of 2012

brother proceeding infront of the house of the accused

persons, accused persons assaulted both of them with club.

Complainant sustained injury on his forehead and back and

near left ear. CW6 who is examined as PW2 sustained

injuries on his right hand and all over the body. Quarrel was

pacified. Based on the complaint, police registered a case in

Crime No.128/2008 for the offences punishable under

Sections 324, 326 and 504 read with Section 34 IPC and also

under Section 3(1)(x) of SC/ST (P.A.) Act, 1989. After

thorough investigation, police filed charge sheet against the

appellants-accused persons.

4. During the course of investigation, appellants-

accused persons were arrested, 2nd accused was enlarged on

bail on 26.11.2008 and 1st accused was enlarged on bail on

02.12.2008. The presence of the appellants was secured

before the trial court on receipt of the charge sheet and

charge was framed. Accused persons pleaded not guilty and

therefore trial was held.

CRL.A No. 2858 of 2012

5. In order to establish the case of the prosecution,

prosecution in all examined 18 witnesses as PW1 to 18 and

21 documentary evidence were also laid on by the

prosecution and marked as Exs.P1 to P21. Prosecution

further relied on 8 material objects which were marked as

MOs1 to 8.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C. was accorded wherein accused persons denied all the

incriminatory materials and did not choose to place any

written submission as contemplated under Section 313(5)

Cr.P.C. nor led any defence evidence.

7. Thereafter, learned Special Judge heard the

parties and after considering the oral and documentary

evidence on record coupled with the material objects relied

on by the prosecution, convicted the accused-appellants for

the offences punishable under Sections 324, 326 r/w Section

34 IPC. The learned Special Judge however acquitted the

accused-appellants for the offences punishable under Section

CRL.A No. 2858 of 2012

504 IPC, 3(1)(x) of SC/ST (P.A.) Act read with Section 34

IPC.

8. The accused persons were sentenced to pay fine

of Rs.10,000/- and 2 years imprisonment for the offences

punishable under Section 326 r/w Section 34 IPC and

sentenced the appellants for one year simple imprisonment

and fine of Rs.5,000/- for the offence punishable under

Section 324 IPC with default sentence.

9. The State has not preferred any appeal against

the judgment passed by the learned Special Judge acquitting

the accused for the offences punishable under Section 504

IPC and Section 3(1)(x) of SC/ST (P.A.) Act r/w Section 34

IpC. As such, the said finding has become final.

10. Being aggrieved by the order of conviction and

sentence, the accused have preferred the present appeal. In

the appeal following grounds have been raised.

• It is submitted that the trial court has mechanically passed the impugned order dated 6.9.2012 without ascertaining the facts

CRL.A No. 2858 of 2012

and without examining all the relevant aspects and practical position of the law.

• The trial court also failed in taking into consideration that though the I.A. collected the so-called bloodstained clothes and he had not sent it for FSL examination. This material aspect has been left out in the judgment. Hence, the judgment and order passed by the trial Court, on this ground has to be set aside.

• The trial court also failed to take note that the witnesses which they relied on the treatment given to them at KIMS hospital Hubli, no such document were placed before the trial court and there were contradictions and omissions in the documents on the prosecution relied hence the accused ought to be got acquittal.

• The trial court failed to note that the evidence of PW1 in his oral evidence stated that his brother came to the spot later but relied on Ex.P1, which says that both were together.

• Further the prosecution story was that the accused used chilly powder which was thrown in the eyes of complainant but no such document to substantiate the said defence of the prosecution.

CRL.A No. 2858 of 2012

• The prosecution relied on the testimony of PW14, doctor who treated the victims and stated that the eyes had no swelling, since the prosecution story was that chilly powder was used and thrown into the eyes this was not explained and hence this was also a material witness and the trial court had not taken into consideration of this aspect.

• The other important aspect was the PW15, the PSI who registered the case, he stated that and admitted in cross examination that he had not made any entry in the case register about the information received by him.

• The prosecution witnesses PW8 to 11 who are the panch witnesses had not supported the case but then also the trial court considering them hostile had convicted the accused for which they have not at all committed. Further the PW7 had also stated that he had not witnessed any incident but only heard that his father was assaulted and he stated that he had not give any statement to the police hence on this ground also the judgment and order be set aside.

