Gopala vs State By
2023 Latest Caselaw 2203 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF APRIL 2023

                          BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                  CRL.R.P. No.626/2016
                           c/w
      CRL.R.P. Nos.665/2016, 677/2016 & 836/2016

IN CRL.R.P.No.626/2016:

BETWEEN:

1.    NANJEGOWDA
      S/O LATE GIRIYAPPA
      GED ABOUT 51 YEARS.

2.    CHIKKAPUTTAIAH
      S/O HONNAGALAIAH
      AGED ABOUT 41 YEARS.

3.    NARAYANA
      S/O PATEL THIMMAPPA
      AGED ABOUT 40 YEARS.

4.    GOPALA
      S/O MALIGAPPA
      AGED ABOUT 40 YEARS.

5.    SEENA
      S/O MALIGAPPA
      AGED ABOUT 35 YEARS.

6.    NARAYANA
      S/O LATE GIRIYAPPA
      AGED ABOUT 45 YEARS.

7.    DHANANJAYA
      S/O LATE GIRIYAPPA
      AGED ABOUT 35 YEARS.
                                  2




8.     BALAKRISHNA
       S/O LATE GIRIYAPPA
       AGED ABOUT 40 YEARS.

9.     GIRISHA
       S/O LATE GIRIYAPPA
       AGED ABOUT 44 YEARS.

       ALL ARE RESIDENTS OF
       KOTTAGARAHALLI
       MAGADI TALUK - 562 120.               ..PETITIONERS

(BY SRI HASMATH PASHA, SR. COUNSEL A/W
    SRI TEJAS, ADV.)

AND:

STATE OF KARNATAKA
BY MAGADI POLICE
RAMANAGARA DISTRICT
PIN CODE - 562 120.                          ..RESPONDENT

(BY SRI KRISHNA KUMAR K.K, HCGP)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTIONS AND
SENTENCES DATED 13.01.2011 PASSED IN C.C.NO.279/2001 ON
THE FILE OF THE PRL. CIVIL JUDGE AND J.M.F.C., MAGADI WHICH
IS CONFIRMED IN IN CRL.A.NO.10/2011 AND THE SENTENCE IS
ENHANCED IN CRL.A.NO.7/2011 AND CRL.A.NO.28/2011 BY
JUDGMENT AND ORDER DATED 18.04.2016 ON THE FILE OF THE
III ADDL. DISTRICT AND S.J., RAMANAGARA AND CONSEQUENTLY,
ACQUIT THE PETITIONERS FROM THE ALLEGED CHARGES.


IN CRL.R.P.No.665/2016:

BETWEEN:

KUMARA @ SHIVAKUMARA
AGED ABOUT 47 YEARS
S/O HONNAGALAIAH
HINDI TEACHER
SRI GANGADHARESHWARA
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GIRLS HIGH SCHOOL
B.K. ROAD, MAGADI TOWN
RAMANAGARA DISTRICT
PINCODE - 561 201

R/AT KOTTAGARAHALLI VILLAGE
MADABAL HOBLI, MAGADI TALUK
RAMANAGAR DISTRICT
PINCODE - 561 201.                           ..PETITIONER

(BY SRI SHARATH S GOWDA, ADV.)

AND:

STATE BY
MAGADI P.S
MAGADI - 561 201.                            ..RESPONDENT

(BY SRI KRISHNA KUMAR K.K., HCGP)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT DATED 18.04.2016
PASSED IN CRL.A.NO.10/2011 AND CRL.A.NO.28/2011 FROM THE
FILE OF III ADDL. DIST. AND S.J., AT RAMANAGARA AND THE
JUDGMENT AND ORDER OF CONVICTION DATED 13.01.2011
PASSED IN C.C.NO.279/2001 FROM THE FILE OF THE PRL. CIVIL
JUDGE AND JMFC AT MAGADI AND ACQUIT THE PETR. FOR THE
OFFENCES P/U/S 143,147,148,324, 326,427,406 R/W 149 OF IPC.


