Hanamanth S/O Veershetty vs The State Through
2023 Latest Caselaw 594 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 10TH DAY OF JANUARY, 2023

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION No.200056/2017
BETWEEN:

HANAMANTH S/O VEERSHETTY
AGE: 31 YEARS, OCC: DRIVER,
R/O GADGI VILLAGE, TQ. & DIST. BIDAR
                                         ... PETITIONER
(BY SRI RAVI K. ANOOR, ADVOCATE)

AND:

THE STATE THROUGH
BIDAR RURAL POLICE STATION,
DIST. BIDAR, NOW REPRESENTED BY
ADDL. SPP, HIGH COURT OF KARNATAKA,
AT KALABURAGI BENGH
                                        ... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT PASSED BY I-ADDITIONAL CIVIL JUDGE
AND JMFC-II COURT AT BIDAR IN C.C.NO.1343/2013 DATED
15TH DECEMBER 2015 AND FURTHER, THE SAME BEING
CONFIRMED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE AT BIDAR IN CRIMINAL APPEAL NO.52/2015 BY
JUDGMENT DATED 20TH OCTOBER 2016.

     THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                        ORDER

Heard Sri Ravi K. Anoor, learned counsel for the

petitioner and Sri Gururaj V. Hasilkar, learned High Court

Government Pleader for the respondent.

2. The present revision petition is filed

challenging the judgment dated 15.12.2015 passed in

C.C.No.1343/2013 by I-Additional Civil Judge and JMFC-II

at Bidar, whereby the accused came to be convicted for

the offences punishable under Sections 326, 504 and 506

of IPC and confirmed by the Principal District and Sessions

Judge, Bidar, in Criminal Appeal No.52/2015 by judgment

dated 20.10.2016.

3. Brief facts which are necessary for disposal of

the present revision petition are as under:

The prosecution alleged that Munnemma, being the

close relative of the complainant, is the wife of the

accused. The accused used to suspect her chastity and

used to physically harass her. The complainant enquired

the grievances of Munnemma over telephone and advised

Munnemma and accused maintained cordial relationship

with her. Thereafterwards, it is revealed that in respect of

an autorickshaw, the relationship between Munnemma and

her husband got strained. When the matter stood thus, on

08.05.2013 at about 8.00 p.m., when the complainant

called Munnemma over telephone, the accused received

the telephone call and started abusing the complainant in

filthy language and questioned him as to what is the

relationship he is having with Munnemma. On the same

day, at about 10.00 p.m., when the complainant was

standing outside his house, one Jaganath Shetkar along

with Sidram Shetkar and Kashinath accompanied the

accused, came to him and questioned him as to why he is

talking to the wife of the accused and what is the

relationship that is existing between the complainant and

wife of the accused and all of a sudden, attacked the

complainant and abused him in filthy language and

assaulted him with knife on the left side of the rib causing

grievous injuries to the complainant which resulted in filing

a complaint before Bidar Rural Police for the aforesaid

offences.

4. After registering the case and after conducting

detailed investigation, Bidar Rural Police filed a

chargesheet against the accused.

5. The presence of the accused was secured

before the jurisdictional Magistrate and necessary charges

were framed for the aforesaid offences.

6. Since the accused person did not plead guilty,

the trial was held.

7. In the Trial Court, in order to prove the case of

the prosecution, in all, 8 witnesses were examined on

behalf of the prosecution as PWs.1 to 8 and 6 documentary

evidence were relied upon by the prosecution which were

exhibited and marked as Exs.P1 to P6 and one material

object namely the knife was also marked as M.O.1 on

behalf of the prosecution.

8. Thereafterwards, the accused statement as

contemplated under Section 313 of Cr.P.C., was recorded

before the learned Magistrate wherein the accused has

denied all the incriminating circumstances that were found

against the accused and did not offer any explanation in

writing as is contemplated under Section 313(5) of Cr.P.C.

Thereafter, the learned Magistrate heard the parties and

on cumulative consideration of the oral and documentary

evidence on record, passed an order of conviction against

the accused for the offences punishable under Sections

326, 504 and 506 of IPC and passed the following

sentence:

"Accused is convicted for the offence u/s 326 of IPC. He is sentenced to undergo S.I for 2 years and accused is directed to pay a fine of Rs. 3000/-.

Accused is convicted for the offence u/s 504 of IPC. He is sentenced to undergo S.I for 3 months.

Accused is convicted for the offence u/s 506 of IPC. He is sentenced to undergo S.I for 3 months.

Out of the fine amount of Rs.3000/- (Three thousand), Rs.2000/- is ordered to be paid to the PW-1 as compensation.

           All     these   sentences     shall     run
     concurrently.

Office is directed to supply free copy of this judgment to the accused."

