Krishna Ganapu Naik vs State Of Karnataka
2023 Latest Caselaw 2742 Kant

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                                                          CRL.RP No. 100154 of 2021




                                  IN THE HIGH COURT OF KARNATAKA

                                           DHARWAD BENCH

                               DATED THIS THE 1ST DAY OF JUNE, 2023

                                                 BEFORE
                               THE HON'BLE MR JUSTICE ANIL B KATTI
                                 CRL. R.P. NO. 100154 OF 2021 (397-)
                        BETWEEN:

                        1.   KRISHNA GANAPU NAIK
                             AGED ABOUT 54 YEARS, OCC: AGRI
                             RESIDING AT YANA, ATTIBETTU,
                             KUMTA TALUK,
                             UTTARA KANNADA DISTRICT-581343.

                        2.   GANAPATI KRISHNA NAIK
                             AGED ABOUT 29 YEARS, OCC: AGRI
                             RESIDING AT YANA, ATTIBETTU,
                             KUMTA TALUK,
                             UTTARA KANNADA DISTRICT-581343.

                        3.   NAGARAJ KRISHNA NAIK
                             AGED ABOUT 28 YEARS, OCC: AGRI
          Digitally          RESIDING AT YANA, ATTIBETTU,
          signed by J
J
          MAMATHA            KUMTA TALUK,
MAMATHA   Date:
          2023.06.06         UTTARA KANNADA DISTRICT-581343.
          12:14:56 -
          0700
                        4.   RAGHAVENDRA KRISHNA NAIK
                             AGED ABOUT 25 YEARS, OCC: AGRI
                             RESIDING AT YANA, ATTIBETTU,
                             KUMTA TALUK,
                             UTTARA KANNADA DISTRICT-581343.


                                                                       ...PETITIONERS

                        (BY SRI. ANKIT DESAI, ADV. FOR
                            SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV.)
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                                      CRL.RP No. 100154 of 2021




AND:

STATE OF KARNATAKA
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
BY ITS UTTARA KANNADA-581343,
(KUMTA POLICE STATION)


                                                   ...RESPONDENT

(BY SRI. RAMESH CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C., SEEKING TO SET ASIDE THE ORDER DATED
11.02.2021 DISMISSING THE APPEAL PREFERRED BY THE
PETITIONERS HEREIN IN CRL. A.NO.102/2006 PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA AT KARWAR
CONFIRMING THE JUDGMENT OF CONVICTION DATED 16/05/2006
IN C.C.NO.293/2005 PASSED BY THE JMFC, KUMTA CONVICTING
THE ACCUSED NO.1 TO 4 / PETITIONERS FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 504, 506, 326 R/W 34 OF IPC, 1860.

     THIS CRIMINAL REVISION PETITION, COMING ON              FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:



                             ORDER

Revision petitioners-accused Nos.1 to 4 feeling aggrieved

by judgment of first Appellate Court on the file of Prl. District

and Sessions Judge, Uttar Kannada, Karwar in

Crl.A.No.102/2006, dated 11.2.2021, preferred this revision

petition.

CRL.RP No. 100154 of 2021

2. Parties to the petition are referred with their ranks

as assigned in the trial Court for the sake of convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that on

19.9.2004 at about 4.45 p.m. accused persons formed

themselves into unlawful assembly came to the house of

complainant and they abused complainant in filthy language.

When complainant questioned about removal of coconuts which

were fallen in the land encroached by complainant, accused

No.3 assaulted complainant on his right fore arm and other

accused assaulted complainant with hands and stones. As a

result, complainant sustained grievous injuries. On these

allegations made in complaint, case was registered in Crime

No.214/2004 of Kumata police station for the offences

punishable under Sections 326, 504, 506 of IPC. The

investigating officer on completion of investigation filed charge

sheet.

appeared through learned counsel. The trial Court on being

prima facie satisfied, framed charges against all the accused for

CRL.RP No. 100154 of 2021

aforesaid offences, they pleaded not guilty and claimed to be

tried. The prosecution to prove the charges leveled against the

accused, relied on the evidence of PWs.1 to 11 and documents

at Ex.P.1 to 5, so also got identified M.O.1. and Ex.D.1 came to

be marked through evidence of PW.2.

5. On closure of prosecution evidence, statement of

accused under Section 313 of Cr.P.C. came to be recorded.

Accused denied all incriminating material evidence appearing

against them and claimed that false case is filed. The trial Court

after appreciation of evidence, convicted all accused for the

aforesaid offences and imposed sentence as per order of

sentence.

6. Accused Nos. 1 to 4 challenged the said judgment

of conviction and order of sentence before first Appellate Court

on the file of Prl. District and Sessions Judge, Uttar Kannada,

Karwar in Crl.A.No.102/2006. The first Appellate Court on re-

appreciation of evidence by judgment dated 11.02.2021

dismissed the appeal and confirmed the judgment of conviction

and order of sentence passed by the trial Court.