IN CRL.R.P.No.677/2016:

BETWEEN:

GOPALA
AGED ABOUT 44 YEARS
S/O PATEL THIMMAPPA
KOTTAGARAHALLI VILLAGE
SRI GANGADHARESHWARA
MADABAL HOBLI, MAGADI
TALUK, RAMANAGARA
DISTRICT - 561 201.                          ..PETITIONER

(BY SRI SHARATH S GOWDA, ADV.)
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AND:

STATE BY
MAGADI P.S
MAGADI - 561 201.                            ..RESPONDENT

(BY SRI KRISHNA KUMAR K.K, HCGP)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT DATED 18.04.2016
PASSED IN CRL.A.NO.10AND 28/2011 FROM THE FILE OF III ADDL.
DIST. AND S.J., AT RAMANAAGARA AND THE JUDGMENT AND
ORDER OF CONVICTION DATED 13.01.2011 PASSED IN
C.C.NO.279/2001 FROM THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC AT MAGADI AND ACQUIT THE PETR. FOR THE OFFENCES
P/U/S 143, 147, 148, 324, 326, 427, 406 R/W 149 OF IPC.


IN CRL.R.P.No.836/2016:

BETWEEN:

NARAYANA
S/O. TIMMEGOWDA,
AGED ABOUT 62 YEAR,
KOTTAGARAHALLI VILLAGE,
MADIBAL HOBLI,
MAGADI TALUK,
RAMANAGAR DISTSRICT.                         ..PETITIONER

(BY SRI C.N.RAJU, ADV.)

AND:

1.     STATE OF KARNATAKA
       BY MAGADI POLICE
       BY S.P.P., HIGH COURT OF
       KARNATAKA
       BANGALURU - 560 001.

2.     NANJEGOWDA
       AGED ABOUT 46 YEARS
       S/O LATE GIRIYAPPA
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     SECOND DIVISION ASSISTANT
     SSLC BOARD, MALLESHWARAM
     BANGALORE - 560 003.

3.   CHIKKAPUTTAIAH
     AGED ABOUT 36 YEARS
     S/O HONNAGALAIAH
     KOTTAGARAHALLI VILLAGE
     MADIBAL HOBLI
     MAGADI TALUK
     RAMANAGAR DISTIRCT - 562 120.

4.   KUMARA @ SHIVAKUMARA
     AGED ABOUT 42 YEARS
     S/O HONNAGALAIAH
     HINDI TEACH
     SRI GANGADHARESHWARA
     GIRLS HIGH SCHOOL
     BOK. ROAD, MAGADI TOWN
     RAMANAGARA DISTRICT - 562 120.

5.   GOPALA
     AGED ABOUT 39 YEARS
     S/O THIMMAPPA
     KOTTAGARAHALLI VILLAGE
     MADIBAL HOBLI
     MAGADI TALUK
     RAMANAGAR DISTIRCT - 562 120.

6.   NARAYANA
     AGED ABOUT 36 YEARS
     S/O PATEL THIMMAPPA
     KOTTAGARAHALLI VILLAGE
     MADIBAL HOBLI
     MAGADI TALUK
     RAMANAGAR DISTIRCT - 562 120.

7.   GOPALA
     AGED ABPIT 35 YEARS
     S/O MALIGAPPA
     KOTTAGARAHALLI VILLAGE
     MADIBAL HOBLI
     MAGADI TALUK
     RAMANAGAR DISTIRCT - 562 120.
                               6




8.    SEENA
      AGED ABOUT 35 YEARS
      S/O MALIGAPPA
      KOTTAGARAHALLI VILLAGE
      MADIBAL HOBLI
      MAGADI TALUK
      RAMANAGAR DISTIRCT - 562 120.

9.    NARAYANA
      AGED ABOUT 40 YEARS
      S/O LATE GIRIYAPPA
      KOTTAGARAHALLI VILLAGE
      MADIBAL HOBLI
      MAGADI TALUK
      RAMANAGAR DISTIRCT - 562 120.

10.   DHANANJAYA
      AGED ABOUT 35 YEARS
      S/O LATE GIRIYAPPA
      KOTTAGARAHALLI VILLAGE
      MADIBAL HOBLI
      MAGADI TALUK
      RAMANAGAR DISTIRCT - 562 120.

11.   BALAKRISHNA
      AGED ABOUT 35 YEARS
      S/O LATE GIRIYAPPA
      KOTTAGARAHALLI VILLAGE
      MADIBAL HOBLI
      MAGADI TALUK
      RAMANAGAR DISTIRCT - 562 120.