9. Being aggrieved by the same, the

accused/petitioner preferred an appeal before the Principal

District and Sessions Judge, Bidar, in Criminal Appeal

No.52/2015.

10. The learned Sessions Judge secured the Trial

Court records and after hearing the parties, dismissed the

appeal of the accused/petitioner by judgment dated

20.10.2016 and confirmed the order of sentence.

11. Being aggrieved by the same, the

accused/petitioner is before this Court in this revision

petition.

12. Sri Ravi K. Anoor, learned counsel for the

petitioner reiterating the grounds urged in the revision

petition contended that both the Courts have not properly

appreciated the material evidence on record. He also

contended that the injury found on the body of the injured

person is a not grievous injury and therefore, the Trial

Court ought not to have convicted the petitioner for the

offence punishable under Section 326 of IPC and sought

for allowing the revision petition.

13. He further contended that at the most,

material available on record would only indicate that the

accused is guilty of the offence punishable under Section

324 of IPC and therefore, the conviction order be modified

and the accused be convicted for the offence punishable

under Section 324 of IPC and probation be granted by

enhancing the compensation amount.

14. Per contra, learned High Court Government

Pleader vehemently contended that the material evidence

on record has been rightly appreciated by both the Courts.

15. It is further contended by learned High Court

Government Pleader that having regard to the scope of

revision petition, this Court cannot re-visit into the factual

aspects of the matter and when the injured eyewitness has

supported the case of the prosecution coupled with other

material evidence on record including the medical

evidence, the Trial Court and the First Appellate Court has

rightly convicted the petitioner for the offence punishable

under Section 326 of IPC and sought for dismissal of the

revision petition in toto.

16. In view of the rival contentions of the parties,

the following points would arise for consideration:

1) Whether the finding recorded by the learned Trial Judge in C.C.No.1343/2013 that the accused is guilty for the offences

punishable under Sections 326, 504 and 506 of IPC and confirmed by the learned District Judge in Criminal Appeal No.52/2015 is suffering from legal infirmity or perversity and thus calls for interference?

2) Whether the revision petitioner makes out that there is an error of jurisdiction?

3) Whether the sentence is excessive?

4) What order?

17. Having regard to the scope of the revision

petition filed under Section 397 of Cr.P.C., this Court

perused the material on record in view of the rival

contentions of the parties.

18. In the case on hand, Sheshanath, injured/

complainant is examined as PW.1. He is an Autorickshaw

driver by profession. He deposed about the incident that

has occurred on the fateful day with graphic details.

19. In his detailed cross-examination, there is a

suggestion made to him that there is a previous enmity

between him and the accused. The said suggestion is

admitted by him. A suggestion is also made to him that

under the influence of liquor, he fell down and sustained

injuries and a false case has been foisted against the

petitioner is denied by him. The version of PW.1 is

supported by the medical evidence by examining the

doctor-Juber who treated the complainant on 08.05.2013

at about 11.17 p.m., in the District Hospital and issued

wound certificate vide Ex.P5. In the wound certificate,

injury noted by PW.7 is as under:

"left lumbar about 2 .cm., cut injury"

20. In the cross-examination of PW.7, it is

suggested that cut injury is occurred by a sharp edged

weapon. The witness further admits that if there is injury

caused by sharp edged weapon, there would be profused

bleeding. He admits that if the person is injured with a

profused bleeding, he would be unconscious. He admits

that he has not mentioned the age of the injury in Ex.P5.

He also admits that PW.1 was conscious when he treated

him.

21. Further, on cumulative consideration of

material on record, the Investigating Agency was able to

establish the nexus between the incident and the accused

by recovering the knife used in the incident.

22. All these aspects of the matter has been rightly

appreciated by the learned Trial Judge while convicting the

accused for the aforesaid offences. The learned appellate

Judge on re-appreciation of the material evidence on

record has also recorded a categorical finding that the

prosecution is successful in establishing the charges

levelled against the accused and dismissed the appeal.

23. However, both the Courts below failed to note

that whether the injury mentioned in Ex.P5 could be a

grievous injury. In order to appreciate the said aspect of

the matter, it is necessary to cull out Section 320 of IPC

which 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. On perusal of the above provision of law, the

injury mentioned in Ex.P5 cannot be classified as grievous

injury in the absence of three dimensional measurements

being observed and recorded by PW.7 in Ex.P5. For an

injury to be classified as a grievous injury, the doctor who

examined PW.1 must mention in the wound certificate as

to the length, breadth and depth of the injury.

25. In the case on hand, no such measurements

are given by PW.7 in Ex.P5. Further, in the cross-

examination of PW.7, he admits that if a grievous injury is

caused especially on the abdominal region by virtue of a

assault by a sharp edged weapon, there would be profused

bleeding resulting in unconsciousness of the injured.

