Karnataka High Court
Sri Yellappa vs State Of Karnataka on 19 December, 2023
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CRL.RP No. 887 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL REVISION PETITION NO.887 OF 2016
BETWEEN:
1. SRI YELLAPPA
S/O SUNKAPPA
AGED ABOUT 48 YEARS
OCCUPATION: COOLIE
RESIDING AT HALLAHALLI VILLAGE
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT-577 201.
2. THIPPESWAMY
S/O LATE SUNKAPPA
AGED ABOUT 43 YEARS
OCCUPATION: COOLIE WORK
RESIDING AT CHIKKAGONDANA HALLI VILLAGE
TURUVANUR HOBLI
CHITRADURGA TALUK-577 501.
3. MAHESHA
S/O BUDDAPPA
AGED ABOUT 28 YEARS
Digitally OCCUPATION: COOLIE WORK
signed by RESIDING AT CHIKKAGONDANA HALLI VILLAGE
VINUTHA M
TURUVANUR HOBLI
Location:
HIGH CHITRADURGA TALUK-577 501.
COURT OF ...PETITIONERS
KARNATAKA
(BY SRI SRINIVAS N., ADVOCATE)
AND:
STATE OF KARNATAKA
BY TURUVANUR POLICE
CHITRADURGA TALUK.
REPRESENTED BY HIGH COURT OF KARNATAKA.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
***
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CRL.RP No. 887 of 2016
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF THE CR.P.C. PRAYING TO
SET ASIDE THE ORDER DATED 11.4.2016 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, IN
CRL.A. NO.71/2014 AND SET ASIDE THE ORDER DATED 13.03.2014
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.,
CHITRADURGA, IN C.C. NO.930/2012 AND ACQUIT THE
PETITIONERS FROM ALL CHARGES.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 31-10-2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
The petitioners/accused Nos.1 to 3 have preferred
this revision petition challenging the judgment of
conviction dated 13-3-2014 and order on sentence dated
14-3-2014 passed by the I Additional Senior Civil Judge
and Judicial Magistrate First Class, Chitradurga, in Criminal
Case No.930 of 2012 and confirmed by the I Additional
District and Sessions Judge, Chitradurga, dated 11-4-2016
in Criminal Appeal No.71 of 2014.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
petitioners are accused Nos.1 to 3 and the respondent is
the complainant-State.
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3. Accused Nos.1 to 3 faced trial for the offences
punishable under Sections 323, 326 and 504 read with
Section 34 of the Indian Penal Code, 1860 (for short,
'IPC'). The trial Court convicted accused Nos.1 to 3 and
hence, they preferred Criminal Appeal No.71 of 2014,
wherein the First Appellate Court confirmed the judgment
of the trial Court.
4. The brief facts of the prosecution case are that on
15-6-2012 at about 8.30 p.m. at Chikkagondanahalli
Village, in front of the house of PW.1, all the accused
persons picked up quarrel with her on the background of
earlier case, abused her in filthy language and
intentionally insulted her to provoke her breach of peace,
at that time, PW.4 intervened to pacify the quarrel, hence,
all the accused persons abused PW.4 in filthy language,
accused No.1 assaulted PW.4 with MO.1-club on his left
hand and right leg, accused Nos.2 and 3 assaulted PW.4
with their hands and kicked with their legs. PWs.2 and 3
pacified the quarrel and PW.4 was taken to Government
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Hospital, Chitradurga, for treatment, where he lodged a
complaint as per Ex.P.2. This led to registration of First
Information Report and investigation.
5. The prosecution in all examined nine witnesses as
PW.1 to PW.9, got marked six documents as per Exs.P.1 to
P.6 and got marked two material objects as per MOs.1
and 2. Assessing the entire evidence, the trial Court
arrived at a conclusion that, accused Nos.1 to 3 committed
the offences charged and thus, convicted them for the
offences punishable under Sections 323, 326 and 504 read
with Section 34 of the IPC.
6. Accused Nos.1 to 3 challenged the impugned
judgment of conviction and order on sentence passed by
the trial Court before the I Additional District and Sessions
Judge, Chitradurga, in Criminal Appeal No.71 of 2014. The
learned Sessions Judge, on re-appreciation of the
evidence, confirmed the judgment of conviction and order
on sentence passed by the trial Court.
