Karnataka High Court

Lankaiah vs State Of Karnataka on 27 November, 2023

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                                                 CRL.RP No. 476 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                        BEFORE

                        THE HON'BLE MR JUSTICE ANIL B KATTI

                    CRIMINAL REVISION PETITION NO.476 OF 2016

             BETWEEN:

             LANKAIAH
             S/O. NINGAIAH,
             AGED ABOUT 35 YEARS,
             R/O. MATHIKERE VILLAGE,
             AMBLE HOBLI,
             CHIKKAMAGALURU TALUK,
             CHIKKAMAGALURU PIN:571301.                   ... PETITIONER

             (BY MR. SACHIN B.S., ADVOCATE)

             AND:

             STATE OF KARNATAKA
             REPRESENTED BY
             CHIKMAGALORE RURAL P.S.
             REPRESENTED BY S.P.P.,
             HIGH COURT OF KARNATAKA,
Digitally    BANGALORE - 560001.                     ... RESPONDENT
signed by
SUMITHRA R
           (BY MRS. ANITHA GIRISH N., HCGP)
Location:
HIGH            THIS CRIMINAL REVISION PETITION IS FILED UNDER
COURT OF   SECTION 397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE
KARNATAKA JUDGMENT AND ORDER DATED 06.06.2014 IN C.C.NO.831/2011 ON
             THE FILE OF THE I ADDL. SR. CIVIL JUDGE AND JMFC,
             CHIKKAMAGALURU AND ALSO THE CONFIRMING IMPUGNED
             JUDGMENT AND ORDER DATED 27.01.2016 IN CRL.A.NO.78/2014
             ON THE FILE OF COURT OF THE PRINCIPAL SESSIONS JUDGE,
             CHIKKAMAGALURU, CONSEQUENTLY ALLOW THE CRL.RP.

                  THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
             THE COURT MADE THE FOLLOWING:
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                                             NC: 2023:KHC:42788
                                       CRL.RP No. 476 of 2016




                            ORDER

Revision Petitioner/accused feeling aggrieved by the

judgment of First Appellate Court on the file of

Prl.Sessions Judge at Chikkamagaluru in CrlA.No.78/2014,

dated 27.01.2016 confirming the judgment of Trial Court

on the file of I Addl.Senior Civil Judge and JMFC,

Chikkamagaluru in C.C.No.831/2011, dated 06.06.2014

preferred this revision petition.

2. Parties to the Revision Petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and on

perusal of Trial Court records including with the judgment

of both the Courts below the following points arise for

consideration:

1) Whether the impugned judgment of First Appellate Court under revision in confirming the judgment of Trial Court in convicting the

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accused for the offence punishable under Section 326 of IPC is perverse capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. On careful perusal of oral and documentary

evidence placed on record by the prosecution, it would go

to show that on 12.02.2009 at 7 p.m. in Mathikere village

of Chickamagaluru, in front of the house of complainant

PW.3 Mallaiah, accused has abused the complainant in

filthy language on questioning as to why he has filed the

complaint against him. Thereafter, the accused by means

of sickle (referred as chopper by both the Courts)

assaulted on the left side of the head, both the legs, left

hand joint and right forearm and broken the teeth, due to

which complainant suffered bleeding injuries. On these

allegations made in the complaint, the Investigating

Officer after completing investigation filed the charge

sheet against the accused.

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6. The prosecution to prove the charges levelled

against accused relied on the oral testimony of PWs.1 to 9

and documents were marked at Exs.P.1 to P.7 so also got

identified MOs.1 to 5. The Trial Court after appreciation of

evidence on record, convicted the accused for the offence

punishable under Section 326 of Indian Penal Code, 1860(

herein after for brevity referred to as "The IPC") and

acquitted for the offence punishable under Sections 504

and 506 of IPC. Accused challenged the judgment of said

conviction before the First Appellate Court and the First

Appellate Court after re-appreciation of the evidence

dismissed the appeal.

