M Revanappa vs The State By Shikaripura Police ...
2023 Latest Caselaw 4993 Kant

                          1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JULY, 2023

                     BEFORE

THE HON'BLE MR. JUSTICE RAMACHANDRA D.HUDDAR

   CRIMINAL REVISION PETITION No. 951/2015


BETWEEN:

 1. M. REVANAPPA
    S/O MARIYAPPA
    AGED ABOUT 45 YEARS

2. MANJAPPA
   S/O MAIYAPPA
   AGED ABOUT 52 YEARS.

3. KARIBASAPPA
   S/O MARIYAPPA
   AGED ABOUT 43 YEARS.

4. SHIVAPPA
   S/O MARIYAPPA
   AGED ABOUT 46 YEARS.

  ALL ARE COOLIES AND RESIDENTS
  OF KADENAHALLI VILLAGE,
  SHIKARIPURA TALUK -577 427.
                                     ... PETITIONERS

(BY SRI PAVAN KUMAR N, ADVOCATE.
    SMT.MANJULA.D, ADVOCATE.)
                            2




AND:

   THE STATE BY SHIKARIPURA POLICE STATION
   REPRESENTED BY
   THE STATE PUBLIC PROSECUTOR
   OFFICE OF THE ADVOCATE GENERAL
   HIGH COURT BUILDING
   BENGALURU-560 001.
                                   ... RESPONDENT

(BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 AND 401 OF CR.P.C., PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED
15.04.2009 PASSED IN C.C. NO. 388/2003 ON THE FILE
OF THE CIVIL JUDGE AND J,M.F.C AT SHIKARIPURA AND
CONFIRMING THE SAME BY THE HON'BLE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AT SHIMOGA ON
30.06.2015 IN CRIMINAL APPEAL NO.43/2008 AND
PETITIONERS BE ACQUITTED BY ALLOWING THIS
CRIMINAL REVISION PETITION AND PASS SUCH OTHER
ORDER OR ORDERS AS THIS HON'BLE COURT MAY DEEM
FIT TO GRANT IN THE FACT AND CIRCUMSTANCES OF THE
CASE.

    THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 23.06.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                      ORDER

Petitioners being aggrieved by the Judgment and

Order dated 15.4.2009 passed in CC No.388/2003 by the

Civil Judge and JMFC, Shikaripura of convicting and

sentencing them for the offences punishable under

Secs.323. 326. 504. 506(II) read with Sec.34 of IPC and

the said judgment of conviction and sentence being

confirmed by the Prl.District and Sessions Judge, Shimoga

in Criminal Appeal No.43/2008 dated 30.6.2015 are before

this Court in this revision. Parties to this revision are

referred to as per their rank before the trial Court for the

purpose of convenience.

2. The facts leading upto this revision petition in brief

are as follows:

That, on 1.10.2003 at 6.00 p.m when the injured-

complainant Gangappa-PW.1 was moving towards his

house in front of Mathangamma Temple situated at

Thadenandihalli village, the accused nos. 1 to 4 in

furtherance of their common intention with an ill-will,

abused the complainant in filthy language and tried to

break the peace. In execution of their common intention,

accused no.1 bet the complainant with wooden pounding

stick used for grinding (vanake) and caused him grievous

injury. Accused nos. 2 to 4 fisted the complainant all over

his body and gave a life threat stating they are going to kill

him. Complainant bombarded. People gathered there and

rescued the complainant from the clutches of the accused,

shifted the complainant to Government Hospital

Shiralakoppa where he gave a statement before the Police

at 10.00 p.m i.e before PW.6 K.S.Durgappa Gowda the

then Head Constable of Shiralakoppa Police Station. This

PW.6 came to the Police Station and registered the crime

based on Ex.P1 complainant in Crime No. 147/2002 of

Shiralakoppa Police Station and set the criminal law in

motion. He conducted part of the investigation. PW.7

Sandesh Kumar on taking up investigation, recorded the

statement of witnesses and after completion of

investigation he filed the charge sheet against accused

persons for the offences under Secs.323, 326, 504, 506(II)

read with SEc.34 of IPC.

3. After filing charge sheet, the jurisdictional

Magistrate took cognizance of the offences. The presence

of the accused was secured and they were enlarged on

bail. Copies of the police papers were furnished to the

accused persons as contemplated under Sec.207 of Cr.PC .

After hearing both the sides, charges against accused

persons for the aforesaid offences framed read over and

explained to them in Kannada in the language known to

them. They pleaded not guilty and claimed to be tried.

