Karnataka High Court
Sri Shiva @ Shivanna vs State By Srirangapatna Police on 18 April, 2024
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CRL.RP No. 1309 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL REVISION PETITION NO. 1309 OF 2017
BETWEEN:
1. SRI SHIVA @ SHIVANNA
S/O SUBBANNA @ SUBBEGOWDA
R/AT ACHHAPPANAKOPPALU VILLAGE,
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571438
...PETITIONER
(BY SRI. PADMAVATHI N .,ADVOCATE)
AND:
1. STATE BY SRIRANGAPATNA POLICE
POLICE, MANDYA DISTRICT-571438
REPRESENTED BY PUBLIC PROSECUTOR,
Digitally signed HIGH COURT
by D HEMA BANGALORE-1
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. M R PATIL.,HCGP)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER DATED 07.02.2017 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND J.M.F.C., SRIRANGAPATNA IN
C.C.NO.23/2015 AND CONFIRMED BY THE ORDER DATED
04.10.2017 III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA (SITTING AT SRIRANGAPATNA) IN
CRL.A.NO.5009/2017 FOR THE OFFENCES P/U/S 326 AND 504
OF IPC IN CR.NO.10/2015 SRIRANGAPATNA POLICE, MANDYA
DISTRICT.
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CRL.RP No. 1309 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Appellant in Crl.A.No.5009/2017 on the file of III
Additional District and Sessions Court, Mandya setting at
Srirangapatna (for short 'appellate Court') has filed this revision
petition calling in question correctness of judgment passed in
the said case dated 04.10.2017 dismissing the appeal.
2. The brief facts of the case of the prosecution are as
under:
I refer the parties as their rank before the Trial Court.
The accused and PW.2-victim are the residents of
Achapanakopplu village of Srirangapatna Taluk. On 03.01.2015
at about 2:00pm PW.2 went to the petty of Basavaraju situated
in Achapanakopplu to buy beedis. At that time, accused came
to the said shop and started abusing PW.2 in filthy language
with an intention to insult him and thereafter, took a piece of
brick (MO.1) and assaulted PW.2 on his head and face, as a
result of which, PW.2 sustained grevious injuries i.e., (i)
fracture of left parietal bone (ii) fracture of both maxillary
sinuses. After the incident, he was shifted to the Government
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hospital at Srirangapattana by his wife PW.3-Smt.
Devamma.K.T. In the Government hospital he was given
preliminary treatment and for higher treatment, he was shifted
to JSS hospital, Mysore. PW.2 lodged the complaint in this
regard as per Ex.P.2. On the basis of the said complaint, ASI
of Srirangapattana Police Station registered a case in
Crime.No.10/2015 for the offences punishable under Sections
504 and 324 of IPC.
3. The investigating officer, after completion of the
investigation, filed charge against the accused before the Court
of Principal Senior Civil Judge and J.M.F.C., Srirangapatna (for
short 'trial court') for the offences punishable under Sections
504 and 326 of IPC. The Trial Court took cognizance and
registered the case as C.C.No.23/1005 and secured the
presence of the accused. The Trial Court, after hearing both the
parties, framed charges for the offences punishable under
Sections 504 and 326 of IPC. The accused pleaded not guilty.
4. Prosecution to prove its case has examined PWs.1 to
10 and got marked Exs.P1 to 10 and one for material object as
MO.1 and closed its evidence. Thereafter, the Trial Court
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examined accused under Section 313 of Cr.P.C. The accused
did not lead defence evidence.
5. The Trial Court after hearing both the parties and
appreciating the materials available on record, convicted the
accused of the offences punishable under Sections 504 and 326
of IPC. The Trial Court after hearing the accused as well as the
prosecution imposed following sentences:
(i) Accused is ordered to undergo rigorous
imprisonment for a period of six months and to pay a
fine of Rs.2,000/- for the offence punishable under
Section 504 of IPC. In default of payment of fine
amount the accused is ordered to undergo rigorous
imprisonment for a period of one month.
(ii) Accused is ordered to undergo rigorous
imprisonment for a period of two years and to pay a
fine of Rs.8,000/- for the offence punishable under
Section 326 of IPC. In default of payment of fine
amount accused is ordered to undergo rigorous
imprisonment for a period of three months.
6. Being aggrieved by the said conviction and sentence,
the accused preferred an appeal in Crl.A.No.5009/2017 before
appellate Court. The appellate after hearing both the side
parties and re-appreciating the evidence available on record,
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dismissed the appeal by the impugned judgment dated
04.10.2017. The accused/appellant has challenged the same in
the present Revision petition under Section 397 of Cr.P.C.
7. Heard learned counsel for the revision petitioner as well
as the learned High Court Government Pleader for respondent-
State.
8. Learned counsel for the revision petitioner submits
that the medical reports at Ex.P.8 discloses that the victim was
under influence of alcohol. Defence of the accused is that due
to intoxication, he fell down and sustained injuries and she
further submitted that MO.1 is not dangerous weapons to cause
grievous hurt. Therefore, Section 326 of IPC would not be
applicable to the allegation made in the case. Both the Court
below not properly appreciated evidence. No independent
witnesses were examined. As per case of prosecution, PW.3 is
not eye witness and hearsay witness but during course of
evidence she has stated that she witnessed incident. Hence,
her evidence is not reliable. These facts were not considered
by the Court below and hence, prayed to set aside impugned
judgment.
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9. The following question arises for determination:
" Whether findings of appellate Court is illegal,
absurd and erroneous and interference by this Court
is required".