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7. Assailing the findings of the trial Court and the
First Appellate Court, Sri N. Srinivas, learned counsel for
the petitioners, submitted that PW.1 and PW.4, injured
eyewitnesses, who happen to be the close relatives have
not spoken in line with Ex.P.2-complaint and statements
given before the Police under Section 161 of the Cr.P.C.;
there was rivalry existed between PWs.1 & 4 and the
accused persons in the background of rape case. The
evidence on record does not attribute the specific overt
acts of each of the accused; clubs-MOs.1 and 2 alleged to
have been used by the accused persons are not dangerous
weapon which would attract Section 326 of the IPC.
Though PW.1 claims to be an injured in the incident, she
has not chosen to get herself treated and thus, offence
under Section 323 of the IPC is not made out. Further,
none of the witnesses have stated about intentional insult
so as to attract Section 504 of the IPC. It is contended
that Ex.P.5-Wound Certificate shows that PW.4 sustained a
fracture on his left hand, but the evidence of PW.4 goes to
show that the accused assaulted him on hands and legs
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causing injuries. Thus, there is no corroboration as to oral
evidence and medical evidence. On all these grounds, he
prayed to allow the revision petition.
8. Per contra, Sri Vinay Mahadevaiah, learned High
Court Government Pleader, submits that both the Courts
below on appreciation and re-appreciation of the evidence
have concurrently held that, accused Nos.1 to 3 have
intentionally insulted PW.1 and PW.4, assaulted them with
clubs and voluntarily caused hurt by their hands and legs
and as such, in the revisional jurisdiction, there cannot be
any interference in such findings. He further submits that
the evidence on record clearly shows that accused Nos.1
to 3 have intentionally assaulted PW.1 and PW.4, and
abused them in filthy language and hence, there is no
ground to interfere with such findings.
9. As rightly pointed out by the learned High Court
Government Pleader that this being a revision petition
against the concurrent findings of the trial Court and the
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First Appellate Court, the scope of interference on the
factual aspects is very limited.
10. As per the charge framed by the trial Court, on
15-6-2012 at 8.30 p.m., accused Nos.1 to 3 intentionally
picked up quarrel with PWs.1 and 4, abused them in filthy
language and assaulted them. Accused No.1 assaulted
PW.4 with MO.1-club on his left hand and right leg,
accused Nos.2 and 3 assaulted PW.4 with their hands and
kicked with their legs.
11. In order to prove this aspect, the prosecution
examined:
a. PW.1 - Gangamma, sister of the complainant.
She has stated that about nine months ago, one day at
about 9.00 p.m., the accused persons came near her
house and enquired about one Venkata, who is involved in
rape case, at that time, they picked up quarrel, abused
her in filthy language and assaulted her with club and
hands. When her brother, PW.4-Sunkappa, tried to pacify
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the quarrel, accused No.1 assaulted him with club on his
left hand and as such, he sustained fracture, and accused
Nos.2 and 3 also assaulted PW.4 with their hands and
legs. PWs.2 and 3 pacified the quarrel. She further stated
that, though she sustained injuries, she did not take
treatment in the hospital. In the cross-examination, she
admits that soon after the incident, she did not lodge the
complaint and she did not take treatment in the hospital.
b. PW.2 - Marappa, an eyewitness to the incident,
has stated that, while he and his wife-PW.3 were sitting
near their house, all the accused persons came near the
house of PW.1 and started abusing her in filthy language,
assaulted her with the club and with their hands. At that
time, PW.4 came to pacify the quarrel, accused No.1
assaulted him with a club on his left hand and thereby,
caused fracture to his left hand and other accused persons
have also assaulted PW.4 with their hands and legs. Thus,
his wife-PW.3 and himself pacified the quarrel.
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c. PW.3 - Sunkamma, wife of PW.2 and an
eyewitness to the incident, reiterates the evidence of PW.2
and corroborates his oral testimony.
d. PW.4 - Sunkappa, complainant and injured, has
stated that, on the date of incident, at about 7.30 p.m.,
the accused persons came to the house of PW.1 and
abusing her in filthy language, and assaulting her with the
club and hands. Hence, he intervened to pacify the
quarrel, at that time, accused No.1 assaulted him with
club on his left hand, he sustained fracture and accused
Nos.2 and 3 also assaulted him with their hands and legs.