4. To prove the guilt of the accused, prosecution in

all examined seven witnesses and got marked Ex.P1 to P6

with respective signatures thereon and MO No.1 the

weapon alleged to have been used by accused no.1 to

commit the offence and closed prosecution evidence.

6. Thereafter, the accused Nos .1 to 4 were

questioned under Sec.313 of Cr.PC so as to enable them to

answer the incriminating circumstances appearing in the

evidence of the prosecution. They denied their complicity

in the crime and did not choose to lead any defence

evidence on their behalf.

7. Thereafter, the learned Magistrate having heard

the arguments, found the accused guilty for the aforesaid

offences, convicted them and sentenced them as under:

"Accused Nos. 1 to 4 are hereby sentenced to pay fine of Rs.250.00 each for the offence punishable under section 504 R/w.Section 34 of Indian Penal code. In default to pay fine amount they shall undergo simple imprisonment for a period of one month each.

Accused no.1 to 4 are hereby sentenced to undergo simple imprisonment for a period of three months each for the offence punishable under Section 323 R/w.Sec.34 of IPC.

Accused No.1 to 4 are hereby sentenced to undergo simple imprisonment for a period of two years each for the offence punishable under Section 326 R/w.Sec.34 of IPC and they shall pay fine of Rs.3,000/- each for the offence punishable u/s.326 R/w.34 of IPC.

Accused No.1 to 4 are hereby sentenced to undergo simple imprisonment for a period of six months each for the offence punishable under section 506 R/w.Sec.34 of IPC.

Acting under Section 357 of Cr.P.C. it is ordered that Rs.10,000/- out of fine amount shall be given to complainant as compensation for the injuries sustained by him in the accident.

M.O.1 is ordered to be destroyed after the appeal period is over."

8. This judgment of conviction and sentence was

challenged by the accused persons before the Sessions

Court in Criminal Appeal No.43/2008. The learned

Prl.District and Sessions Judge, Shimoga by her Judgment

dated 30.06.2015 confirmed the said Judgment of

Conviction and Sentence and dismissed the appeal.

9. Now, the petitioners being accused nos. 1 to 4 are

before this Court challenging both the judgments by filing

this revision petition.

Submissions of Counsel for Petitioner/Accused:

10. The learned counsel for the revision petitioners

relies upon the evidence of various witnesses so recorded

in this case and submits that except the evidence of

complainant there is no proper evidence being adduced by

the prosecution. There are more contradictions, omissions

in the evidence of PW.1 to 3. The so called eye witness

PW.4 having been turned hostile, PW.6 and 7 are the

police officers and PW.5 is the doctor. The very evidence of

PW.1 is doubtful. If at all the Court comes to the

conclusion of finding the accused guilty, it is submitted

that the provisions of Sections 3 and 4 and of the

Probation of Offenders Act be invoked. In support of his

submission, he relied upon an unreported Division Bench

judgment of this Court in Criminal Appeal 1962/2017

wherein, it is held that by giving benefit of doubt, the

accused may be acquitted.

Submission of State:

11. As against this submission, the learned HCGP

supported the reasons being stated by the trial Court and

first Appellate court in convicting the accused. PW.1 is the

injured person and he has stated about the incident and

assault on him by the accused persons. Therefore, he

prays to dismiss the revision petition by confirming both

the judgments.

ANALYSIS

12. PW.1 being the complainant injured has

reiterated the contents of the complaint in his evidence on

oath. He speaks with regard to the motive of committing

the crime by the accused persons. He states that accused

nos.1 to 4 are his neighbours and they are all of same

village. He further states that accused no.3 had put forth

near the grinding stone. Therefore, as the complainant

questioned about the same, there was a oral quarrel

between the accused persons and the complainant. After

two days of the said incident, with an ill will of questioning

the said act of accused no.3, when complainant PW.1 was

returning to his house at 6.00 p.m from milk dairy, by the

side, near their house, accused nos. 1 to 4 together

abused the complainant in filthy language.

13. By saying so, accused no.1 assaulted the

complainant by using MO No.1 i.e. grinding stick i.e.

(Vanake) on his left leg and other accused persons 2 to 4

fisted him on his back and waist. Because of this assault

on the leg of the complainant, he fell down. One

Hanumanthappa and his wife came and rescued the

complainant. Thereafter, he was shifted to Hospital in a

tractor. When the incident took place, accused no.1 also

gave threat that he is going to break another leg of the

complainant. When he was in the hospital, police came and

took his statement as per Ex.P1. He identified MO No.1 as

a weapon used to assault him by accused no.1. He further

deposes that, because of this assault on his left leg he

suffered fracture. The Doctor fixed the rod and now he is

unable to walk. He has to use the walker.

