Karnataka High Court

State Of Karnataka vs Maniraj S/O. Nagaraj Nayak on 1 February, 2024

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                                                     NC: 2024:KHC-D:2310
                                                     CRL.A No. 100207 of 2016




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                          DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                            BEFORE
                            THE HON'BLE MR JUSTICE RAJESH RAI K
                          CRIMINAL APPEAL NO. 100207 OF 2016 (A)


                   BETWEEN:

                   STATE OF KARNATAKA,
                   REPRESENTED BY THE
                   SIRSI NEW MARKET POLICE STATION, SIRSI,
                   KARWAR DISTRICT
                   THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
                   ADVOCATE GENERAL OFFICE,
                   HIGH COURT OF KARNATAKA, DHARWAD BENCH.
                                                            ...APPELLANT

                   (BY SRI. M.B. GUNDAWADE, ADDL SPP.)

                   AND:

                   1.   MANIRAJ S/O. NAGARAJ NAYAK
                        AGE: 22 YEARS, OCC: BSNL
                        DRIVER TEST WORKER,
Digitally signed
by SHIVAKUMAR           R/O: NAGARAJ SIRSI, SHIRALI, BHATKAL,
HIREMATH                PRESENTLY KELAGINA PALYA,
Date: 2024.02.09
15:02:53 +0530          BEHIND TRISHOOL FRIENDS, HONNAVAR.

                   2.   HARISH S/O SALOTAGI,
                        AGE: 22 YEARS, OCC: STUDENT,
                        R/O: NAVANAGAR, MARATHIKOPPA, SIRSI.
                                                           ...RESPONDENTS

                   (BY SRI. SHIVAKUMAR S. BADAWADAGI, ADVOCATE)

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION
                   378(1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL
                   LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF
                   ACQUITTAL DATED 14.03.2016 PASSED BY THE LEARNED
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                                       NC: 2024:KHC-D:2310
                                       CRL.A No. 100207 of 2016




PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL
MAGISTRATE FIRST CLASS, SIRSI IN CRIMINAL CASE NO. 31
OF 2016 AND SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 14.03.2016 PASSED BY THE LEARNED
PRINCIPAL SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL
MAGISTRATE FIRST CLASS, SIRSI IN CRIMINAL CASE NO. 31
OF 2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 325 AND 504 READ
WITH SECTION 34 OF IPC, IN THE INTEREST OF JUSTICE AND
EQUITY.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The State has preferred this appeal against the

judgment of acquittal passed in C.C.No.31/2016 dated

14.03.2016 by the Principal Senior Civil Judge and Prl.

JMFC Court, Sirsi, wherein, the learned Magistrate

acquitted the accused/respondents for the offences

punishable under Sections 325 and 504 read with Section

34 of IPC.

2. The factual matrix of the prosecution case in

brief are that,

On 02.02.2014 at about 5.45 p.m, near Bellakkikere,

Vishalnagar, Sirsi (which comes within the limits of Sirsi

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New market Police Station), when the P.W.1-complainant

along with his friends i.e., P.W.3 and P.W.4 had gone

ground near Bellakikere Lake to play cricket, at that time,

the accused Nos.1 and 2 in furtherance of a common

intention to commit an offence, came there on a motorbike

and when P.W.1 questioned the same, the accused

persons abused him in filthy words and the respondent

No.1/accused No.1 voluntarily assaulted the complainant

and thereafter pushed him down and thereby he sustained

grievous injuries to his left shoulder. Subsequently, P.W.1-

injured was shifted to the Government Hospital at Sirsi

and thereafter he was shifted to Marikamba Hospital, Sirsi,

for higher treatment. When PW.1 was under treatment at

Marikamba Hospital, Sirsi, based on the MLC, P.W.8 -

Assistant Sub-Inspector of Sirsi Police Station, registered a

case against the respondents in Crime No.10/2014 for the

offences punishable under Sections 325 and 504 read with

Section 34 of IPC, as per Ex.P.8. Subsequently, P.W.8

conducted investigation and has drawn the spot mahazar

and also recorded the statement of the material witnesses

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and after obtaining the Wound Certificate from the Doctor

who treated the injured, thereafter PSI, New market Police

Station, Sirsi filed the chargesheet against the accused

persons for the aforesaid offences.