CRL.RP No. 100154 of 2021

7. Revision petitioners-accused, challenged concurrent

findings of both Courts below contending that both Courts

below have not properly appreciated the evidence on record.

The civil dispute between the parties has been converted into

criminal case. The alleged injury suffered by complaint as per

wound certificate-Ex.P.4 and evidence of PW.11-doctor is

insufficient to attract penal action in terms of Section 326 of

IPC. The finding recorded by both Courts below in holding

accused guilty for the aforesaid offences cannot be legally

sustained. Therefore, prayed for allowing the revision petition

and to set aside judgment of conviction and order of sentence

passed by both Courts below. Consequently, to acquit accused

Nos. 1 to 4 from the charges leveled against them.

8. Heard the arguments of both sides.

9. On careful perusal of oral and documentary

evidence relied by the prosecution, it would go to show that

complainant and accused No.1 jointly encroached portion of

forest land about 20 years back and they were cultivating the

land separately. Accused No.1 had given up cultivation of land

to complainant by accepting Rs.40,000/- as fixed by elders. On

CRL.RP No. 100154 of 2021

18.09.2004, accused No.2 picked up two coconuts from the

land of complainant and the same was objected. On

19.09.2004 at 4.45 p.m., all the accused formed themselves

into unlawful assembly came to the house of complainant and

started abusing the complainant in filthy language. Accused

No.3 assaulted complainant on his right forearm and other

accused assaulted the complainant with hands and stone, as a

result complainant sustained grievous injury. The prosecution

to prove the said allegations, mainly relied on the evidence of

complainant-PW.1 and that of his wife PW.2, so also evidence

of PWs.5 to 8. The said evidence is sought to be corroborated

by evidence of PW.11- doctor and wound certificate-Ex.P.4 with

that of investigating officers-PWs.9 and 10.

10. On careful reading of oral evidence of PWs.1 and 2,

it would go to show that their evidence is consistent with

regard to incident that took place on 19.09.2004. The

complainant questioned the accused with regard to taking

coconuts from his land and that led to incident in question.

PW.1 further deposed to the effect that accused No.3 caught

hold his shirt and assaulted by means of club. Accused No.2 by

means of stone assaulted over his waist and rest of the accused

CRL.RP No. 100154 of 2021

caught hold complainant and kicked on him. Due to which, he

sustained injuries. The said evidence is also certified by the

evidence of PWs-5 to 8 who are the neighbourers. The

evidence of all these witnesses is consistent with regard to the

injuries suffered by complainant due to assault of accused No.3

by means of club and accused No.2 by means of stone.

11. The medical evidence relied by prosecution of

Dr.Prashant Kamalakar Manakikar PW-11 would go to show

that he has examined the complainant at 7.15 p.m. and found

injuries noted in wound certificate Ex.P.4. The right forearm is

found with fracture and injury No.1 is opined to be grievous in

nature and rest of the injuries are simple in nature. The oral

evidence of PWs-1 and 5 to 8 with regard to the injuries

suffered by complainant in the incident that took place on

19.09.2004 is supported by the medical evidence of PW-11 and

the wound certificate Ex.P.4. Looking to the time gap between

the time of incident and the date and time of complainant being

examined by PW-11 in the Government Hospital, then it would

go to show that complainant suffered injury in the incident

itself as alleged in the complaint Ex.P.1. The defence has not

brought any material evidence on record during the cross-

CRL.RP No. 100154 of 2021

examination of the above referred witnesses that there was any

other occasion for the complainant to suffer injuries as noted in

the wound certificate Ex.P.4 in between the time of incident

and the time of his examination by PW-11.

12. The question is as to whether the injury No.1

recorded in the wound certificate Ex.P.4 is grievous in nature

which can attract penal action under Section 326 of IPC. The

trial Court as well as the first Appellate Court recorded finding

that non-examination of doctor who took X-ray and non

production of X-ray report, criminal liability under Section 225

or 226 could be said to be not established and as such, the

penal action in terms of Section 326 IPC is not attracted and

held that the offence falls within the ambit of Section 325 of

IPC. Reference is made by the trial Court to the judgment of

Hon'ble Apex Court in P. JOHNSON AND OTHERS VS. STATE

OF KERALA [(1998) CRL.LJ 3651].

13. Indisputably, the prosecution apart from examining

PW-1 - doctor who examined the complainant and issued

wound certificate Ex.P.4 has not examined the radiologist who

has given opinion on the basis of X-ray that injury No.1 caused

CRL.RP No. 100154 of 2021

to complainant as per wound certificate Ex.P.4 is grievous in

nature. Complainant was referred to Orthopedic Surgeon. The

wound certificate Ex.P.4 would go to show that on the basis of

Orthopedic report, injury No.1 is opined to be grievous in

nature. The prosecution has not produced the report of

Orthopedic Surgeon nor produced the X-ray or radiologist

report to substantiate the fact that complainant suffered

grievous injuries as noted at Sl.No.1 in the wound certificate

Ex.P.4. Therefore, the trial Court as well as the first Appellate

Court were justified in holding that offence under Section 326

of IPC is not proved.