Therefore, PWs.2 and 3 pacified the quarrel and later, he
took treatment at District Hospital, Chitradurga, and
lodged the complaint as per Ex.P.2.
e. PW.5 - G. Sunkappa, a witness to spot mahazar
(Ex.P.1), turned hostile to the case of the prosecution.
f. PW.6 - R. Thippeswamy, Assistant Sub-Inspector
of Police, received the complaint, registered the case, sent
F.I.R. to the trial Court, visited the scene of offence, drew
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panchanama as per Ex.P.1 and recorded the statements of
PW.1 to PW.3.
g. PW.7 - R. Shankarmurthy, Sub-Inspector of Police,
who conducted investigation and filed the charge-sheet
against the accused persons.
h. PW.8 - Dr. Krishnamurthy, Medical Officer, who
examined and treated PW.4 - Sunkappa and issued Wound
Certificate as per Ex.P.5.
j. PW.9 - Dr. Sathyanarayana, who took X-ray of left
hand of PW.4. As per X-ray report, PW.4 suffered fracture
on his left hand as per Ex.P.6.
12. On perusal of the evidence on record, accused
Nos.1 to 3 have not disputed the occurrence of the
incident. PWs.1 and 4 are injured and PWs.2 and 3, who
pacified the quarrel, have stated about the incident and in
their cross-examination, they have admitted that they are
close relatives. Testimony of an injured witness is
accorded a special status in law. Such a witness comes
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with a built in guarantee of his presence at the time of
crime and is unlikely to spare his actual assailant in order
to falsely implicate someone. Convincing evidence is
required to discredit an injured witness. The close relatives
of the injured are unlikely to falsely implicate anyone.
Sometimes such relationship is guarantee of truth. Where
feelings turn high on enmity, prudence may compel the
Court to seek corroboration. Mere relationship does not
make anyone interested and does not discredit the
evidence of an eyewitness. Evidence of an interested
witness can be acted upon if it is found reliable after
careful scrutiny. Relationship is not sufficient to discredit
a witness unless motive to spare the real culprit and
falsely implicate an innocent person is shown and the
defence case of false implication has to be considered
carefully.
13. In view of the aforesaid background, on perusal
of evidence of PW.1, it appears that all the accused
persons came near the house of PW.1 in search of one
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Venkata, who was the accused in rape case, took quarrel,
assaulted her with clubs, hands and abused her in filthy
language, but PW.1 is not specific as to where the accused
persons assaulted her and the specific words uttered by
them. However, she has stated that accused No.1
assaulted PW.4 on his left hand and accused Nos.2 and 3
assaulted PW.4 with their hands and legs, at that time,
PWs.2 and 3 pacified the quarrel. PW.2 has stated that the
accused persons abused PW.1 in filthy language and when
PW.4 tried to pacify the quarrel, accused No.1 assaulted
him with club on his left hand and accused Nos.2 and 3
assaulted PW.4 with their hands and legs, hence, he and
his wife-PW.3, pacified the quarrel. As per the evidence of
PW.3, the accused persons abused PW.1 in filthy language
and assaulted her with club and hands and when PW.4
tried to pacify the quarrel, accused No.1 assaulted him
with club on his left hand and hence, his left hand was
fractured. Therefore, she and her husband-PW.2 pacified
the quarrel. As per the evidence of PW.4, the accused
persons were abusing PW.1 in respect of rape case
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registered against one Venkata and he was hiding in the
house of PW.1. Hence, he tried to pacify the quarrel, at
that time, all the accused persons assaulted him with
clubs, hands and legs. Therefore, he sustained fracture of
his left hand. PWs.2 and 3 pacified the quarrel. PW.1 to
PW.4 have specially stated about the assault made by
accused No.1 with club on the left hand of PW.4. But
there is no specific evidence that accused Nos.2 and 3
assaulted PW.1 and PW.4 with their hands and legs.
PWs.1 to 4 have stated that accused Nos.1 to 3 assaulted
PW.1 with club, hands and legs, but she never took any
treatment in the hospital and the Investigating Officer has
not produced any Wound Certificate of PW.1 before the
trial Court. The Doctor has deposed that, PW.4 alone took
treatment and PW.1 never visited the hospital. Therefore,
the oral evidence of PW.1 to PW.4 with regard to injuries
sustained by PW1 is not corroborated with medical
evidence.
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14. So far as, injuries sustained by PW.4 are
concerned, PWs.1 to PW.4 have consistently stated about
the manner of assault made by accused No.1 on left hand
of PW.4. On perusal of the evidence of
PW.8-Dr. Krishnamurthy, he has given description of
injuries on physical examination of PW.4 and has come to
the conclusion that PW.4 had sustained fracture on his left
hand. Therefore, it is clear that the findings of the trial
Court as well as the First Appellate Court holding that the
prosecution has proved that accused No.1 committed the
offence punishable under Section 326 of the IPC.
