Malappa S/O Malakappa Madar And ... vs The State Of Karnataka
2023 Latest Caselaw 195 Kant

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           IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 04TH DAY OF JANUARY, 2023

                      BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL APPEAL No.200137/2016


BETWEEN:

1.   MALAPPA S/O MALAKAPPA MADAR
     AGE: 20 YEARS, OCC: STUDENT,

2.   MALAKAPPA S/O SIDDAPPA MADAR
     AGE: 41 YEARS, OCC: COOLIE,

3.   NINGAPPA S/O SIDDAPPA MADAR
     AGE: 45 YEARS, OCC: COOLIE,

4.   SMT.NEELAMMA
     W/O MALAKAPPA MADAR
     AGE: 37 YEARS, OCC: COOLIE,

5.   SMT.SURAMMA
     D/O MALAKAPPA MADAR,
     AGE: 22 YEARS, OCC: STUDENT,

     ALL THE APPELLANTS ARE
     R/O HACHYAL VILLAGE,
     TQ. SINDAGI, DIST. VIJAYAPUR.

                                      ... APPELLANTS
(BY SRI R.S.LAGALI, ADVOCATE)
                               2




AND:

THE STATE OF KARNATAKA
REPRESENTED BY THE
PSI., SINDAGI PS.
REPRESENTED BY THE
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
                                            ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR, HCGP)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO ALLOW THIS APPEAL
THEREBY SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 29.08.2016 PASSED IN SESSIONS
CASE NO.59/2015 BY THE PRINCIPAL SESSIONS JUDGE,
VIJAYAPUR AND ACQUIT THE APPELLANT.


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

                        JUDGMENT

The present appeal is filed by the appellants against

the judgment of conviction passed in S.C.No.59/2015

dated 29.08.2016 by the Principal Sessions Judge at

Vijayapura.

2. Brief Facts of the case are as under:

Prosecution alleged that on 19.10.2014 at about 7.30 pm.,

near the house of Renukavva Madar in Madar Oni of

Hachyal village, accused Nos.1 to 5 being enraged with the

act of CW.4, Shankreppa in pacifying the quarrel between

his son CW.8, Ambarish and the son of accused No.2,

formed themselves into an unlawful assembly with an

intention to take away life of Shankreppa, at that juncture,

accused No.1 armed with deadly weapons like club and all

the accused persons committed rioting and accused Nos.2

and 3 in prosecution of their common object, caught hold

the shirt of Shankreppa-CW.4 and wrongfully restrained

his free movement and accused No.1, assaulted with a

club on his head so as to take away his life. Accused No.1

gave blows on other parts of the body and when

Shankreppa cried for help, Smt. Shantabai, wife of

Shankreppa had rushed to the spot and tried to rescue

him. At that juncture, accused persons kicked on her

stomach and caused hurt. They also abused Shankreppa

and Shantabai in filthy language and provoked them to

break the public peace. Therefore, a complaint came to be

lodged by Shantabai in respect of the incident to the

Sindagi police.

3. Based on the complaint lodged by Shantabai,

police registered a case and after detailed investigation,

filed the chargesheet against the accused for the offences

punishable under sections 143, 147, 148, 341, 307, 323,

504 read with section 149 of IPC. Presence of accused

persons was secured before the Sessions Judge and

charges were framed.

4. Since accused persons did not plead guilty,

trial was held.

5. In order to bring home the guilt of the

accused, prosecution in all examined 12 witnesses as

PWs.1 to 12 and relied upon 10 documents which are

marked and exhibited as Exs.P1 to P10 and a club has

been marked as M.O.1 on behalf of the prosecution.

6. On conclusion of the recording of the

prosecution evidence, accused statement as contemplated

under section 313 of Cr.P.C., was recorded by the learned

trial judge.

7. Accused persons denied all the incriminating

circumstances that were put to them and did not offer any

explanation whatsoever in respect of the incident by

furnishing any written statement as is contemplated under

Section 313(5) of Cr.P.C.

8. Thereafter, the learned Sessions Judge heard

the parties in detail and after considering the material on

record, passed an order of conviction and sentenced the

accused as under:

"Acting u/s. 235 (1) of Cr.P.C, the A-l to A-5 are acquitted for the offences punishable u/s. 143, 147, 148, 307, 504 r/w sec. 149 I.P.C.