CRL.A No. 2858 of 2012

• The PW3 also stated that she had not given any statement to the police and was a hearsay witness and PW4 and 5 who are mahazar witness who have not supported the case, and moreover the PW5 stated that police got removed the very cloth in KIMS, Hubli, but that essential piece of evidence was not sent to the FSL for examination though it is alleged to be collected by conducting panchanama.

• It was the case of prosecution that contended that the PW1 statement was recorded at Hubli hospital and the statement of PW1 is contrary to his oral version wherein he had denied the very same.

• The prosecution had not examined any doctor of KIMS Hubli and nor produced any document to substantiate this aspect. Hence, on benefit of doubt the accused could have been acquitted.

• The order passed by the trial court is untenable both in law and on merits and contrary to the law and hence on this ground itself the impugned order is liable to be set aside. Viewed from any angle, the judgment

CRL.A No. 2858 of 2012

and order passed by the trial court is unsustainable and to be set aside.

11. Reiterating the above grounds, Sri R.M.Javed,

learned counsel vehemently contended that it is the

complainant and PW1 and 2 who are responsible for the

genesis of the crime inasmuch as they sat in Basavanna

Temple and consumed the liquor and when questioned, a

false case has been foisted against the appellants herein and

thus sought for allowing the appeal. Alternatively learned

counsel further contended that in the event of this Court

maintaining the order of conviction, the conviction order

passed by the learned trial Judge for the offence under

Section 326 IPC is unsustainable inasmuch as there is no x-

ray or the radiological report placed by the prosecution to

prove the grievous hurt to PWs1 and 2 and thus sought for

allowing the appeal to that extent.

12. Per contra, learned High Court Government

Pleader supports the impugned judgment and contended that

the finding recorded by the learned trial Judge is well

founded inasmuch as PWs1 and 2 are injured eyewitnesses

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CRL.A No. 2858 of 2012

who have supported the case of the prosecution in toto. He

further contended that the oral testimony of the injured

eyewitnesses is supported by the wound certificates marked

at Exs.P17 and 18 along with oral testimony of the doctor

who issued Exs.P17 and 18. He further pointed out that

detailed cross-examination on behalf of the appellants did

not yield any material so as to doubt the case of the

prosecution and absolutely there is no material on record to

hold that the impugned judgment is suffering from legal

infirmity or perversity and thus sought for dismissal of the

appeal.

13. In view of the rival contentions of the parties, this

Court perused the materials on record. On such perusal of

the material on record, following points would arise for

consideration.

1. Whether the prosecution has successfully established the commission of offences punishable under Sections 324, 326 r/w Section 34 IPC?

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CRL.A No. 2858 of 2012

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?

3. Whether the sentence is excessive?

14. Regarding Point Nos.1 and 2:-In the case on

hand, in order to establish the case of the prosecution, in all

18 witnesses have been examined by the prosecution as

PWs.1 to 18. Among them, PWs.1 and 2 are the injured

eyewitnesses. The doctor-PW14 who is examined before the

Court, has issued Exs.P17 and 18.

15. Injured eyewitnesses Hanamantappa and

Benakappa have completely supported the case of the

prosecution.

16. The detailed cross-examination on behalf of the

appellants did not yield any material on record to show that

the oral testimony of PWs.1 and 2 are either false or

motivated. Admittedly, complaint came to be lodged without

any delay. The Dy.S.P. has visited the spot and conducted

the spot mahazar and seized the clubs which have been used

in the incident, they are marked before the Court as MOs.4

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CRL.A No. 2858 of 2012

and 5-bloodstained cloths examined by the FSL officer

specifically shows that there were bloodstains found on the

body. Dr.Muralidhar who is examined as PW14 has issued

Exs.P17 and 18 wherein the fracture injuries found on the

body of PWs.1 and 2. However, CT scan was done on PW1

and x-ray was taken to establish the fracture injury in

respect of PWs.1 and 2.

17. However, the original CT scan report or x-ray

certificate or for that matter the opinion of the radiologist is

not filed by the prosecution for the reasons best known to it.