After receipt of the charge-sheet, learned Magistrate

took cognizance of the offence and framed charges against

the accused for the aforementioned offences and read over

the same to the accused. However, the accused denied the

charges and claimed to be tried.

3. In order to prove the charges leveled against

the accused before the Magistrate the prosecution

examined 08 witnesses as P.W.1 to P.W.8, so also got

marked 08 documents as Ex.P.1 to P.8.

4. After completion of the prosecution evidence,

the learned Magistrate read over the incriminating

evidence of the material witnesses to the accused as

contemplated under Section 313 of Cr.P.C. Though, the

accused denied the same, they did not choose to examine

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any witness on their behalf but has got marked four

documents as per Ex.D1 to D4 in support of their defense.

5. After assessment of the oral and documentary

evidence placed before the learned Magistrate, the learned

Magistrate acquitted the accused for the charges leveled

against them as stated supra. The said Judgment is

challenged under this appeal by the State.

6. I have heard the learned Addl. SPP for the

appellant/State, so also, learned counsel Sri.Shivakumar

S. Badawadagi for respondent Nos.1 and 2.

7. Learned Addl. SPP would vehemently contend

that, the Judgment under this appeal suffers from

perversity and illegality, since the learned Magistrate failed

to appreciate the evidence of material witnesses i.e. the

injured P.W.1 so also P.W.3 to P.W.5 who have

consistently deposed that on the date of the incident, the

accused No.1 quarreled with the injured and thereafter he

assaulted the injured and pushed him. As such, the injured

fell down and sustained grievous injuries on his left

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shoulder. He would further contend that, there is no

reason to disbelieve or discredit the consistent version of

these witnesses. Nevertheless, the prosecution also

examined the Doctor-P.W.6, who examined the injured

and issued the Wound Certificate as per Ex.P.6, which

depicts that, the injured sustained grievous injuries. As

such, according to the learned Addl. SPP the Magistrate

has totally erred in acquitting the accused for the charges

leveled against them. Accordingly, the learned Addl. SPP

prays to allow the appeal and to convict the accused for

the charges leveled against them.

8. Per contra, learned counsel for the

respondent/accused contends that, the learned Magistrate

has rightly acquitted the accused after evaluating the

evidence available on record. On such evaluation, learned

Magistrate has disproved the version of the injured P.W.1

and the eyewitnesses P.W.3 to P.W.5 since there are

material contradictions and omissions in their evidence.

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9. He would further contend that, the prosecution

also failed to examine the material witness who

accompanied the plaintiff at the time of the incident.

Moreover, on perusal of Ex.P.1, it depicts that P.W.1 went

along with one Harish Pujari to the place of incident and

thereafter the alleged incident has caused. On perusal of

evidence of PW.6- Doctor, so also report issued by him

under Ex.P.6, he has deposed that one Rajesh has

accompanied PW.1 to the hospital before PW.6. In such

circumstances, he would contend that the contents of

Ex.P.1 is quite contrary to the Ex.P.6 i.e. Wound

Certificate. Further he would also contend that, the Doctor

P.W.6 issued report at Ex.P.6 based on the Orthopaedician

report that the injured sustained grievous injuries.

However, the prosecution has neither produced any report

nor examined the said Orthopaedician. In such

circumstances, the learned Magistrate has rightly

acquitted the accused under a well reasoned Judgment

which does not call for interference by this Court.

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Accordingly, the learned counsel for the

respondent/accused prays to dismiss the appeal.

10. Having heard the learned Addl. SPP, so also,

the learned counsel for the respondent accused and having

perused the records made available before me, the only

point that would arise for my consideration is:

"Whether the Judgment under this appeal suffers from any perversity or illegality?"

10. On careful perusal and re-appreciation of the

evidence placed by the prosecution before the trial Court, I

find that;

P.W.1 is the injured complainant who lodged Ex.P.1.

By reiterating the contents of Ex.P.1, he deposed that, on

02.02.2014 at about 5.30 p.m. he went to the ground

near Bellakkikere lake to play cricket. At that time, the

accused Nos.1 and 2 came there and he quarreled with the

accused in connection with the parking of their two

wheeler in between the pitch where PW.1 and his friends

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were playing cricket. And, accused No.1 all of a sudden

quarreled with him and assaulted him and pushed him on

the ground to the side farm Bund. Hence, he sustained

grievous injuries on his left shoulder. Thereafter, he

lodged the complaint.