12.   GIRISHA
      AGED ABOUT 39 YEARS
      S/O LATE GIRIYAPPA
      KOTTAGARAHALLI VILLAGE
      MADIBAL HOBLI
      MAGADI TALUK
      RAMANAGAR DISTIRCT - 562 120.          ..RESPONDENTS

(BY SRI HASMATH PASHA, SR. COUNSEL A/W
    SRI TEJAS N, ADV., FOR R-2, 3, R-6 TO R-12;
    SRI SHARATH S GOWDA, ADV., FOR R-4 & R-5)
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     THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 18.04.2016 PASSED BY THE III
ADDL. DIST. AND S.J., RAMANAGARA IN CRL.A.NO.7/2011 AND
CONSEQUENTLY    ALLOW     THE    SAID  CRL.A.NO.7/2011   BY
SENTENCING THE ACCUSED FOR MAXIMUM PUNISHMENT OF FINE
AND IMPRISONMENT FOR THE OFFENCE COMMITTED BY THEM
AND THEREBY AWARD A SUM OF RS.10,00,000/- AS
COMPENSATION TO THE PETR. (VICTIM).

     THESE PETITIONS HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING:

                           ORDER

1. The above captioned criminal revision petitions arise

out of the judgment and order of conviction and sentence

dated 13.01.2011 passed by the Prl. Civil Judge & JMFC,

Magadi, in C.C.No.279/2001, and therefore, they are clubbed,

heard together and disposed of by this common order with

the consent of the learned Counsel for the parties.

2. Facts leading to filing of these four criminal revision

petitions narrated briefly are, on the complaint of PW-1 -

Narayana, FIR was registered against 12 persons in Crime

No.43/2001 for the offences punishable under Sections 143,

147, 148, 114, 324, 427, 506 read with 149 IPC. In the

complaint, it was averred that accused no.1 - Nanjegowda

was convicted in a criminal case on the complaint of PW-1 -

Narayana and in connection with the same, accused no.1 had

ill-will against PW-1. On 22.04.2001, the complainant - PW-1

along with PW-2 - Jayaramaiah was returning from his

coconut garden and when he reached near Anganawadi

School, accused no.1 - Nanjegowda and 11 others who were

named in the complaint came there holding deadly weapons

like wooden club and chopper in their hands. Accused no.1

abused PW-1 for having filed a criminal case against him in

which he was convicted and at that time, accused no.6 - Patel

Thimmappa instigated the other accused persons to assault

PW-1. All the accused persons thereafter assaulted the

complainant - PW-1 with the weapons they were holding in

their hand. At that time, PW-2 - Jayaramaiah tried to

interfere, but the accused persons threatened him with dire

consequences to his life, and therefore, PW-2 got frightened

and started screaming. On hearing the scream of PW-2, PW-4

- Shivamma and her daughter PW-9 - Nethravathi came to

the spot and tried to rescue PW-1. At that time, accused no.5

- Narayana allegedly assaulted PW-3 with wooden club on her

head and accused nos.2 & 10 assaulted PW-9 with wooden

clubs on her right palm. In the said incident, the complainant

alleged lost his watch. The complainant's wife and relatives

took him to the Government Hospital at Magadi for treatment

and while he was under treatment, the police attached to

Magadi Police Station had come to the Government Hospital,

Magadi, and recorded the statement of PW-1, based on

which, FIR was registered in Crime No.43/2001 against 12

persons who were named in the complaint.

3. The police after investigation had filed a charge sheet

against all the 12 accused persons for the offences punishable

under Sections 143, 147, 148, 114, 324, 326, 427 & 506 read

with 149 IPC. During the pendency of the case before the

Trial Court, accused no.6 was reported dead, and therefore,

the case against him stood abated. The other accused

persons who had appeared before the Trial Court had pleaded

not guilty and claimed to be tried. Hence, the case was

posted for recording the evidence of prosecution witnesses.

4. In support of its case, the prosecution had examined 11

witnesses as PWs-1 to 11 and also had got marked 19

documents as Exs.P-1 to P-19. The accused who had denied

the incriminating circumstances available against them on

record, during the course of their statement under Section

313 Cr.PC, in support of their defence had examined three

witnesses as DWs-1 to 3 and had produced three documents

as Exs.D-1 to D-3. The material objects which were seized

during the course of investigation were produced and marked

before the Trial Court as MOs-1 to 3.