7. Learned counsel for the accused has argued that

the evidence of injured PW.3 Mallaiah and that of his wife

PW.4 Geetha cannot be relied in view of the fact that

independent eye witnesses PW.1 Rajegowda, and PW.5

Girish have not supported the case of prosecution. The

evidence of PW.6 Dr.C.K.Padmavathi is contrary to the

oral testimony of injured PW.3 Mallaiah. The prosecution

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out of the material evidence placed on record has failed to

establish that injured/complainant PW.3 Mallaiah has

suffered injury due to assault by means of sickle and there

is no evidence on record to prove that those injuries are

grievous in nature. Therefore, the Courts below were not

justified in convicting the accused for the offence

punishable under Section 326 of IPC.

8. Per contra, the learned High Court Government

Pleader has argued that oral testimony of injured PW.3

Mallaiah is duly supported by medical evidence of PW.6

Dr.C.K.Padmavathi and the wound certificate Ex.P.6

speaks to the effect that out of them 6 injuries suffered by

injured PW.3 Mallaiah. Injury Nos.1 and 6 are opined to be

grievous in nature and remaining injuries are simple in

nature. The said evidence is duly corroborated by the

evidence of PW.7 N.R.Krishnamurthi who has registered

the case Ex.P.7 on the basis of above complaint Ex.P.3.

PW.8 Ramachandra Naik has carried out the investigation

and filed the charge sheet. The Courts below have rightly

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appreciated the evidence on record and justified in

convicting the accused for the offence punishable under

Section 326 of IPC and the same does not call for any

interference by this Court.

9. On careful perusal of the evidence of PW.3

Mallaiah injured complainant in this case, it would go to

show that on 12.02.2009 at 7 p.m. while he was

proceeding with ox to tie them in cattle shed, at that time

accused on account of previous enmity and complainant is

filing complaint by means of sickle assaulted over his left

and back portion of his head, neck, left hand, lips, over

chest and right shoulder, due to which he suffered

bleeding injuries. At that time CW.4 Rajegowda and CW.5

Girish came to the spot on hearing the hue and cry of his

wife Geetha, then shifted injured/complainant to the

hospital. It is about 10 p.m. Police visited to the said

hospital before whom he has filed oral complaint which

was reduced in writing Ex.P.7 and identified his signature

Ex.P.3(a).

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10. PW.4 Geetha is the wife of injured PW.3 Mallaiah

and she has deposed to the effect that she was in the

house on 12.02.2009 at 7 p.m., accused on account of

previous enmity came with sickle and assaulted on her

husband over neck, mouth, back, left hand finger and

right hand shoulder. On hearing the hue and cry of her

husband she immediately came to the spot. Further CW.3

Rajegowda, CW.5 Girish also came to the spot, then on

seeing her injured husband PW.3 Mallaiah they shifted him

to the hospital and she identifies MO.1 sickle used by

accused for assaulting complainant. The two independent

witnesses PW.1 Rajegowda and PW.5 Girish have not

supported the case of prosecution. The place of incident

infront of the house of complainant and the accused was

residing infront of the house of complainant is not

seriously disputed by the defence.

11. The place of incident is infront of the house of the

complainant which is evident from the spot panchanama

Ex.P.2 which was shown by PW.4 Geetha. PW.2

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Dharmegowda is the panch witness to the spot

panchanama Ex.P.2 and has spoken about the Police

having prepared the panchanama in his presence Ex.P.2

and he signed on the panchanama Ex.P.2(a), so also he

identifies MO.1, the blood stains were also found at the

place of incident. PW.8 Ramachandra Naik has spoken

about preparation of panchanama of the place of incident

shown by PW.4 Geetha in presence of PW.2 and CW.6

Javaraiah and seized sickle MO.1. The defence though has

cross-examined PW.2 Dharmegowda and PW.8

Ramachandra Naik, nothing worth material has been

brought on record to discredit their evidence regarding the

preparation of the spot panchanama Ex.P.2 and the

recovery of MO.1. Thus, by the said evidence on record,

prosecution has proved the place of incident and the

recovery of MO.1.

12. The evidence of PW.6 Dr.C.K.Padmavathi, would

go to show that on 12.02.2009, injured PW.3 Mallaiah was

brought by his brother Thimmaiah with the history of

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assault by accused and examining the injured at 8 p.m on

examination of the injured PW.3 Mallaiah found the

following injuries:

       1) Cut    lacerated    wound       on    the    left

             parietal bone.

       2) Cut     lacerated       wound        over    left

             forearm.

3) Cut lacerated wound over left side of

the neck.

4) Cut lacerated wound over left angle of

mouth.