Acting u/s. 235 (2) Cr.P.C, the A-l is convicted for the offence punishable u/s. 326 of I.P.C; A-2 and A-3 are convicted for the

offence punishable u/s. 341 of I.P.C and A-4 and A-5 are convicted for the offence punishable u/s. 323 of I.P.C.

ORDER OF SENTENCE The A-1 is sentenced to undergo rigorous imprisonment for the period of 3 years and to pay fine of Rs.60,000/- for the offence punishable u/s. 326 of I.P.C and in default of payment of fine, to undergo SI for one year.

The A-2 and A-3 are sentenced to pay fine of Rs.500/- each for the offence punishable u/s. 341 of I.P.C and in default of payment of fine, to undergo SI for 15 days.

The A-4 and A-5 are sentenced to pay fine of Rs.1,000/- each for the offence punishable u/s. 323 of I.P.C and in default of payment of fine, to undergo SI for one month.

The period of detention already undergone by the A-1 in this case is given set off u/s. 428 of Cr.P.C.

Out of the compensation of Rs.63,000/-, Rs.62,000/- is ordered to be paid to PW-3 as compensation u/s. 357 Cr.P.C.

MO-1 being valueless ordered to be destroyed after the expiry of appeal period.

Office to furnish free certified copy of the judgment to the A-1 to A-5 forthwith."

9. Being aggrieved by the same, the accused

persons are in appeal before this Court on the following

grounds:

x "That, the Judgment & Order of Conviction passed by the learned Judge is against the facts, materials on record & the settled principles of law & suffers from non- application of mind. Thereby has resulted in miscarriage of justice.

x The learned Judge has committed a serious error in convicting the Appellant without appreciating the evidence in its proper prospective. The reasons assigned by the learned judge to arrive at the impugned judgment are against the facts, materials and evidence brought on record by the prosecution.

x It is respectfully submitted that the case of the prosecution mainly relies upon the evidence of Pw-1, 2, 3 & 4 to establish the charge U/s. 326, 341 & 323 IPC. At the

outset, it is respectfully submitted that, the prosecution mainly relies on the evidence of interested & partisan witnesses who are the close relatives of the injured. It is submitted that, the prosecution has not examined any of the witnesses of the vicinity to lend credence to the prosecution case. On perusal of the evidence of PW-4 who states that at the time of incident about 150 persons of the vicinity had gathered. It is submitted that it is well settled preposition of criminal Jurisprudence that though the evidence of close relatives & family members cannot be discarded for their close relationship with Victim but their evidence requires close & careful scrutiny. The trial court failed to closely scrutinize the evidence of such interested & partisan Witnesses and has readily accepted the same.

x It is respectfully submitted that, the prosecution has suppressed the true genesis of the incident. It is the specific case of the prosecution that, incident which took place infront of the house of Renukawwa Madar

was preceded by a quarrel between Pw-4 & son of Appellant No. 2 Bhimappa. It is the specific case of the prosecution that Pw-3 Shankerappa & other villagers had pacified the quarrel between the Pw-2 & Bhimappa. To establish the said fact the prosecution mainly relies on the evidence of Pw-3 Shankerappa. However interestingly the evidence of Pw-4 Ambrish who is the son of Pw-3 Shankerappa & Complainant specifically states that when had gone to Margamma temple to light the lamp there was a quarrel which ensued between him & Bhimappa the son of Appellant No. 2 & as per his examination in chief & cross examination it was only villagers who had pacified the quarrel between him & Bhimappa. It is submitted that as per PW-4 Shankerappa at no point of time accompanied or pacified the quarrel. So the question of Appellant No. 1 to 5 being enraged with Shankerappa & assaulting him later appears to be false & concocted story. The prosecution has intentionally suppressed the true genesis of the incident.

