Karnataka High Court

Mahesh S/O Gangadhar Belliwale vs The State Of Karnataka on 14 June, 2023

Bench: Anil B Katti

                                                      -1-
                                                            CRL.RP No. 2252 of 2013



                                     IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH


                                  DATED THIS THE 14TH DAY OF JUNE, 2023

                                                  BEFORE

                                   THE HON'BLE MR JUSTICE ANIL B KATTI
                                CRIMINAL REVISION PETITION NO. 2252 OF 2013
                         BETWEEN:

                         MAHESH S/O GANGADHAR BELLIWALE
                         AGE: 35 YRS, OCC: PRIVATE WORK
                         R/O: MARATHA COLONY 8TH CROSS
                         DIST: DHARWAD
                                                                      ...PETITIONER

                         (BY SHRI. VASANT G. HOLEYANNAVAR, ADV.)
        Digitally

J
        signed by J
        MAMATHA          AND:
MAMATHA Date:
        2023.06.15
        10:51:40 -0700
                         THE STATE OF KARNATAKA
                         REPRESENTED BY SPP, CIRCUIT BENCH
                         HIGH COURT, DHARWAD,
                         PSI DHARWAD SUB-URBAN POLICE STATION,
                         DHARWAD
                                                                     ...RESPONDENT

                         (BY SHRI. M.H. PATIL, AGA)

                                                      ***

                              THIS CRIMINAL REVISION PETITION FILED U/S 397 R/W
                         401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
                         THE SENTENCE ORDER DATED 11/03/2013 PASSED BY THE
                         PRL.DIST AND SESSIOINS JUDGE, DHARWAD IN CRIMINAL
                         APPEAL NO.20/2010 CONFIRMING THE JUDGMENT AND ORDER
                         DATED 10/02/2010 PASSED BY THE PRL. CIVIL JUDGE (JR.DN)
                         AND PRL. JMFC COURT, DHARWAD IN CC.NO.546/2008.
                                   -2-
                                           CRL.RP No. 2252 of 2013



    THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 29.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:


                                ORDER

Revision petitioner-accused feeling aggrieved by

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

Sessions Judge, Dharwad in Crl.A.No.20/2010, dated

11.3.2013, preferred this revision petition.

2. Parties to the revision petition are referred with

their ranks as assigned before 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

25-09-2008 at 8.05 p.m. at Maratha colony Dharwad, while

CWs.1 and 2 were proceeding by walk on road, at that time,

accused picked quarrel with CW.1, who is divorced wife of

accused, further assaulted her with iron rod on her right knee,

thigh, shoulder and caused injuries. When CW.4 came to rescue

CW.1, accused also assaulted on her by iron rod on right knee

and left forearm, thereby caused grievous injuries. Accused

abused CWs.1 and 4 in filthy language and administered threat

CRL.RP No. 2252 of 2013

to take away their life. On these allegations made in the

complaint, investigation was carried out and investigating officer

filed charge sheet.

4. Accused was secured before the trial Court through

process of law. The trial Court on being prima facie satisfied,

framed charges against the accused for the offences punishable

under Sections 324, 504, 506, 326, 506 of I.P.C. Accused

pleaded not guilty and claimed to be tried. The prosecution to

prove the allegations made against accused relied on the

evidence of PWs-1 to 7 and documents at Exs.P.1 to 9, so also

got identified M.O.1.

5. On closure of the prosecution evidence, statement

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

Accused denied all the incriminating material evidence

appearing against him and claimed that false case is filed. The

trial Court after appreciation of evidence on record convicted the

accused for the aforesaid offences and imposed sentence as per

order of sentence.

6. Accused challenged the said judgment of conviction

and order of sentence before first Appellate Court in

Crl.A.No.20/2010. The first Appellate Court on re-appreciation

CRL.RP No. 2252 of 2013

of evidence on record by judgment dated 11.3.2013 dismissed

the appeal and confirmed the judgment of conviction and order

of sentence passed by trial Court.