5) Cut lacerated wound over the base of

right ring finger.

6) As per the C.T scan report there was a

fracture of left parietal bone with

haemorrhagic contusion in right

superior parietal lobe and as per the

Dentist opinion, there was fracture

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            of   left   lower    central   incisor   and

            canine.

PW.6 Dr.C.K.Padmavathi is of the opinion that injury

Nos.1 and 6 are grievous in nature and injury Nos.2 and 5

are simple in nature.

13. Looking to the time of incident that took place at

7 p.m. on 12.02.2009 and injured PW.3 Mallaiah is being

examined by PW.6 Dr.C.K.Padmavathi on 12.02.2009 at

8 p.m., coupled with the evidence of injured PW.3

Mallaiah, it would go to show that PW.3 Mallaiah suffered

with the injuries in the incident as claimed by the

prosecution due to the assault of accused by means of

sickle, as noted in the wound certificate Ex.P.6. The

defence has not elicited any material evidence on record in

the cross-examination of PW.3 Mallaiah and PW.4 Geetha

that there was any other possibility of PW.3 Mallaiah

suffering injury than in the incident claimed by the

prosecution. There is absolutely no any valid reason to

disbelieve the evidence of PW.3 Mallaiah injured witness of

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this case and his wife PW.4 Geetha, so also PW.6

Dr.C.K.Padmavathi. The question is as to whether the

offence punishable under Section 326 of IPC is attracted.

In view of the nature of injuries suffered by PW.3 Mallaiah.

The prosecution to prove the offence punishable under

Section 326 of IPC must necessarily prove.

1) Voluntarily causing hurt.

2) Hurt caused must be grievous hurt.

3) The grievous hurt have been caused by

dangerous weapons or means.

14. The grievous hurt must be covered under any of

the categories falling in terms of Section 320 of IPC. In the

present case the prosecution claims that, since injury

Nos.1 and 6 shown in wound certificate Ex.P.6 are opined

to be grievous in nature and same falls within the category

of Sl.No.7 of Section 320 of IPC, that fracture or

dislocation of the bone or tooth. The learned High Court

Government Pleader in support of her contention relied on

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the judgment of Hon'ble Apex Court in Prabhu Vs. State

of Madhya Pradesh in Crl.A.No.1956/2008, in the said

case before the Hon'ble Apex Court the deceased has

suffered 14 external injuries and injury Nos.13 and 14

were incised wounds falling within the category of Section

320 of IPC has confirmed the judgment of Hon'ble Madhya

Pradesh High Court in confirming the judgment of Trial

Court for the offence punishable under Section 326 of IPC.

Learned High Court Government Pleader also further relies

on the judgment of Hon'ble Apex Court in Bhagwan

Narayan Gaikwad Vs. The State Of Maharashtra And

Others in Crl.A.No.1039/2021 in the said case before the

Hon'ble Apex Court, it was found that there was a pre-

mediated attempt of the appellant, he assaulted the victim

with sword and chopped of his right leg below the knee

and right forearm below the elbow and brutality is

apparent on the face of record the injured victim has been

crippled for life and pursuing his daily chores with

prosthetic arm and leg and has lost vital organs of the

body and become permanently disabled. Under these

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circumstances it was held that the offence punishable

under Section 326 is made out. The learned High Court

Government Pleader lastly relied on another judgment of

First Appellate Court in Omanakkuttan and others Vs.

State of Kerala in Crl.A.No.800/2020, wherein only the

appeal was admitted for hearing on the quantum of

sentence not on merits of the case. The Hon'ble Apex

Court after hearing both sides and in view of the facts of

the said case has modified the sentence for the offence

punishable under Section 326 of IPC.

15. In the present case the opinion of PW.6

Dr.C.K.Padmavathi that injury Nos.1 and 6 shown in the

wound certificate Ex.P.6 are grievous in nature is based on

the CT scan report and also the dentist opinion. The

prosecution has not produced any CT scan report of Pooja

Health Centre showing that left parietal bone was having

fracture. The opinion of Dentist is also not placed on

record. The prosecution has also not examined the

respective doctor who has taken X-ray and given opinion

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nor the CT scan report or the dentist opinion is produced

and marked in this case. In this context of the matter it is

profitable to refer the judgment of Hon'ble Kerala High

Court in P.Johnson and others Vs. State of Kerala,

reported in 1998 Criminal Law Journal 3651, wherein it

has been observed and held that:

" Even regarding the conviction brought under Section 326, there is no legal evidence to fix the criminal liability. Section 320, I.P.C. defines grievous hurt. Fracture comes under this Section. PW-7 doctor who examined PW-12 in the medical college hospital, Calicut issued Ext.P-6 discharge certificate which goes to show that PW-12 sustained grievous hurt. PW-7 in this context would depose that he gave Ext.P-6 certificate on the basis of X-ray report and that report was not produced and the doctor who took X-ray was not examined. Non- production of the X-ray report and non examination of the doctor who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326, I.P.C.

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is not established. This flaw is also a stronger one shaking the case of the prosecution".

It is also profitable to refer the Division Bench

Judgment of this Court in State of Karnataka Vs.

Sheenappa Gowda and others reported in 2011(4) in

KCCR 2759, wherein it has been observed and held as

under:

" It is now well settled that 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, the same would not dispense with the production of 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". (emphasis supplied by me).

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In view of the principles enunciated in both the

aforementioned judgments, in the absence of X-ray report

or the Doctor who has given opinion has not been

examined cannot be held for the offence punishable under

Section 326 of IPC is made out. In the aforesaid Division

Bench judgment of this Court referred (supra) when the

injuries suffered by PW.3 Mallaiah is proved by the

evidence on record by virtue of PW.3 Mallaiah and PW.6

Dr.C.K.Padmavathi the same would follow within the ambit

of 324 of IPC.

16. The Courts below without taking into

consideration the proof of nature of grievous injury and

the hurt falling within the ambit of 320 of IPC only on the

basis of evidence of PW.6 Dr.C.K.Padmavathi proceeded to

hold that the prosecution has proved the offence

punishable under Section 326 of IPC. In fact PW.6

Dr.C.K.Padmavathi opinion of injury Nos.1 and 6 is based

on the CT scan report and the dentist opinion. However,

that basic documents has not been produced by the

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prosecution. Therefore, the findings of the Trial Court

holding that the accused has committed the offence

punishable under Section 326 of IPC which is confirmed by

the First Appellate Court cannot be legally sustained. On

the contrary the evidence as referred above falls within

ambit of 324 of IPC.

17. The offence punishable under Section 324 of IPC

empower the Courts to impose punishment which may

extend to three years or with fine or with both, therefore

the Courts will have to exercise its judicial discretion in

imposing the punishment for the proved offence looking to

the facts and circumstances of the case. In the present

case the incident in question has occurred due to accused

questioning injured PW.3 Mallaiah of filling complaint.

Looking to the nature of evidence produced by the

prosecution in the form of evidence of injured PW.3

Mallaiah and that of medical officer Dr.C.K.Padmavathi and

the other attending circumstances, if accused is sentenced

to undergo simple imprisonment for 3 months and to pay

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a fine of Rs.2,000/- and in default of payment of fine

accused to undergo simple imprisonment for 3 months

with the compensation awarded by the Trial Court, which

is confirmed by the First Appellate Court is maintained,

then it will meet the ends of justice. Consequently,

proceed to pass the following:

ORDER

The Revision Petition filed by the Revision

Petitioner/accused is hereby partly allowed.

The judgment of the First Appellate Court on the file

of Prl.Sessions judge, Chickamagaluru in Crl.A.No.78/2014,

dated 27.01.2016 in confirming the judgment of Trial

Court on the file of I Addl.Senior Civil Judge and JMFC

Chickamagaluru in C.C.No.831/2011, dated 06.06.2014 is

ordered to be modified as under:

Accused is convicted for the offence punishable under

Section 324 of IPC and sentenced to undergo simple

imprisonment for 3 months and pay a fine of Rs.2,000/- in

default of payment of fine shall undergo simple

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imprisonment for 3 months for the offence punishable

under Section 324 of IPC.

Compensation awarded by the Trial Court to the

injured PW.3 Mallaiah which is confirmed by the First

Appellate Court is maintained.

The accused is acquitted for the offence punishable

under Section 326 of IPC.

The bail bond of the accused and that of his surety

stands discharged.

Accused is entitled for the benefit of set-off under

Section 428 of Cr.P.C. for the period having undergone by

him in judicial custody, if any, in the matter.