PW.2-Prithvi, friend of PW1, eye-witness to the

incident so also panch witness to the spot panchanama as

per Ex.P.2. Who also identified the photographs taken as

per Ex.P4 and 5. He deposed that, on the day of incident

he was at the spot and witnessed the scuffle that

underwent between the accused persons and PW.1.

PW.3-Suresh, eye-witness to the incident, deposed

that he being the friend of PW.1 had been to play cricket

along with PW.1, and when they were playing cricket the

accused persons came to the spot in a two wheeler and

parked the vehicle in midst of the playground where the

PW.1 and his friends were playing and when PW.1 asked

them to leave, enraged accused No.1 got off from the bike

and abused PW.1 in filthy language so also assaulted and

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pushed Pw.1 thereby causing injuries to PW.1 and he also

further deposed that posteriorly, he along with his friends

accompanied PW.1 to hospital for treatment.

PW.4- Kishan, PW-5-Raju, friends of PW.1, alleged

eye-witnesses to the incident, reiterated the facts as

narrated by PW.3 in his evidence and has contended that

PW.1 sustained injuries and wounds to his left hand and

swelling on his right cheek.

PW.6- Dr. Raghavendra, Medical Officer, issued

report as per Ex.P6 and deposed that PW.1 had attended

for medical examination along with one Sri. Rajesh and

further he has opined that, on opinion obtained by

Orthopaedician, he has given his final opinion that, PW.1

has sustained dislocated left shoulder and as such the

injuries are grievous in nature.

PW.7-Ganesh, panch witness for the Spot

Panchanama as per Ex.P2.

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PW-8- Malini, the then ASI of Sirsi New Market Police

Station, received the Complaint- Ex.P1 from PW.1 and

registered the FIR as per Ex.P8 under the aforementioned

provisions and carried the same to the jurisdictional

Magistrate. She has also conducted the Spot Panchanama

along with panchas as per Ex.P2, taken the photographs

as per Ex.P4 and 5, so also drawn the spot sketch as per

Ex.P3. Further, she has also recorded the statements of

the material witnesses and after obtaining the Wound

certificate-Ex.P6 from PW.6 has handed over the

investigation to the then PSI one Sri. Salim who laid the

chargesheet before the committal Court.

11. On perusal of the complaint at Ex.P.1, PW.1 has

stated that, on the date of incident he went along with his

friend one Harish Poojari and while they reached to the

place of incident, i.e. ground near Bellakkikere lake, the

accused No.1 quarreled with him and pushed him down.

Thereafter, he admitted to the Hospital. Admittedly, the

said Harish Poojari is neither cited as a charge-sheet

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witness nor examined by the prosecution. During the

course of cross-examination of P.W.1, deposed that, the

incident was caused while they were playing cricket in the

ground, the accused came there and parked their bike in

the middle of the ground, as such, when P.W.1 questioned

the accused, the accused No.1 assaulted and pushed him

down. P.W.3 to P.W.5 also deposed similar to that of

P.W.1 and stated that while they were playing cricket on

02.02.2014 at about 5.30 p.m., the accused came in a

motorbike and parked the same in the middle of the pitch

and the same was questioned by P.W.1. At that time, the

accused No.1 assaulted and pushed him down. Though the

learned counsel for the accused cross-examined these

witnesses at length, except the actual place of incident on

the ground, nothing worth while has been elicited from the

mouth of these witnesses.

12. Though, the learned counsel for the

respondent/accused vehemently contended that, there are

much contradictions in the evidence of P.W.1 and the

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eyewitnesses P.W.3 to P.W.5, on meticulous examination

of evidence of these witnesses, I am of the considered

view that, the prosecution has established the fact that,

P.W.1 and the accused were present on the date of the

incident i.e. on 02.02.2014 at about 5.30 p.m. in the

Cricket ground situated near Bellakkikere lake and there

had been a squabble between the accused No.1 and

P.W.1. In the said squabble P.W.1 sustained injuries.

13. Learned counsel for the respondent/accused in

furtherance contended that, Ex.P.1 does not disclose the

presence of P.W.3 and P.W.5 in the scene of occurrence.

However, on perusal of Ex.P.1 and the evidence of P.W.1,

the same depicts that his friends have shifted him to the

Hospital. In such circumstance, there is no reason to

disbelieve the testimony of P.W.3 to P.W.5 about their

presence on the scene of occurrence on the date of the

incident.