15. So far as the offence under Section 504 of the
IPC against accused Nos.2 and 3 are concerned, the
prosecution witnesses have stated that the accused
persons abused PW.1 in filthy language, but they have not
uttered specific words, so as to attract Section 504 of the
IPC. In fact, they have made general allegations. In fact,
the prosecution has to show that the accused persons
have intentionally insulted PW.1, so as to give her
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provocation, intending or knowing that such provocation
will break her public peace or to commit any other offence.
Thus, mere act of insulting a person could not satisfy the
ingredients of Section 504 of the IPC.
16. The Hon'ble Apex Court in the case of FIONA
SHRIKHANDE v. STATE OF MAHARASHTRA AND
ANOTHER reported in AIR (2014) SC 2013 at
Paragraph Nos.13 and 14 has held as under:
"13. Section 504 IPC comprises of the following
ingredients, viz., (a) intentional insult, (b) the
insult must be such as to give provocation to the
person insulted, and (c) the accused must intend or
know that such provocation would cause another to
break the public peace or to commit any other
offence. The intentional insult must be of such a
degree that should provoke a person to break the
public peace or to commit any other offence. The
person who intentionally insults intending or
knowing it to be likely that it will give provocation
to any other person and such provocation will
cause to break the public peace or to commit any
other offence, in such a situation, the ingredients
of Section 504 are satisfied. One of the essential
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elements constituting the offence is that there
should have been an act or conduct amounting to
intentional insult and the mere fact that the
accused abused the complainant, as such, is not
sufficient by itself to warrant a conviction
under Section 504 IPC.
14. We may also indicate that it is not the law
that the actual words or language should figure in
the complaint. One has to read the complaint as a
whole and, by doing so, if the Magistrate comes to
a conclusion, prima facie, that there has been an
intentional insult so as to provoke any person to
break the public peace or to commit any other
offence, that is sufficient to bring the complaint
within the ambit of Section 504 IPC. It is not the
law that a complainant should verbatim reproduce
each word or words capable of provoking the other
person to commit any other offence. The
background facts, circumstances, the occasion, the
manner in which they are used, the person or
persons to whom they are addressed, the time, the
conduct of the person who has indulged in such
actions are all relevant factors to be borne in mind
while examining a complaint lodged for initiating
proceedings under Section 504 IPC."
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17. So far as the offence under Section 323 of the
IPC is concerned, PW.1 has stated that accused Nos.1 to 3
assaulted her with their hands, but she has not taken any
treatment in any hospital. No document is placed on
record to corroborate her testimony. Further, PW.2 and
PW.3 being eyewitnesses to the incident also not
specifically stated about individual overt act of each
accused, who assaulted PW.1 with hand. This is general
allegations made against accused Nos.2 and 3.
18. On perusal of the evidence of the prosecution
witnesses, there is ample evidence against accused No.1
to attract Section 326 of the IPC. However, there is no
clear, corroborative and consisting evidence of PW.1 to
PW.4 with regard to Sections 504 and 323 of the IPC
against accused Nos.1 to 3. Hence, to that effect, the
judgment of conviction and order on sentence passed by
the trial Court as well as the First Appellate Court requires
to be modified. Accordingly, I pass the following:
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ORDER
i. Criminal revision petition is partly allowed.
ii. The judgment of conviction dated 13-3-2014 and
order on sentence dated 14-3-2014 passed by the I
Additional Senior Civil Judge and Judicial Magistrate
First Class, Chitradurga, in Criminal Case No.930 of
2012 and confirmed by the I Additional District and
Sessions Judge, Chitradurga, in Criminal Appeal
No.71 of 2014 on 11-4-2016 is modified.
iii. The sentence of imprisonment and fine imposed
against accused No.1 in respect of Section 326 of the
IPC is hereby confirmed and he is acquitted of the
offences punishable under Sections 323 and 504 of
the IPC.
iv. Accused Nos.2 and 3 are acquitted of the offences
punishable under Sections 323 and 504 of the IPC.
They are set at liberty. Their bail bonds, if any, shall
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stand cancelled, and the fine amount, if any,
deposited shall be returned to them, forthwith.
The Registry is directed to return the trial Court
record with a copy of this order, forthwith.
Sd/-
JUDGE
KVK