5. The Trial Court, thereafter, heard the arguments on

both sides and by its judgment and order dated 13.01.2011

convicted the accused for the offences for which they were

charged. Against the said judgment and order of conviction

and sentence, accused nos.1 to 5 & 7 to 12 had filed

Crl.A.No.10/2011 and seeking enhancement of sentence

imposed by the Trial Court against the accused, the defacto

complainant had filed Crl.A.No.7/2011 under Section 372 of

Cr.PC, while the State had filed Crl.A.No.28/2011 under

Section 377 of Cr.PC. The Appellate Court by its judgment

and order dated 18.04.2016 dismissed Crl.A.No.10/2011 and

Crl.A.No.7/2011, and partly allowed Crl.A.No.28/11 filed by

the State and enhanced the sentence imposed upon the

accused by the Trial Court for the offence under Section 326

IPC. Being aggrieved by the same, accused nos.1, 2, 5 & 7 to

12 have filed Crl.R.P.No.626/2016, while Crl.R.P.

Nos.665/2016 & 677/2016 are filed by accused nos.3 & 4,

respectively, and Crl.R.P.No.836/2016 is filed by the defacto

complainant challenging the judgment and order passed by

the Appellate Court dismissing Crl.A.No.7/2011 filed by him

under Section 372 Cr.PC for enhancement of sentence.

6. Learned Senior Counsel appearing for the petitioners in

Crl.A.No.626/2016 submits that the courts below have erred

in convicting the accused for the offences alleged against

them. He submits that the material on record do not prove

that PW-1 had suffered grievous injuries in the incident that

had taken place on 22.04.2001. He submits that there is no

material available on record to show that PW-1 was either

treated or got admitted in Government Hospital at Magadi

and PW-7 who was the duty doctor in the said hospital does

not speak of any treatment given to PW-1 or about his

admission in the hospital. He also submits that there is no

material to show that PW-1 was referred to K.C.General

Hospital, Bengaluru, by the doctors in Magadi Government

Hospital. He submits that PW-10 - doctor has admittedly not

treated PW-1 and Ex.P-18 - wound certificate has been issued

by him based on the x-ray report/sheets of PW-1. He submits

that the Radiologist who had taken the x-ray of PW-1 and the

orthopedician who had treated PW-1 were not examined by

the prosecution. He submits that the x-ray sheets or reports

of PW-1 was not produced by the prosecution, and therefore,

the courts below have erred in coming to a conclusion that

PW-1 had suffered grievous injuries. In support of this

contention of his, he has placed reliance on the judgment of

the Division Bench of this Court in the case of STATE VS

SHEENAPPA & OTHERS - 2010 SCC OnLine 5294. He submits

that PW-2 is a stock witness of PW-1 and PWs-4 & 9 are the

close relatives of PW-1 and no independent witnesses have

been examined by the prosecution. He submits that the

material on record would go to show that the complainant

was inimical towards the accused persons, and therefore,

though he had not suffered any injury, he had filed a false

complaint against the accused and had got himself admitted

in K.C.General Hospital at Bengaluru and created documents

to show that he had suffered grievous injuries. He submits

that attempt is made to falsely implicate the accused. In

support of his arguments, he has placed reliance on the

judgments of the Hon'ble Supreme Court in the case of

MASJI TATO RAWOOL VS STATE OF MAHARASTRA - (1971)3

SCC 416, STATE OF U.P. VS JAGGO @ JAGDISH - (1971)2

SCC 42, STATE OF RAJASTHAN VS RAJENDRA SINGH - 1998

SCC (Cri) 1605.

7. Learned Counsel appearing for accused nos.3 & 4

submits that accused nos.3 & 4 were not at all present at the

spot at the time of the incident and from the evidence of

DWs-2 & 3, it is clear that at the relevant point of time, they

had gone to attend the death ceremony function of their

relative. He submits that though PW-9 is also alleged to have

suffered injuries in the incident, there is no evidence

regarding the same on record.

8. Per contra, learned HCGP has submitted that from the

evidence of PWs-1, 2, 4 & 9, the incident as well as the

nature in which the assault was made by the accused has

been proved by the prosecution beyond reasonable doubt. He

submits that the evidence of the aforesaid witnesses is

corroborated by medical evidence of doctors PWs-7 & 10 and

medical documents - Exs.P-11, 18 & 19.

9. Learned Counsel appearing on behalf of the defacto

complainant submits that non-production of x-ray

report/sheets has no consequence, when the other medical

records would establish that PW-1 had suffered grievous

injuries in the incident. In support of this contention of his, he

has placed reliance on the judgment of the Division Bench of

this Court in the case of STATE OF KARNATAKA VS MANJU

RANGAPPA KANNAPPANNAVAR passed in Crl.A.

No.2398/2005 c/w Crl.A.No.1822/2005 disposed of on

31.03.2011. He submits that the sentence imposed by the

Trial Court requires enhancement and the Appellate Court has

erred in dismissing the appeal filed by the defacto

complainant.