The incident putforth by the prosecution is sub-version of the truth.

x It is respectfully submitted that, the evidence of these interested Witnesses is contrary to each other and the discrepancy is on such material aspects that it would erode the veracity of the evidence so tendered by these witnesses. It is submitted that, as per the evidence of Pw-1 Complainant & as per the complaint Ex. P.1 lodged by her it was her husband Pw-3 Shankerappa pacified the quarrel between his son Pw-4 & son of Appellant No. 2 & had sat near the temple for sometime & while he was returning to his house & when he was infront of the house of Renukawwa Madar the Appellant No. 1 to 5 assaulted him. But as per the evidence of Pw-3 Shankerappa he was in his house & upon hearing shouting of Appellants he came out of the house & it was then that Appellant No. 1 to 5 have assaulted him. There is material difference in the sequence of events & the manner in which the incident

has unfolded which creates reasonable doubt as to the alleged incident in question.

x It is respectfully submitted that, the evidence of Pw-3 Shankerappa will not in any manner further the case of the prosecution to establish the charges against the Appellants. It is submitted that on perusal of the evidence of Pw-3 he specifically states that it was Pw-1 who had while he was getting treatment at Govt hospital narrated the incident of assault as he fell unconscious after the assault. It is the specific case of the Shankerappa due to assault from behind to his head he fell unconscious & it was only when he had recovered fully he came to know the actual assailants. So, the evidence of Pw-3 does not in any manner further the case of the prosecution to establish the charge against the Appellants.

x It is respectfully submitted that, the trial Court failed to taking into account the mischief played by the prosecution in with holding material witnesses. It is submitted that on perusal of the witnesses examined

by the prosecution none of the witnesses are outsiders. The witnesses are the immediate & close relatives o the Complainant Pw-1. The prosecution atleast should have tendered evidence of independent Witnesses to establish the charge against the Appellants. It is specifically elicited in the evidence of all eye witnesses examined by the prosecution that there were other independent witnesses who had gathered at the spot who were the resident of the vicinity. The cross examination of Pw-4 clearly shows that about 150 people had gathered & none of the said witnesses have been examined by the prosecution. It is submitted that the trial court ought to have drawn adverse inference against the prosecution for withholding material witnesses.

x It Is respectfully submitted that, all the witnesses specifically speak regarding Pw-3 Shankerappa Sustaining bleeding injuries. Curiously the investigation officer does not seize any of the clothes belonging to Pw-3. None seizure of such important materials

also creates doubt regarding the veracity of the incident. The trial court ought to have considered Such none seizure of blood stained clothes of injured fatal to the prosecution as they would clinchingly establish the incident in question.

x It is respectfully submitted that, it is the specific case of the prosecution that immediately after the incident on 19.10.2014 the injured Shankerappa was shifted to Sindagi Govt hospital for immediate medical care & attention. However the prosecution does not produce single document about the treatment taken by the injured Shankerappa at Sindagi Govt. hospital. The prosecution has intentionally withheld such important connecting material which would have clearly shown the injuries sustained by Shankerappa.

x Without prejudice to the above noted grounds, it is submitted that the rigorous imprisonment for three & halt years imposed by the trial Court absolutely is disproportionate to the crime involved. The

trial Court ought to have taken in account the age of the Petitioner, his involvement in nature of crime, its gravity, the backdrop of incident, the punishment thereof and the evidence adduced by the prosecution to bring home the guilt. The trial court has completely over looked the elementary principle of penology that the punishment should be proportionate to the offence involved. The imposition of such long terms of sentence clearly demonstrates the non application of mind by the court below.

x It is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the Appellant in the light of human probabilities & the same has vitiated his findings. The reasons assigned by him in convicting the Appellant are illegal, erroneous, incorrect & perverse. The same has resulted in miscarriage of justice to the Appellant.

x The Appellant seeks leave of this Hon'ble Court to urge the other grounds at the time of final hearing."

10. Learned counsel for the appellants Sri R.S.

Lagali, reiterating the grounds urged in the appeal

memorandum, vehemently contended that the learned trial

judge has failed to appreciate the material on record in its

proper perspective and passed the order of sentence

resulting in miscarriage of justice and sought for allowing

the appeal.

11. Per contra, learned High Court Government

Pleader opposes the appeal grounds and contended that

the injured eyewitness has specifically deposed before the

Court about the individual overt-act alleged against each of

the accused and so also the wife who is complainant in the

case.

12. He further contended that the materials

available on record clearly indicate that accused have

assaulted CW.4-Shankreppa and son of the injured.