26. In the case on hand, PW.7 while examining

PW.1, PW.1 was very much conscious and he was taken to

the hospital by his brother. He also admits that there was

no profused bleeding and PW.7 failed to mention the age

of the injury, but he has stated that it is a fresh injury.

27. Taking note of these aspects of the matter,

especially, in the absence of any further material to prove

that the injury noted by PW.7 in Ex.P5 being a grievous

injury, this Court is of the considered opinion that based

on the oral testimony of PW.7 alone which is a opinion

evidence as per Section 45 of the Indian Evidence Act, the

Trial Court ought not to have held the injury as a grievous

injury based only on the testimony of PW.7.

28. Therefore, conviction of the accused for the

offence punishable under Section 326 of IPC, thus is

incorrect and therefore, there is an error of jurisdiction by

the learned Magistrate which has been ignored by the

learned Judge in the First Appellate Court while re-

appreciating the material evidence on record resulting in

miscarriage of justice.

29. Therefore, to that extent, the matter requires

interference by this Court even in the revisional

jurisdiction. Accordingly, point Nos.(1) and (2) are

answered in partly affirmative.

Regarding point No.(3):

30. This Court having recorded a categorical

finding that the injury caused to PW.1 by the assault made

by the accused with M.O.1 could not be under Section 326

of IPC, it could be traced down to Section 324 of IPC, as

there is a bleeding injury caused by assault with M.O.1 by

the accused to the complainant.

31. Since the offence is scaled down to Section

324 of IPC from Section 326 of IPC, it is now the task of

this Court to find out whether the accused is entitled to

grant of probation under Section 4 of the Probation of

Offenders Act, 1958 (for short, hereinafter referred to as

'the Act').

32. Admittedly, the accused is a first time offender

and there is no material on record to show that he is

having a criminal antecedent.

33. However, learned High Court Government

Pleader contended that in the event of granting of

probation to the accused/petitioner, report from the

Probation Officer is necessary.

34. Admittedly, the incident has occurred on

08.05.2013. As on today, almost ten years have lapsed

and no further complaints are found as against the

petitioner. There is no complaint that there was a breach

of bail conditions during the trial or before the First

Appellate Court. At this distance of time, remitting the

matter only for the purpose of obtaining the report from

the Probation Officer would result in futile exercise and

therefore, this Court is of the considered opinion that the

petitioner may be granted the benefit of probation.

35. Further, this Court cannot lose the sight of

Section 5 of the Act especially when it is being granted for

the first time before the revisional Court. The Trial Court

has granted compensation in a sum of Rs.2,000/- to PW.1

payable by the accused. Taking note of the fact that the

complainant has suffered injury on the lumbar region,

ordering Rs.2,000/- as compensation would be too low and

therefore, the accused is directed to pay adequate

compensation. Ordering the accused to execute the bond

in a sum of Rs.25,000/- with two sureties for the likesum

for his good behaviour and directing him to pay a fine of

Rs.40,000/- for the offences punishable under Sections

324, 504 and 506 of IPC and ordering a sum of

Rs.35,000/- out of the fine amount, as compensation

would meet the ends of justice. Accordingly, point No.(3)

is answered.

Regarding point No.(4):

36. In view of the finding of this Court on point

Nos.(1) to (3) as above, the following order is passed:

ORDER

(i) The criminal revision petition is allowed in part.

(ii) The judgment of conviction passed by I-Additional Civil Judge and JMFC-II, Bidar, in C.C.No.1343/2013 and confirmed by the Principal District and Sessions Judge, Bidar, in Criminal No.52/2015 convicting the accused/petitioner for the offence punishable under Section 326 of IPC is hereby set aside and instead, he is convicted for the offence punishable under Section 324 of IPC.

(iii)   Conviction      of    the    accused       under
        Sections 504         and 506 of         IPC     is
        maintained.

(iv)    The      accused/petitioner        is   granted

benefit of probation and he is directed to execute a bond in a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) with two sureties for the likesum to the satisfaction the

learned Trial Magistrate, for his good behaviour, which shall be in force for a period of two years from the date of execution, and he is directed to pay a fine amount of Rs.40,000/- in respect of all the offences punishable under Sections 324, 504 and 506 of IPC.

(v) Out of the fine amount recovered, a sum of Rs.35,000/- is ordered to be paid as compensation to PW.1 under due identification.

(vi) Time is granted to the petitioner to execute the bond and to pay fine amount till 10.02.2023, failing which, the accused/petitioner is directed to undergo sentence of imprisonment for a period of two months for the offence punishable under Section 324 of IPC.

Sd/-

JUDGE NB*