10. Learned Senior Counsel appearing for the petitioners in

Crl.R.P.No.626/2016, in reply has submitted that the appeal

filed by the defacto complainant before the Appellate Court

under Section 372 Cr.PC was not maintainable and in this

regard, he has placed reliance on the judgment of the Hon'ble

Supreme Court in the case of PARVINDER KANSAL VS STATE

(NCT OF DELHI) & ANOTHER - (2020)19 SCC 496.

11. I have given my anxious consideration to the

arguments addressed on both sides and also perused the

material available on record.

12. The points that arise for consideration in these revision

petitions are,

"1. whether the courts below were justified in convicting the accused for the offences for which they were charged?

2. Whether the sentence imposed by the courts below on the accused for the offence for which they where charged requires to be enhanced at the instance of the defacto complainant?"

13. Point no.1:- The prosecution to prove the alleged

incident and the injuries suffered by PWs-1 & 4 has mainly

placed reliance on the evidence of PWs-1, 2, 4, 7, 9 & 10.

14. PW-1 - Narayana, the complainant, during the course of

his evidence has stated that in C.C.No.17/1996 which was

instituted on the basis of the complaint made by him, accused

no.1 was convicted and sentenced by the jurisdictional Court

of Magistrate on 19.04.2001 and in this background, accused

no.1 along with the other accused had assaulted him on

22.04.2001. He has stated about the role played by each of

the accused in the assault made on him and also has spoken

about the injuries suffered by him and the treatment taken by

him for the said injuries. He has produced the photographs at

Exs.P-2 to P-7 and also the discharge summary - Ex.P-11 to

prove the injuries and the treatment undergone by him.

15. PW-2 - Jayaramaiah who was along with PW-1 at the

time of assault has stated that when he tried to interfere

while the accused persons were assaulting PW-1, they

threatened him with dire consequences. His evidence

regarding the assault corroborates the evidence of PW-1.

16. PW-4 who is the wife of PW-1's brother also has

supported the case of the prosecution and she has deposed

that when she tried to interfere while the accused persons

were assaulting PW-1, she also had suffered injuries and had

taken treatment for the same in Government Hospital,

Magadi. Her wound certificate is produced at Ex.P-16 and

PW-7 - doctor working in Government Hospital, Magadi, has

spoken about the treatment given to PW-4 for the injuries

suffered by her and also has identified the wound certificate

issued by him and has stated that PW-4 had suffered simple

injuries. As per Ex.P-16, PW-4 has suffered the following

injuries:

1. A cut lacerated wound on scalp 4 x 6 cm with simple lead swelling and tenderness.

2. A cut lacerated wound on left knee 4 x 6 cm with simple lead swelling and tenderness.

17. PW-7, however, does not speak anything about the

treatment given to PW-1 in Magadi Government Hospital and

he also does not state anything about the admission of PW-1

in the Government Hospital at Magadi on 22.04.2001.

However, he has stated that PW-1 had come to the hospital,

and thereafter, his statement was recorded in the hospital by

the jurisdictional police as per Ex.P-1. Ex.P-1 - complaint was

recorded between 8.00 p.m. to 8.30 p.m., while the alleged

incident had taken place at 5.30 p.m. Therefore, immediately

after the incident, PW-1 had gone to the hospital, and

thereafter, his statement was recorded by the police in the

hospital and based on the same, FIR was registered against

all the 12 accused persons for the offences punishable under

Sections 143, 147, 148, 114, 324, 427, 506 read with 149

IPC.

18. It is relevant to note here that the statement of PW-1

was recorded in the hospital by the police in the presence of

PW-7 - doctor and the FIR has been registered only for the

offence punishable under Section 324 IPC along with other

allied offences, but no case was registered for the offence

punishable under Section 326 IPC.

19. PW-1 has stated that he was referred to K.C.General

Hospital, Bengaluru, for higher treatment by the Government

Hospital, Magadi. However, PW-7 has not supported this

version of PW-1. There is no material on record to show that

PW-1 was referred to K.C.General Hospital, Bengaluru, by the

Government Hospital, Magadi, for higher treatment. The

prosecution has placed reliance on Ex.P-19 - MLC register

maintained by K.C.General Hospital, Bengaluru, to prove its

case that PW-1 was referred to by Government Hospital,

Magadi, for higher treatment. But, in the absence of any

document relating to Government Hospital, Magadi, to show

that the said hospital had referred PW-1 for higher treatment

and when PW-7 has not stated anything about referring PW-1

for higher treatment or about treatment given to him in

Government Hospital, Magadi, before referring him for higher

treatment, on the basis of an endorsement made in Ex.P-19

that PW-1 was referred to K.C.General Hospital by the

Government Hospital at Magadi, it cannot be held that the

prosecution has proved that PW-1 was referred for higher

treatment by Government Hospital at Magadi.