13. He also contended that the material evidence

collected by the investigating agency in the form of spot

mahazar, wound certificate and M.O.1-club clearly

establish nexus between the accused and the injuries

found on the body of C.W.4-Shankreppa and therefore,

there is justification in convicting appellant No.1 for the

offence punishable under Section 326 of IPC and rest of

the appellants for the offences under Sections 341 and 323

of IPC and sought for dismissal of the appeal in toto.

14. He also pointed out that the very fact, even

though the prosecution has made out a case under Section

307 of IPC, the trial judge while appreciating the material

on record convicted the appellant No.1 only for the offence

under Section 326 of IPC which shows that there is enough

application of judicious mind considering the facts and

circumstances of the case and therefore, the impugned

judgment does not suffer from any illegality or perversity

and sought for dismissal of the appeal.

15. In view of the rival contentions of the parties

and considering the material on record, the following

points would arise for consideration:

1) Whether the prosecution is successful in establishing that appellant No.1 is guilty of the offence under Section 326 of IPC and appellant Nos.2 and 3 for the offence under Section 341 of IPC and appellant Nos.4 and 5 for the offences under Section 323 of IPC is justified?

2) Whether the impugned judgment suffers from illegality or perversity?

3) Whether the sentence is excessive?

4) What order?

16. In the case on hand, in order to prove its case,

the prosecution has examined Shantabai as P.W.1 and

Shankreppa injured witness is examined as P.W.3;

Manikappa is examined as P.W.2. These are the material

witnesses who speak about the incident and the injuries

sustained by P.W.3. These witnesses specifically deposed

before the Court about the incident and that when

Shankreppa tried to pacify the quarrel between his son and

son of appellant No.2, all the accused persons got enraged

and formed themselves into an unlawful assembly, wanted

to take away life of Shankreppa, at that juncture, appellant

No.1 assaulted P.W.3 with MO.1-club resulting in bleeding

injuries on the head of P.W.3.

17. P.W.1 tried to rescue P.W.3, at that juncture

accused persons have also assaulted her and kicked her.

When P.W.2 intervened, all the accused persons left the

place. The other material witnesses who have been

examined, have also supported the case of the

prosecution. P.W.6 is the doctor who examined P.W.3 and

issued wound certificate vide Ex.P.2.

18. The material documents which are necessary

for appreciating the case of the prosecution is the spot

mahazar, marked as Ex.P.4 and photograph marked as

Ex.P.5. Recovery of club is also established by the

prosecution by examining mahazar witnesses and the

Investigating Officer.

19. The materials on record disclose that even

though mahazar witnesses have not supported the case of

the prosecution, recovery of M.O.1 club under seizure

panchanama and spot panchanama stand established

through the oral evidence of Investigating Officer.

20. It is pertinent to note that material witnesses

P.Ws.1 to 4 have withstood to detailed searching and

cross-examination by the prosecution which would enable

to establish incriminating material so as to disbelieve the

case of the prosecution. Admittedly, motive for the

incident is that P.W.3 tried to pacify the quarrel between

his son and son of appellant No.2. In that regard, M.O.1

has been used by the appellant No.1 for assaulting P.W.3

on his head. Wound certificate clearly shows that injury

No.3 and 4 are on the parietal region of P.W.3 who

suffered bleeding injuries.

21. Further, the doctor who was examined as

P.W.6, has issued wound certificate at Ex.P.2, which

clearly shows that x-ray has been taken. He also deposes

before the Court that injury No.3 and 4 are grievous in

nature.

22. This aspect of the matter has been appreciated

by the learned trial judge and found that the prosecution

has failed to establish all ingredients to attract offence

under Section 307 of IPC and convicted accused No.1 for

the offence under Section 326 of IPC, taking note of the

individual overt-act of accused No.1 in assaulting P.W.3 on

his head with a club which resulted in bleeding injury.

23. What is a grievous injury is no longer res-

integra. The definition of grievous injury as is found in

Section 320 of IPC reads as under:

"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--

First.-- Emasculation.

Secondly.-- Permanent privation of the sight of either eye.

Thirdly.-- Permanent privation of the hearing of either ear,

Fourthly.-- Privation of any member or joint.