14. The Courts below have held that the offence falls

under Section 325 of IPC. On careful perusal of the said

proviso, it would go to show that the legal requirement is that

"voluntarily causing grievous hurt" shall be punished with

imprisonment of either description for a term which may extend

to seven years, and shall also be liable to fine. When the

nature of grievous injury has not been established out of the

evidence placed on record as rightly held by trial Court as well

as first Appellate Court then the question of attracting the penal

action in terms of Section 325 also does not arise. However,

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CRL.RP No. 100154 of 2021

voluntarily causing hurt by dangerous weapons or means will

attract penal action in terms of Section 324 IPC. Therefore, in

my opinion, both the Courts below have committed error in

holding that prosecution has proved the offence under Section

325 IPC. On the other hand, the case will fall within the ambit

of Section 324 IPC. The above evidence on record would be

sufficient to attract penal action in terms of Section 324 IPC.

15. The evidence of PWs-1, 2 and 5 to 8 is in general

terms with regard to accused said to have abused complainant

in filthy language and administered threat to take away his life.

The said evidence is not consistent enough to draw any

inference that the said abusive words were intended to insult

with an intention to provoke to commit breach of public peace.

The dispute between complainant and accused is essentially

arising out of a property dispute which is civil in nature. The

mere reference of some abusive words in the complaint and

uncertified evidence of the witnesses cannot be itself sufficient

to attract penal action in terms of Section 504 IPC.

16. In this context of the matter, it is useful to refer

judgment of Hon'ble Apex Court in Fiona Shrikhande V/s.

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CRL.RP No. 100154 of 2021

State of Maharashtra, reported in AIR 2014 SC 957,

wherein it has been observed and held that:

           "Section 504 of       IPC comprises of the
      following ingredients viz., a)      Intentional insult,

b) the insult must be such as to give provocation to the persons 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 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 of IPC."

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CRL.RP No. 100154 of 2021

17. In the present case also, the dispute between the

complainant and accused occurred on account of property

dispute between them and there was no any intention which

would be sufficient to provoke the complainant to commit

breach of public peace. The evidence of prosecution

witnesses is not in conformity with the principles enunciated

in the aforesaid decision of Hon'ble Apex Court. It is alleged

that accused have addressed the complainant that within 24

hours they will cause to disappear complainant. If any such

expression was intended to be executed then it must be

supported by required evidence which would be sufficient

enough to draw any inference from the proved facts.

However, in the present case there is no any such material

evidence placed on record by the prosecution. The evidence

of prosecution witnesses is also not consistent in that regard.

Therefore, both the Courts below were not justified in

convicting the accused for the offence under Sections 504

and 506 of IPC.

18. Now, coming to the imposition of sentence, the

trial Court has sentenced accused Nos.1 to 4 for the offence

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CRL.RP No. 100154 of 2021

under Section 325 read with 34 IPC to undergo simple

imprisonment for three months and pay a fine of Rs.500/-.

In view of the reasons recorded above, it has been held that

the offence under Section 324 IPC is attracted. The offence

under Section 324 IPC is punishable with imprisonment of

either discretion for a term which may extend to 3 years or

with fine or with both. The discretion is left with the Court

looking to the facts and circumstances of the case to impose

any of the aforesaid offence.

19. In the present case, it is not in dispute that

complainant and accused No.1 were jointly cultivating the

encroached forest land. Accused No.1 thereafter gave up his

land in favour of complainant for Rs.40,000/- fixed by the

elders. Now, it appears that accused No.1 is demanding

back the said land and over the said issue, there is a dispute

between complainant and accused. Therefore, looking to the

facts and circumstances of the present case and the evidence

on record, in my opinion, if each of the accused is sentenced

to pay fine of Rs.3,000/- and in default to undergo simple

imprisonment for a period of 2 months is ordered will meet

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CRL.RP No. 100154 of 2021

the ends of justice. Consequently, proceed to pass the

following:

ORDER

Revision Petition filed by accused Nos.1 to 4 is hereby

partly allowed.

Accused Nos.1 to 4 are convicted for the offence

punishable under Section 324 IPC and sentenced to pay fine of

Rs.3,000/- each. In default, each of them shall undergo

imprisonment for a period of two months.

In exercise of powers under Section 357 of Cr.P.C., out of

the fine amount, Rs.11,000/- is ordered to be paid to the

injured-complainant PW-1 as compensation and Rs.1,000/- is

defrayed as expenses incurred by the prosecution.

The registry is directed to transmit the records with the

copy of this judgment to trial Court.

(Sd/-) JUDGE

VB-paragraphs 1 to 10, JM-paragraphs 11 till end