7. Revision petitioner/accused challenged the said

judgment of first Appellate Court which has confirmed the

judgment of conviction and order of sentence passed by trial

Court contending that both the Courts below have not properly

appreciated the evidence on record in proper and perspective

manner. The independent witnesses PWs.3 to 5 have not

supported the case of prosecution and committed serious error

only in relying on the evidence of PWs.1 and 2 in holding that

accused is guilty of charges levelled against him. The evidence

of doctor-PW.6 is insufficient to prove grievous nature of injury

to PW.2 and in certifying evidence of interested witnesses could

not have been relied by both courts below. The both courts

below have not considered extension of benefit of P.O. Act. The

approach and appreciation of oral and documentary evidence by

both the Courts below and finding recorded cannot be legally

sustained.

8. In response to notice, learned High Court

Government Pleader has appeared for respondent/State.

CRL.RP No. 2252 of 2013

9. Heard the arguments of both sides.

10. On careful perusal of oral and documentary

evidence placed on record by the prosecution, it would go to

show that incident in question took place on 25/9/2008 at 8.05

p.m. at Maratha colony Dharwad, while PWs.1 and 2 were

proceeding by walk in front of Mallsajjan Vyayam Shala to bring

back daughter of PW.1 from tuition centre. Accused picked up

quarrel with PW.1, who is divorced wife of accused, further

assaulted her with iron rod on her right knee, thigh, shoulder

and caused injuries. When PW.2 came to rescue her daughter-

PW.1, accused also assaulted her by iron rod on right knee and

left forearm and as a result both of them have sustained

grievous injuries. The material witnesses relied by the

prosecution to prove the charges levelled against the accused

are PW.1-Smita C Patil, who is complainant and filed complaint

Ex.P.1 and PW-2-mother of complainant. The said evidence is

sought to be corroborated by evidence of doctor-PW.6 and

wound certificates-Exs.P.5 and 6, x-ray report-Ex.P.7 with that

of investigating officer PW.7.

11. The fact that PW.1-Smita C Patil is divorced wife of

accused and she is residing with daughter at her mother's house

CRL.RP No. 2252 of 2013

is not in dispute. It is true that independent witnesses PWs.3 to

5, who are passers of the road have not supported the case of

prosecution. The mere fact that independent witnesses have not

supported the case of prosecution, further PW.1 is daughter and

PW.2 is the mother of P.W.1 by itself would not to discard the

evidence of PWs. 1 and 2. The only requirement of law is that

their evidence will have to be tested with every care and caution

by taking into consideration other material evidence placed on

record by prosecution.

12. PWs.1 and 2 during the course of their evidence

have deposed to the effect that on 25.9.2008 at about 8.05

p.m. at Maratha colony in front of Mallsajjan Vyayam Shala,

they were proceeding on road to bring daughter of PW.1 from

tuition centre. At that time, accused picked up quarrel with

PW.1 and assaulted by iron rod on her right knee and left

shoulder and caused injuries. When PW.2 went to rescue her

daughter, accused assaulted on her by iron rod on the right

knee and left forearm and thereby caused grievous injuries. The

evidence of PWs.1 and 2 is consistent regarding the manner in

which the incident took place and they suffered injury due to

assault of accused by means of iron rod. The defence of accused

CRL.RP No. 2252 of 2013

is that only in order to harass the accused, since she has

obtained divorce, filed false complaint.

13. The oral evidence of PW.6 would go to show that

complainant PW.1 has suffered following injuries as per the

wound certificate-Ex.P.5.

1. Contusion over right leg middle half about 3cm x 3cm

2. Contusion over left knee measuring 2cm x 2cm

3. Contusion over left thigh measuring 2cm x 2cm

4. Contusion over left shoulder measuring 1cm x 1cm

PW.6-Dr.Ashok has examined PW.1 on the same day at 10 p.m.

and all the injuries opined to be simple in nature. The injury can

be caused by blunt object and age of the injury is 6 to 8 hours.

14. On examination of PW.2-Madhubala C Patil, as per

wound certificate-Ex.P.6 found the following injuries:

1. Contusion about 2cm x 2cm over left wrist

2. Contusion over right ankle about 2cm X 2cm.

3. Contusion about 2cm x 2cm over left side of

submandibala region.

On the basis of Ex.P.6, injury No.1 is opined to be grievous in

nature and injury Nos. 2 and 3 are simple in nature. PW.6 has

CRL.RP No. 2252 of 2013

opined that if a person is assaulted by means of iron rod then

injuries found in wound certificate EXs.P.5 and 6 can be caused.

Looking to the time of incident and time of examination, it

would go to show that they suffered injuries recorded in the

wound certificates-EXs.P.5 and 6 due to assault of accused.