Fifthly.-- Destruction or permanent impairing of the powers of any member or joint.

Sixthly.-- Permanent disfiguration of the head or face.

Seventhly.-- Fracture or dislocation of a bone or tooth.

Eighthly.-- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

24. Whenever the prosecution comes up with a

theory that a person has sustained grievous injury, the

evidence that is to be established by the prosecution is

that grievous injury must be proved by the prosecution by

placing necessary oral and documentary evidence on

record.

25. In the case on hand, evidence of injured

witness coupled with oral testimony of P.W.6, doctor, who

issued Ex.P.2 is relied on by the prosecution. In Ex.P.2,

there is mention that x-ray has been taken to assess the

injury Nos.3 and 4 as grievous injury. However, no original

x-ray that is taken or radiological report is produced by the

prosecution to substantiate the oral testimony of P.W.6.

26. In this regard, this Court gainfully places its

reliance on the Division Bench judgment of this Court in

the case of State v. Sheenappa Gowda reported in

2011(4) KCCR 2759, the relevant paragraph is culled out

hereunder:

"11. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that

burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond 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 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".

27. Applying the principles of law enunciated in the

aforesaid decision to the case on hand, in the absence of

producing the original evidence i.e., X-ray and not

examining the radiologist who issued alleged radiological

report which has been relied upon by P.W.6 to classify

injury Nos.3 and 4 as grievous injury while issuing Ex.P.2,

this Court is of the considered opinion that the trial Court

ought not to have convicted accused No.1 for the offence

punishable under Section 326 of IPC.

28. Since there is bleeding injury that is caused on

the head of P.W.3 by using a club, the punishable act that

is attributable to accused No.1 is to be classified under

Section 324 of IPC.

29. Therefore, to that extent, the appeal needs to

be allowed by interfering with the finding recorded by the

learned trial judge. Except the above discrepancy, the

other aspects of the matter has been rightly appreciated

by the trial judge by passing the impugned judgment.

Presence of the accused persons is not in dispute, so also

their individual overt-act insofar as injury Nos.1 and 3 is

not in dispute, accordingly, this Court is of the considered

opinion that point No.1 needs to be answered partly in the

affirmative and so also point No.2.

30. In view of the finding recorded by this Court

that offence attributed to appellant No.1 be placed under

Section 324 of IPC, the sentence ordered by the trial Court

also needs a modification. Further since P.W.3 has spent a

sum of Rs.59,000/- towards the medical expenses for

curing the injuries, the learned trial judge has awarded

compensation in a sum of Rs.60,000/- to be paid to P.W.3.

No amount of compensation is awarded to P.W.1 who also

suffered injuries in the incident.

31. Therefore, this Court is of the considered

opinion that enhancing the compensation amount in a sum

of Rs.40,000/- payable by the appellant No.1 to P.Ws.1

and 3 in a sum of Rs.5,000/- and Rs.35,000/- in addition

to Rs.60,000/- awarded by the trial Court, would meet the

ends of justice. Accordingly, point No.3 is answered partly

in affirmative.

Regarding point No.4

32. In view of the findings on point Nos.1, 2 and 3

discussed above, the following order is passed:

ORDER

Appeal is allowed in part.

While maintaining conviction of accused Nos.2 and 3

for the offence punishable under Section 341 of IPC and

conviction of accused Nos.4 and 5 for the offence

punishable under Section 323 of IPC, the conviction of

appellant No.1 for the offence punishable under Section

326 of IPC is set aside; instead he has been convicted for

the offence punishable under Section 324 of IPC and

imprisonment period of appellant No.1 already undergone

is treated as period of imprisonment and ordered to pay

additional fine amount of Rs.40,000/- (In addition to

Rs.60,000/- as already ordered by the trial Court).

Out of the additional amount of Rs.40,000/- to be

payable by appellant No.1, a sum of Rs.5,000/- be paid to

P.W.1 as compensation and a sum of Rs.35,000/- is

payable to P.W.3 under due identification.

Further time is granted to pay additional

compensation till 10.02.2023.

Office is directed to return the trial Court records

with a copy of this order forthwith.

Sd/-

JUDGE

VNR