14. To prove the injury sustained by him, he relies

upon Ex.P4, the wound certificate issued by medical

officer, Primary Health Centre, Shiralakoppa where initially

the complainant injured took treatment immediately after

the incident. The contents of Ex.P4 read as under:

"1.Lacerated injury present on the middle of the left leg on the anterior aspect, about 2 cm length and 1 cm breadth, deep to skin and broken bone pieces are coming out from that lacerated injury site.

There is a # of the tibia and fibula present at the lower 1/3rd of the leg bones.

Referring the case to the Higher Centre for further management."

15. Thus, as per the wound certificate complainant

had suffered fracture to his tibia and fibula of his left leg

and there was a comminuted fracture of lower 1/3rd of

tibia and fibula. To show that he underwent surgery, he

has produced Ex.P5 the report regarding treatment

administered on PW.1. He was in the Govt.Hospital,

Chigateri, Davanagere as in-patient from 2.10.2003 to

7.11.2003. During this period, he underwent surgery as

stated by him in his evidence.

16. This PW.1 was cross-examined by defence

counsel. On reading the cross-examination, there is no

denial about the incident effectively by the accused

persons. With regard to the motive, it is elicited that as

because accused no.3 had put the filth near the grinding

stone, there was a galata between complainant and

accused no.1. There is no further denial of this fact by the

accused persons. During the course of cross examination,

the defence was tried to put up that accused no.1 was

working at Seeds Corporation at Pattadakal in Badami Tq.

and there was a request for him to provide a job as

accused no.1. did not respond, therefore, a false complaint

is lodged against the accused persons. So far as working of

accused no.1 at the said place, is admitted by PW.1 but,

the other suggestions are denied by this PW.1.

17. PW.1 further states that accused no.2 and 3

fisted him by surrounding him. Accused no.4 assaulted him

by using his hand on his face. But, had not sustained any

bleeding injuries. He further states that at the time of

incident, 10 to 20 persons gathered there. CW.2 to4 came

to the scene of offence immediately after assault on him. It

is admitted by him that, by the side of scene of offence,

there exists a drainage having a depth of one and a half ft.

Accused no.1. assaulted him by standing 3 to 4 ft. away

from him. Immediately after assault he fell down. Though

lengthy cross-examination is directed, but, nothing worth

is elicited from the mouth of PW.1 so as to disbelieve his

version.

18. PW.2 Jayamma is none else than the wife of the

complainants corroborates the evidence of PW.1 in

material particulars and specifically states about the

motive as stated by PW.1. She also states about the

incident of assault on her husband PW.1 by accused no.1.

With MO.No.1 and also assault by accused no 2 to 4 by

using their hands. She states that her brother

Hanumanthappa and another Talawar Hanumanthappa

rescued the complainant. Initially he was taken to

Shiralakoppa Hospital thereafter he was shifted to

Davanagere Hospital as doctors of Shiralakpppa hospital

pleaded their inability to treat the complainant. According

to her, her husband took treatment at Davanagere

Hospital for seven months as in-patient and thereafter,

took treatment as out-patient for three months, without

stretches he cannot walk. She identifies the weapon used

by the accused no.1. to commit the offence.

19. She also has been cross-examined by the

defence. But, she is consistent about the incident of

assault on the person of her husband by the accused

persons. She states that after the incident her brother took

that MO no.1 in his house as accused no.1 left the said

weapon at the scene of offence. He handed over the MO

no.1 to the police.

20. P.W.3 Hanumanthappa is a person who rescued

the complainant from the hands of the accused persons

and is an eye witness for the said incident being the

brother of the PW.2. He too corroborates the evidence of

PW.1 and 2 in material particulars and specifically states

that because of assault on the person of complainant by

accused no.1. on his left leg, there was fracture being

sustained by PW.1. Now also he is unable to walk properly.

He further states that when scene of offence Panchanama

was conducted he was very much present. According to

him, police came to the scene of offence, conducted the

spot panchanama Ex.P2 and he signed the said document

as pancha. he identifies his signature as per Ex.P2(a).

21. It is elicited in the cross-examination that, after

hearing the bombardment PW.1, he went to the scene of

offence. PW.1 cried stating his leg was fractured. Then he

went to the scene of offence and noticed that MO No.1 was

in the hands of accused no.1. He snatched the said MO

NO.1 and kept in his house. He speaks about the visit of

the Police to the Shiralakpppa Hospital and recording of

statement of PW.1 so also speaks of visit of police to scene

of offence on the following day in between 1.30 p.m. and

2.00 p.m. There is no effective cross-examination dircted

to PW.3 so as to disbelieve his version during the

examination-in-chief.