10. The Trial Court as well as the First Appellate Court
discussed in detail the evidence lead by the prosecution. PW.2
is the victim of the incident and he has narrated in detail about
the facts of the case and stated that the accused assaulted him
with MO.1 on his head and caused grievous injuries. He took
treatment in the Government hospital, Srirangapattana as well
as the JSS hospital at Mysore. In his cross-examination by the
accused, he denied the suggestions of accused. It was suggested
that he fell down while climbing coconut trees and sustained the
said injuries. He denied the said suggestions. The said
suggestion is not probable, as held by both the Courts below.
PW.2 has sustained fracture of left parietal bone and both
maxillary bones. Considering suggestions to PWs.2 and 8, that
PW.2 fell down due to intoxication and sustained injuries is not
probable. If he had sustained fracture of left parietal bone as
well as the maxillary bone, then it might be probable. But he
sustained fracture of both side fracture of maxillary bone. It
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might not be possible that at the same time hard surface would
come in contact with both side of maxillary bone. Hence,
suggestion is not probable. In the cross examination of PWs.3
and 4 this facts were not elucidated by the accused. Hence, it is
not acceptable.
11. PWs.1, 3 and 4 are eye witnesses to the incident.
PW.1 has turned hostile to the case of prosecution and even he
denied his presence at the spot. Hence, his evidence is not
helpful to the case of prosecution.
12. Evidence of PW.2 regarding injury is corroborated by
PWs.7 and 8 who had treated PW.2 in Government Hospital,
Srirangapatna as well as JSS Hospital, Mysore. PW.8 also stated
that looking to the condition of injuries, he advised PW.2 to go
to higher medical centre and PW.2 had taken treatment at JSS
Hospital, Mysore. PW.7 has stated about injuries of PW.2 and
treatment given to him. PW.8 further stated that he perused
discharge summary given by JSS Hospital and opined that PW.2
has sustained fractures. According to PWs.7 and 8, PW.2 had
sustained three fractures i.e., left parietal bone and fracture of
both sides of maxillary sinuses.
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13. Evidence of PW.2 is corroborated by PWs.3 and 4,
who are eye witnesses and their evidence is also accepted by
both the Courts below. There are no reasons to discard the said
evidence.
14. PWs.8 and 9 are investigating officers and they have
narrated investigation made by them.
Both the Courts below appreciated the evidence thoroughly
and Trial Court has convicted accused and same is confirmed by
the appellate Courts. The grounds taken in this revision were
also taken before Courts below. Both the Courts below
appreciating and re-appreciating the evidence of prosecution
witnesses and also considering the defence of the accused have
given concurrent findings. There is no error in the said finding
to be interfered by this Court.
Merely, there is reference in Ex.P.8 that "Breath Smells of
Alcohol" does not mean that he was highly intoxicated and could
not control himself and witnesses and fell down and sustained
injuries. It is not endorsement in Ex.P.8 that accused was under
influence of alcohol.
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15. In the cross examination of PWs.7 and 8 there is no
much of cross-examination regarding status of PW.2. Whether
PW.2 was able to control himself or not was not brought out in
the cross-examination of eye witnesses i.e., PWs.3 and 4.
Hence merely, breath of PW.2 was smelling alcohol does not
mean that PW.2 was under influence of alcohol and he fell down
and sustained injuries due to the same is not acceptable.
16. The further contention of learned counsel for the
revision petitioner that the piece of brick is not an instrument so
as to cause grievous injuries and therefore, does not attract the
offences punishable under Section 326 of IPC, is also not
tenable. Force used while assaulting PW.2 by the accused is
equally important. MO.1 is hard substance and accused was
middle aged person. He might have used all his force while
assaulting on PW.2 and caused injury. Hence, there was
possibility of causing such injury.
17. Consequence of the assault has to be considered; as
per evidence of PWs.7 and 8, PW.2 had sustained fractures and
they opined that by assaulting with MO.1 such injuries could be
possible. Therefore, the contention of the revision petitioner is
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that he assaulting with MO.1 grievous injuries could not be
possible is not acceptable.
There is no admitted enmity between the victim and
accused. Therefore, there is no question of filing a false
complaint against him. Hence, the said submission is not
tenable.
18. Learned counsel for the revision petitioner also
submits that the sentence imposed by the Courts below are
disproportionate to the offence committed by the accused. The
said submission is not tenable. The gravity of injuries could be
seen in Ex.P.7. The offence punishable under Section 326 of IPC
is punishable with imprisonment for life or imprisonment of
either description for a term, which may extend to ten years and
shall also be liable to fine. The Trial Court considering the
fracture caused by the accused, out of one was to vital part of
body i.e., left parietal region, imposed the penalty. It is not
disproportionate. Therefore, the said contention is also not
tenable.
19. Appreciating the oral and documentary evidence and
the material placed on record, the Court below convicted and
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sentenced the accused for the said offences. The Appellate
Court on re-appreciating the evidence on record, confirmed the
conviction and sentence passed by the Trial Court.
20. It is a settled principle of law that under Section 397
of Cr.P.C., the revision Court shall not re-appreciate the
evidence. The impugned judgment/order can be inferred only if
any illegality or error committed by the Courts below in passing
the judgments. Considering the judgments passed by both the
Courts below, I do not find any reason to interfere with the
findings of the Trial Court as well as the Appellate Court.
Therefore, the revision petition is devoid of merits. Accordingly,
I answer aforesaid question against the petitioner and pass the
following:
ORDER
i) The revision petition is dismissed.
ii) The order passed by the III Additional District
and Sessions Court, Mandya in
Crl.A.No.5009/2017 dated 04.10.2017 is
confirmed.
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iii) Forty five (45) days time is granted to the
accused to surrender before the Trial Court to
undergo sentence.
iv) Bail bond executed by the accused stands
cancelled.
v) Registry is directed to send back the Trial Court
Records along with the copy of the judgment
forthwith.
Sd/-
JUDGE
PHM