18. The other material evidence on record also

supports the case of the prosecution. The very fact that the

learned trial Judge has acquitted the accused for the offence

punishable under Section 504 r/w 3(1)(x) of the SC/ST

(P.A.) Act shows that there were sufficient application of

mind by the learned trial Judge while passing impugned

judgment in properly appreciating the material evidence on

record.

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CRL.A No. 2858 of 2012

19. Therefore, the State having not preferred any

appeal against the acquittal of the appellants for the offence

punishable under Section 504 IPC r/w Section 3(1) (x) of the

SC/ST (P.A.) Act itself shows that the State is satisfied about

the impugned judgment. However, in order to prove the

offence under Section 326 IPC, it is just and necessary for

this Court to cull out the definition of grievous hurt as is

found in Section 320 IPC. Section 320 IPC reads as under:-

"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."

20. Whether an injury could be termed as a grievous

or not is no longer res-integra in view of the decisions of the

division bench judgment rendered in the case of State V/s

Sheenappa Gowda and others reported in 2011 (4)

KCCR 2759 (DB). The relevant portion of the said judgment

is culled out hereunder:

"11. Therefore, the question for determination is limited to find out whether the

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CRL.A No. 2858 of 2012

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 Indian Penal Code 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

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CRL.A No. 2858 of 2012

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."

21. Applying the principles of law enunciated in

Sheenappa (supra) to the facts of the case in Exs.P17 and

18, following injuries have been classified by PW14 as

grievous injuries.

"CT brain - 4645 - SAH, subarchnoid hemorrhage cerebral oedma with fracture of antro and lateral wall of left maxiller bone, left zygote bone and left TM joint."

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CRL.A No. 2858 of 2012

"1) X-ray right elbow of forearm - fracture and dislocation of lower and right ulna.

2) CT brain - 4540 - fracture of bilateral maxillary zygote arch with bilateral maxillary, - soft tissue swell over bilateral maxillary temporal region."

22. Since the prosecution has failed to place on

record the x-ray or the radiological report to establish that

PWs.1 and 2 have sustained grievous injuries as is

mentioned in Exs.P17 and 18, the order of conviction passed

by the learned trial Judge for the offences punishable under

Section 326 IPC cannot be countenanced in law and the

same needs to be set aside. The learned trial Judge has also

convicted the accused for the offence punishable under

Section 324 IPC which needs to be maintained having regard

to the fact that in the cross-examination of PWs.1 and 2,

there is no material elicited on behalf of the appellants to

show that they are deposing falsely against the appellants.

Further, in the absence of any previous enmity or animosity

between the appellants and PWs.1 and 2, why would PW1

file a false case against the appellants herein is a question

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CRL.A No. 2858 of 2012

that remains unanswered. Except denying the incriminatory

material while recording the accused statement, defence has

not put forth any material on record either by way of

furnishing the written submission as is contemplated under

Section 313(5) Cr.P.C. nor they lead in the defence evidence.

Under such circumstances, Point No.1 and 2 are answered

partly in the affirmative.

23. Regarding Point No.3:- In view of the finding of

this Court on Point Nos.1 and 2, the sentence needs to be

modified. Accordingly, Point No.3 is answered and pass the

following order:

ORDER

(i) The appeal is allowed in part.

(ii) The appellants are acquitted for the offence punishable under Section 326 IPC.

(iii) While maintaining the conviction of the accused for the offence under Section 324 IPC, the order of imprisonment of one year is modified to the extent the period spent in custody during the trial

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CRL.A No. 2858 of 2012

between 22.11.2008 to 02.12.2008 for the accused No.1 and 22.11.2008 to 26.11.2008 for accused No.2 and ordered to pay fine of Rs.30,000/- each for the offence punishable under Section 324 IPC.

(iv) Out of the fine amount recovered, sum of Rs.35,000/- is ordered to be paid as compensation to PW1 and sum of Rs.20,000/- is ordered to be paid to PW2 on proper identification.

      (v)      Balance amount of Rs.5,000/- is to be
               appropriated            towards         defraying
               expenses of the State.