14. The learned trial Judge has acquitted the

accused mainly on the reason that, the prosecution has

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failed to seize the two wheeler in which the accused came

to the alleged spot of incident on the said date. However,

the said reasoning of the learned magistrate cannot be

accepted for the reason that, a faulty investigation

conducted by the Investigating Officer itself does not take

away the case of the prosecution as held in catena

decisions by this Court so also the Hon'ble Apex Court.

When there are ample evidence available on record by

way of testimonies of the eyewitnesses and also injured

witness P.W.1, the reasoning of the trial Judge for

acquitting the accused cannot be accepted. However, on

careful perusal of the evidence of the material witnesses

including the injured, none of these witnesses have

deposed in respect of the accused No.2/respondent No.2 is

concerned. They all categorically deposed that, the

accused No.1 quarreled with P.W.1 and assaulted him and

suddenly pushed him down. There is absolutely no such

physical overt act attributed against the accused No.2.

Though it is the case of the prosecution that, the accused

No.2 abused P.W.1, there is no such consistent evidence

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available to prove the same. As such, in my considered

view the learned Magistrate has rightly acquitted the

accused No.2 from the charges leveled against him.

15. On careful perusal of the above evidence, it is

admitted case of the prosecution, so also as depicted in

the evidence of P.W.1 and the eyewitness that, the

incident was caused in a spur of moment without any

premeditation. Both, P.W.1 and the accused had gathered

in the spot of incident to play cricket. In such

circumstance, for some reason, the said incident has taken

place in a sudden quarrel. There is no such intention or

motive is forthcoming on the part of the accused to cause

grievous hurt to P.W.1. Nevertheless, there are no cogent

proof is forthcoming neither in the evidence lead nor in the

documents marked by the prosecution as to the fact that,

PW.1 has sustained grievous injuries in the said quarrel.

Though prosecution has relied upon the evidence of

doctor-PW.6 so also the Wound Certificate issued by him

under Ex.P.6, said certificate and opinion of the doctor is

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based on the report of Orthopaedician which is not marked

by the prosecution in this case. The prosecution has also

failed to examine the Orthopaedician who has given the

said report. Hence, in such circumstance, I am constrained

to opine that, there exists no cogent evidence to hold that,

PW.1 has sustained grievous injuries. In order to further

substantiate, this Court finds it relevant to refer to Section

325 of IPC which reads thus-

"Whoever, except in the case provided for by section 335, voluntarily causes 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."

To further enunciate, I would also find it relevant to

refer to the provision under Section 321 of IPC which

is as under -

"Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

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16. To attract Sections 325 of IPC, while causing

grievous hurt, the accused must have committed the act

with an intention of causing such grievous hurt to any

person or with the knowledge that his act is likely to cause

grievous hurt to any person.

17. As discussed supra, there is no such intention

or knowledge is forthcoming in the case on hand on the

part of the accused No.1/respondent No.1 on the perusal

of the evidence adduced by the prosecution in this case.

However, as stated above, the incident has caused in a

grave and sudden provocation without any intention or

knowledge on the part of the accused. Hence, in my

considered view this case squarely falls under Section 334

of IPC, which reads as under:

"334. Voluntarily causing hurt on provocation:

Whoever, voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extent to one month, or with fine which may extent to five hundred rupees or with both."

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18. Hence, in view of the above discussion, I am of

the considered view that, the accused No.1/ the

respondent No.1 is liable to be punished for the offences

under Section 334 read with Section 504 of IPC instead of

Section 325 read with Section 504 of IPC. Accordingly, I

answer the above raised point in the affirmative, and

proceed to pass the following:

ORDER

i.The appeal filed by the State is allowed-in-part;

ii.The accused No.1/respondent No.1 is convicted for the offence punishable under Section 334 read with Section 504 of IPC instead of charged offence under section 325 read with Section 504 of IPC and he is sentenced to pay a fine of Rs.500/- and in default of payment of fine, he shall undergo imprisonment for a period of one week. However, the Judgment passed by the learned

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Magistrate in respect of accused No.2 is kept intact.

iii.The accused No.1/respondent No.1 is directed to pay the fine within a period of two weeks from the date of receipt of copy of this order before the learned Trial Court.

iv.If he fails to pay the fine amount, then the learned Trial Judge is directed to secure his presence and commit him to prison to undergo default sentence.