20. A perusal of Ex.P-19 would go to show that PW-1 was

brought to K.C.General Hospital, Bengaluru, by his brother -

PW-6 - Ramakrishnaiah. However, during the course of his

deposition, PW-6 has not stated anything about he bringing

PW-1 from Magadi to Bengaluru for the purpose of higher

treatment. He only speaks about producing the clothes which

PW-1 was wearing at the time of assault before the police

which was seized under seizure mahazar - Ex.P-17.

21. Ex.P-18 is the wound certificate of PW-1 issued by

K.C.General Hospital, Bengaluru, and as per the said

document, PW-1 had suffered the following injuries:

1. Tender swelling left knee joint.

2. Swelling distal end of left forearm.

3. Swelling of little finger.

22. PW-10 is the doctor who is said to have issued Ex.P-18.

She has stated that the injuries mentioned in Ex.P-18 were all

grievous in nature. She has stated that the said opinion of

hers is based on the x-rays of PW-1. Admittedly, the x-ray

report or the x-ray sheets of PW-1 were not produced by the

prosecution before the court. The injuries found on the body

of PW-1 were either swelling or tenderness and there were no

incise wound or blood oozing wound found on the body of

PW-1. In the absence of any incise wound or blood oozing

wound found on the body of PW-1 and also in the absence of

any injury on the vital parts of the body of PW-1, when the

injuries found were either tenderness or swelling, it becomes

highly doubtful that PW-1 was referred to higher treatment by

the Government Hospital at Magadi, more so, when the

doctor - PW-7 does not even speak about giving first aid

treatment to PW-1 in Magadi Government Hospital before

PW-1 was brought to Bengaluru for higher treatment.

Learned Senior Counsel appearing on behalf of the accused

has strongly contended that in the absence of x-ray

report/sheets, on the basis of which PW-10 has stated that

the injuries found on PW-1 were grievous in nature, it cannot

be said that the prosecution has proved that PW-1 had

suffered grievous injuries.

23. It is relevant to note that the orthopedician who is said

to have treated PW-1 for the alleged fracture injuries suffered

by him has not been examined by the prosecution, so also

the Radiologist who is said to have taken the x-ray of PW-1

was also not examined by the prosecution. The Division

Bench of this Court in Seenappa Gowda's case supra, in

almost identical circumstances, at para 18, has observed as

under:

"18. 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 cannot be said that the accused have caused grievous inujury 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, the 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 phalax, 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."

24. Though the learned Counsel appearing on behalf of the

defacto complainant has placed reliance on the judgment in

Manju Rangappa Kannappannavar's case supra, and

submitted that since the wound certificate refers to x-ray

numbers, mere non-production of x-ray report/sheets cannot

have any adverse effect on the case of the prosecution, in my

considered view, the said judgment cannot be made

applicable to the facts of the present case having regard to

the fact that in the said case, though x-ray film/case sheets

were not produced, x-ray report was produced, wherein there

was reference to the x-ray number which showed that there

were fracture injuries. Further, in the said case, the doctor

who had treated the victims for the fracture injuries was also

examined.

25. The High Court of Kerala in the case of P.JOHNSON &

OTHERS VS STATE OF KERALA - 1998 SCC OnLine Ker 477, in

identical circumstances where the doctor had issued wound

certificate on the basis of the x-ray report in a case where the

x-ray report was not produced by the prosecution, has

observed in paragraph 6 as under:

"6. Even regarding the conviction brought under Section 326 there is no legal evidence to fix the criminal liability. Section 320, I.P.C. defines grievous hurt. Fracture comes under this Section. PW-7 doctor who examined PW-12 in the medical college hospital, Calicut issued Ext.P-6 discharge certificate which goes to show that PW-12 sustained grievous hurt. PW-7 in this context would depose that he gave Ext.P-6 certificate on the basis of X-ray report and that report was not produced and the doctor who took X-ray was not examined. Non-production of the X-ray report and non-examination of the doctor who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326, I.P.C. is not established. This flaw is also a stronger one shaking the case of the prosecution."