22. P.W.4 Hanumanthappa Fakirappa has been cited

as eye -witness by the prosecution but he has been turned

hostile. Nothing worth is elicited so as to disbelieve his

version during examination-in-chief; Therefore, evidence

of PW.4 could not help the case of the prosecution.

23. P.W5 Dr.Gangibai initially medically examined

PW.1 at 1.10 2003 at 9.00 p.m. and noticed the injuries as

stated in the wound certification Ex.P4. According to her

evidence, for further treatment, she sent the complainant

injured to Chigateri Hospital, Davanagere where he took

treatment from 2.10.2003 to 7.11.2003.

24. She has been cross-examined by the defence. It

is suggested that if a person falls in a drainage there is a

possibility of such a fracture as noticed in Ex.P4. PW.5 has

given positive answer to the said suggestion. But, no such

suggestion was directed to PW.1 questioning him that, he

fell in a drainage and sustained fracture. So therefore, in

the absence of such evidence from the mouth of PW.1, the

very defence of accused person that, the said fracture is

because of self fall by PW.1 cannot be accepted.

25. PW.6 and 7 are the investigation officers. On

reading the evidence of PWs.6 and 7, they speak with

regard to the investigation so lead by him of the crime

based upon the complaint being lodged by PW.1 by giving

his statement in the hospital itself. No effective cross

examination is directed to these witnesses by the defence.

26. On reading the entire text of evidence spoken to

by PWs.1 to 3 contents of Ex.P 1 and 2, complainant

panchanma with each other, they are corroborative in

nature. Above contents of wound certificate Ex.P4 and P5

have been spoken to by Dr. PW.5. Ex.P6 is the FIR. These

documents are not disputed by the defence.

27. The only grievance of the defence is that, PW.1

is the husband of PW.2 and PW.3 is the brother of PW.2

and all are relatives. Therefore, they are all interested

witnesses. Therefore, their evidence cannot be accepted. It

is true that they are inter-se relatives. There is no rule as

such that evidence of relative witnesses cannot be

accepted. It is settled principle of law, evidence of relations

have to be scrutinized carefully and cautiously. Why

complainant and PW.2 and 3 his relations have falsely

implicated the accused persons is to be explained by the

accused persons. Except denial, nothing is elicited from the

mouth of these witnesses. PW.1 to 3 have spoken about

the ill will or animosity in between complainant and

accused persons and because of putting the filth near the

grinding stone when questioned by the complainant to

accused no.3, there was a quarrel. After two days of the

said incident, at about 6 p.m. when the complainant alone

was moving towards his house at that time, by the side of

the temple of the said village, these accused persons

abused him in filthy language, gave life threat to him and

accused no.1. by using MO no.1 assaulted him on his left

leg resulting fracture to his tibia and fibula. Thereby, the

complainant suffered comminuted fracture and was

compelled to take treatment in the hospital and in-ptient

and also out-patient. Even on the date of giving evidence

after five years of the incident, it is submitted by the HCGP

that complainant was unable to walk and he had to use the

stretches. This fact is also not denied by the defence.

28. Thought the learned counsel for the accused

placed reliance on unreported judgment of this court, the

facts of this case are quite different than the said case.

Therefore, the observation so made in the said judgment

cannot be justifiably made applicable to the facts of this

case.

29. In this case, Ex.P5 and P6 are the wound

certificate and medical reports wherein they show all the

injury suffered by the complainant PW.1 are at the hands

of accused persons. Though it has come in the evidence

that there were no bleeding injury on the face, back and

waist, but, the injury defined under Sec.319 of IPC

specifically speaks with regard to `hurt'. It is stated that

even a causing a bodily pain can be said to be causing

`hurt'. In this case, the injured victim in his examination-

in-chief/deposition has specifically stated that after he

sustained injuries initially he was provided a treatment at

Shiralakoppa Primary Health Centre. He has further stated

that he was taken to Chigateri Hospital, Davanagere for

further treatment. He is specific in his evidence that, it is

accused no.1. assaulted him by using MO no.1 on his left

leg and thereby he sustained fracture. His evidence is

corroborated by the evidence of PWs.2 and 3.

30. Thus, evidence of PWs. 1 to 3 establish that, the

victim PW.1 was assaulted by accused no.1 to 4 i.e.

accused no.1 assaulted him with MO no.1 a grinding stick

and accused nos. 2 to 4 assaulted him by using their

hands. No doubt, there may not be any serious injuries

because of assault by hands, but, by using MO no.1 a

serious injury of fracture of tibia and fibula having been

sustained by complainant PW.1.

31. Further, it is the case of the prosecution that,

because of this assault on PW.1., he sustained fracture and

this fracture comes under the definition of `grievous hurt'.