Accused has not brought any material evidence on record during

the cross examination of PWs.1, 2 and 6 that PWs.1 and 2

having suffered injuries other than the incident claimed by the

prosecution. The oral testimony of PWs. 1 and 2 regarding

injuries suffered by them in the incident is duly corroborated by

evidence of PW.6-Dr.Ashok, who found the injuries referred in

the wound certificates Exs.P.5 and 6. The final opinion recorded

by PW.6 having injury suffered by PW.2 is based on X-ray film

Ex.P.7. Therefore, from the said evidence on record, it is

evident that P.W.2 has suffered grievous injury due to assault

by accused by means of iron rod. When that being the evidence

on record, to prove the injury suffered by PWs.1 and 2, defence

of the accused that he was falsely implicated in this case, since

PW.1 obtained divorce cannot be legally sustained. There are

absolutely no valid grounds to discard oral testimony of PWs. 1

and 2 to hold that they suffered injury in the incident due to

assault of accused by means of iron rod. When the said

CRL.RP No. 2252 of 2013

evidence is duly corroborated by evidence of PW.6-Dr.Ashok

and wound certificates Exs.P.5 and 6 with x-ray report-Ex.P.7.

Courts below have rightly appreciated evidence on record and

justified in recording the guilt of the accused for the offences

alleged against him.

15. Now coming to the question of imposition of

sentence, the trial Court convicted the accused to undergo

simple imprisonment for two months and to pay fine of Rs.500/-

and in default to undergo simple imprisonment for one month

for the offence punishable under Section 324 of IPC. Accused is

further sentenced to undergo rigours imprisonment for one year

six months and shall also pay fine of Rs.2,000/- and in default

shall undergo simple imprisonment for Three months for the

offence punishable under Section 326 of the IPC. The accused

was further sentenced to undergo simple imprisonment for

three months and shall also pay a fine of Rs.1,000/- and in

default shall undergo simple imprisonment for two months for

the offence punishable under Section 506 of the IPC.

Substantive sentences shall run concurrently and benefit of

Section 428 of Cr.P.C. is extended. The First Appellate Court

affirmed the said judgment of conviction and order of sentence.

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CRL.RP No. 2252 of 2013

16. Learned counsel for revision petitioner submits that

the imposition of sentence for one year six months for the

offence under Section 326 of I.P.C. is too harsh in the given set

of facts and circumstances of the case. The accused was

arrested on 26.09.2008 and he was released on bail on

27.10.2008. Thereafter, accused remained in custody from

27.1.2010 and 31.3.2010 for total period of 96 days.

17. Learned counsel for revision petitioner submitted

that period undergone by accused in judicial custody for a

period of 96 days can be awarded to meet the ends of justice

for the offence punishable under Section 326 of I.P.C. and in

support of such contentions relied on the following judgments:

1. Criminal Appeal No. 644/2015, Vinay & Ors v/s State

Of Karnataka & Anr, dated 16 April, 2015;

2. Criminal Appeal No. 2333/2005, Swamy @ Somanna

v/s the State of Karnataka, dated 20 July, 2012;

3. Criminal Appeal No. 72-73/2003, George Pon Paul v/s

Kanagalet & Ors, dated 29 April, 2009;

4. Criminal Appeal No. 2696/2009 Ibrahimsab Husensab

v/s the State of Karnataka, dated 29 January, 2014.

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CRL.RP No. 2252 of 2013

18. I have carefully gone through the principles

enunciated in the aforesaid judgments. The Honb'le Apex Court

as well as this Court looking to the facts and circumstances of

the above cases exercised judicial discretion and modified the

order of sentence for the offence punishable under Section 326

of I.P.C. for the period spent by accused in judicial custody.

19. In the present case, PW.1 complainant is divorced

wife of accused, PW.1 along with her daughter after getting

divorce residing in her mother's house. There is every possibility

of accused being unhappy of PW.1 obtaining divorce and he

must have been deprived of love and affection of his daughter,

who is admittedly in custody of PW.1. The incident in question

took place in a spur of moment. Therefore, looking to the facts

and circumstances of the case, in my opinion, it is a fit case to

reduce sentence for a period of 96 days, which accused has

already spent in judicial custody for the offence punishable

under Section 326 of I.P.C. by paying the fine amount as

ordered by the trial Court with default sentence. Consequently,