26. In the present case, undisputedly, accused no.1 was

convicted in a criminal case which was registered on the

complaint of PW-1. The material on record would go to show

that there is a long standing dispute between the parties. The

Hon'ble Supreme Court in Masji Tato Rawool's case supra,

under such circumstances, has observed in paragraph 6 as

under:

"6. ......... Such inimical relationship on the one hand provides motive for the offence and on the other it serves as an inducement to the members of one party to falsely implicate their enemies. Even when only some members of the rival group are involved in the offence quite often one finds a tendency also to falsely rope in some other members, or their relations who may be wholly innocent. In doing so the story is improved and modified to achieve this purpose. Exaggeration of the part played by the other side in the course of the incident is also quite common. The Court has, therefore, to be circumspect in the appreciation of evidence so that over-emphasis on the enmity factor does not cause either the innocent to be wrongly convicted or the guilty to be wrongly accused acquitted, for in either case justice would fail. Medical evidence in respect of the injuries suffered in such cases is helpful in appreciating the evidence of the witnesses to the occurrence."

27. Learned Senior Counsel appearing for the accused has

pointed out to the discrepancies in the medical evidence and

the deposition of the injured witnesses and has submitted

that attempt is made to falsely implicate the accused in

criminal cases and in support of this contention, he has

placed reliance on the judgments in Jaggo @ Jagdish's case

and Rajendra Singh's case supra. However, having regard to

the evidence of PWs-1 & 2 which is corroborated with the

evidence of PWs-7 & 10, and also the medical evidence, I am

of the considered view that the said judgments cannot be

made applicable to the facts of the present case.

28. Under the circumstances, I am of the considered view

that the prosecution has failed to prove that PW-1 had

suffered grievous injuries as a result of the assault made by

the accused on him in the incident that had taken place on

22.04.2001.

29. The material on record would go to show that the

prosecution has proved the incident that had taken place on

22.04.2001 and the injuries suffered by PW-4 which are

simple in nature is also proved by the prosecution through

the evidence of PWs-4, 7 & Ex.P-16. The complaint at Ex.P-1

had come into existence within three hours from the time of

incident and the material on record would go to show that the

statement of PW-1 which resulted in registering FIR against

the accused persons was recorded in the Government

Hospital by the police in the presence of PW-7 who had

endorsed the complaint. The case was registered against the

accused persons on the basis of the said complaint for the

offence under 324 IPC and other allied offences. Ex.P-18

refers to the following injuries which were found on the body

of PW-1.

1. Tender swelling left knee joint.

2. Swelling distal end of left forearum.

3. Swelling of little finger.

30. Therefore, it is evident that PW-1 had suffered some

injuries in the incident in question which are simple in nature.

Section 319 of IPC defines simple 'hurt' and Section 321

makes voluntary causing of hurt an offence punishable under

Section 323 of IPC and if hurt is caused by dangerous

weapons or means, then offence is punishable under Section

324 of IPC. Section 319 of IPC reads as under:

"319. Hurt.- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."

31. From the reading of the definition of the word 'hurt' and

also considering the injuries that were found on the body of

PW-1, it can be safely held that the injuries suffered by him

were simple in nature. The duration of severity of pain is

immaterial to decide whether Section 319 of IPC will apply or

not.

32. In so far as the other offences for which the accused

persons were convicted and sentenced by the courts below

are concerned, there is ample material produced by the

prosecution to prove the same. The evidence of PWs-1, 2, 4,

5 & 9 if read with other documentary evidence conclusively

prove that the courts below were fully justified in convicting

the accused for the offences under Sections 143, 147, 148,

427 & 506 IPC. However, for the reasons assigned herein

above, in my considered view, the courts below were not

justified in convicting the accused for the offence under

Section 326 IPC. The material on record would only go to

show that PWs-1 & 4 had suffered only simple injuries, and

therefore, the courts below ought to have convicted the

accused persons for the offence under Section 324 IPC and

not for the offence under Section 326 IPC. Therefore,

question no.1 for consideration is answered partly in the

affirmative.

33. Point no.2:- The accused have taken a preliminary

objection with regard to the maintainability of

Crl.R.P.No.836/2016 on the ground that the appeal filed

defacto complainant in Crl.A.No.7/2011 under Section 372 of

Cr.PC before the Appellate Court seeking enhancement of

sentence imposed by the Trial Court itself was not

maintainable, and therefore, in the revision petition filed

challenging the order passed by the Appellate Court in

Crl.A.No.7/2011, the defacto complainant cannot seek for

enhancement of the sentence imposed on the accused.