Under the criminal jurisprudence, the evidence of injured

witness have got full weightage this evidence is cogent and

convincing. As held in catena of judgment of Hon'ble Apex

Court, the evidence of injured witness have great weight

and very cogent and convincing grounds are required to

discard the evidence of the injured.

32. Here in this deposition of PW.1 injured witness

should be relied upon as there is corroborative evidence

spoken to by PWs. 2 and 3 abut the assault on him by the

accused persons. Their evidence is supported by evidence

of doctor. There are no strong grounds for rejection of

PW1's evidence. When the evidence is recorded after five

years of the incident, there bound to arise some

contradictions, discrepancies which would not go to the

root of the case. Further, the presence of PW.1 being the

injured witness at the time and place of occurrence cannot

be doubted as it is supported by the other material

particulars about the presence of accused persons being

the authors of the crime in the commission of the offence.

There is no explanation offered by the accused persons.

33. In view of all these factual features coupled with

the evidence placed on recorded proves the guilt of the

accused to the hilt. The Hon'ble Apex Court in a judgment

in Lakshman Singh vs. State of Bihar(now

Jharkhand)1 have held with regard to the appreciation of

evidence of a injured witness as under:

" It is observed that PWs 5, 8 and 10 are the injured witnesses. Even after they have been fully cross-examined, they have fully supported the case of the prosecution, even after thorough cross-examination on behalf of the accused.

The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. It is natural that exact version of incident revealing every minute detail i.e. meticulous exactitude of individual acts, cannot be given by eyewitnesses. Where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of crime and is unlikely to spare

2021(9) SCC 191

his actual assailant(s) in order to falsely implicate someone. Thus, deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein. Evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence. Further, being injured witnesses, their presence at the time and place of occurrence cannot be doubted."

34. The said principle laid down by the Hon'ble

Supreme Court can very well be applied to the present

case. In this case also, PW. 1 being injured has stated

about his presence and presence of accused. 1 to 4 and

also assault on him by the accused persons, abusing him

in filthy language, the accused are neighbours and there is

no false implication of the accused by the complainant.

35. In view of the above, I am of the firm view that

the petitioners being accused nos. 1 to 4 are rightly

convicted for the offences Secs.323. 326. 504. 506(II)

read with Sec.34 of IPC and sentenced by the trial court.

36. The trial court as well as first appellate court

have properly appreciated the evidence placed on record

by the prosecution and have rightly convicted the accused

persons as stated above.

37. Though it is submitted that the provisions of

Probation of Offenders Act be applied to the present facts

of the case, the offence under Sec.326 of IPC is a heinous

offence and punishment prescribed for the said offence is

imprisonment for life or imprisonment for 10 years and

fine. No grounds have been made to so as to invoke the

provisions of Probation of Offenders Act by the defence

therefore, the submission of the council for petitioners-

accused nos. 1 to 4 cannot be accepted. Except the

submission that the incident has taken place during 2003,

there are no other mitigating circumstances so as to show

any leniency in reducing the sentence. Hence, the

sentence so imposed on accused nos. 1 to 4 appears to be

proper.

38. On perusal of the trial Court judgment, though

the accused nos. 1 to 4 are sentenced for various offences

under Sec. 504, 323, 326,506 of IPC, but, there is no

order to run he said sentences concurrently. Therefore, to

meet the ends of justice it is just and proper to order that

the sentences so imposed shall run concurrently.

39. In view of the above and for the reasons so

stated hereinabove, the revision petition filed by the

petitioners accused nos. 1 to 4 fail and is liable to be

dismissed. Hence, the following:

ORDER

i) The Revision Petition is dismissed.

ii) Order dated 15.04.2009 passed in C.C. No. 388/2003 on the file of the Civil Judge And J,M.F.C At Shikaripura and confirmed by the Hon'ble Principal District And Sessions Judge at Shimoga on 30.06.2015 in Criminal Appeal No. 43/2008, are hereby affirmed.

iii) The sentences so imposed on the accused nos. 1 to 4 shall run concurrently.

iii) The accused nos. 1 to 4 are hereby directed to surrender before the trial Court within fifteen days from today and shall undergo imprisonment.

iv)Trial Court shall take appropriate steps to secure the presence of accused nos. 1 to 4 and commit them to prison to undergo sentence.

               v) Intimate the final order to the
       Prl.District   and    Sessions     Judge,
       Shivamogga and also Civil Judge and
       JMFC, Shikaripura forthwith.

               vi) Send back the trial court
       records as well as Sessions Court
       records forthwith along with a copy of
       this order.



                                  Sd/-
                                 JUDGE


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