34. The material on record would go to show that the State

had filed a separate appeal under Section 377 Cr.PC in

Crl.A.No.28/2011 before the Appellate Court seeking

enhancement of sentence imposed on the accused by the

Trial Court for the offences for which they were convicted.

Having regard to the same, the Appellate Court, on

30.11.2011 had passed an order that since the State had

already filed an appeal under Section 377 Cr.PC seeking

enhancement of sentence imposed on the accused by the

Trial Court for the offences for which they were convicted, the

appeal filed by the defacto complainant under Section 372

Cr.PC would not be maintainable. The said order was

questioned by the defacto complainant before this Court in

Crl.P.No.1283/2011. This Court on 24.06.2013 disposed of

the said petition and held that the Appellate Court was

justified in holding that the appeal filed by the defacto

complainant under Section 372 of Cr.PC seeking

enhancement was not maintainable since the State had

already filed an appeal under Section 377 Cr.PC. However,

this Court had observed that the defacto complainant can

assist the prosecution and for the said purpose,

Crl.A.No.7/2011 filed by the defacto complainant before the

Appellate Court shall remain on board and shall go along with

the appeal by the State and the defacto complainant shall

assist the Public Prosecutor in prosecuting the appeal.

Therefore, the coordinate bench of this Court in

Crl.P.No.1283/2011 has already held that the appeal filed by

the defacto complainant seeking enhancement of sentence

was not maintainable.

35. In addition to the same, learned Counsel for the

accused persons have argued before this Court that the

defacto complainant/victim cannot maintain an appeal under

Section 372 Cr.PC seeking enhancement of sentence imposed

on the accused. A plain reading of Section 372 Cr.PC and the

proviso to the same would make it clear that the said

provision of law does not provide for any appeal by the

defacto complainant/victim seeking enhancement of sentence

imposed on the accused. The law in this regard has been laid

down by the Hon'ble Supreme Court in Parvinder Kansal's

case, wherein it has been held that the appeal seeking

enhancement of sentence at the instance of the victim under

Section 372 Cr.PC is not maintainable. Under the

circumstances, the appeal in Crl.A.No.7/2011 filed by the

defacto complainant/victim before the Appellate Court

seeking enhancement of sentence was not maintainable

before the Appellate Court and in the revision petition filed by

the defacto complainant/victim challenging the order of

dismissal passed by the Appellate Court in Crl.A.No.7/2011,

the sentence imposed on the accused by the Trial Court

cannot be enhanced. Accordingly, point no.2 is answered in

the negative.

36. The material on record would go to show that the

incident is of the year 2001 and 22 years have lapsed from

the date of incident. The wound certificates at Exs.P-16 &

P-18 discloses that the injuries suffered by PW-1 & PW-4,

respectively, are simple in nature. Therefore, taking into

consideration the antecedents of the accused, age of the

incident, the nature of incident and the injuries suffered by

PWs-1 & 4 in the said incident and also considering the fact

that the accused have faced the ordeal of criminal

prosecution for the last 22 years, I am of the considered view

that it may not be necessary to sentence the accused with

imprisonment and if the sentence imposed on the accused for

the offences under Sections 143, 147, 148, 427 & 506 IPC is

modified and reduced to payment of fine, the same would

serve the ends of justice. Accordingly, the following:

ORDER

1. Crl.R.P.Nos.626/2016, 665/2016 & 667/2016 are allowed in part.

2. The judgment and order of conviction passed by the courts below in so far as the offences punishable under Sections 143, 147, 148, 427 & 506 IPC is upheld, however, the order of sentence for the said offences is modified and reduced to payment of fine imposed by the Trial Court and the default sentence ordered by the Trial Court remains unaltered.

3. The judgment and order of conviction passed against the accused by the Trial Court and confirmed by the Appellate Court for the offence under Section 326 IPC is set aside and instead, accused nos.1 to 5 & 7 to 12 are convicted for the offence punishable under Section 324 IPC and the said accused are sentenced to pay fine of Rs.10,000/- each and in default to undergo simple imprisonment for a period of six months. Out of the fine amount, a sum of Rs.75,000/- shall be paid to PW-1 and a sum of Rs.25,000/- shall be paid to PW-4 towards compensation, and the balance shall be remitted to the State.

4. Crl.R.P.No.836/2016 is dismissed.

Sd/-

JUDGE

KK