Karnataka High Court
Abhi @ Abhishek vs State By K R Police Station on 21 February, 2024
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CRL.RP No. 330 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 330 OF 2017
BETWEEN:
ABHI @ ABHISHEK
Digitally S/O K.R. RAMESH
signed by
SUDHA S AGED ABOUT 21 YEARS
Location: R/O. 674/1, KASHIPATHI AGRAHARA
HIGH COURT
OF K.R. MOHALLA
KARNATAKA
MYSURU - 570 001.
...PETITIONER
(BY SRI. VISHWAJITH RAI M, ADVOCATE)
AND:
STATE BY K R POLICE STATION
MYSURU,
REPTD. BY S.P.P,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.02.2017
PASSED BY THE II ADDITIONAL SESSIONS JUDGE, MYSURU IN
CRL.A.NO.241/2015 AND ALSO THE JUDGMENT AND ORDER
DATED 17.08.2015 PASSED BY THE J.M.F.C.-III COURT,
MYSORE IN C.C.NO.71/2010 (CLUBBED WITH
C.C.NO.660/2012) AND ETC.,
THIS PETITION, COMING ON FOR DISPOSAL, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 330 of 2017
ORDER
1. This Revision Petition is filed by the petitioner being
aggrieved by the judgment of conviction and order of
sentence dated 17.08.2015 in C.C No.71/2010 on the file
of the Judicial Magistrate First Class (III Court), Mysore
and its confirmation judgment and order dated
10.02.2017 in Crl.A No.241/2015 on the file of the II
Additional Sessions Judge, Mysuru. Both the Courts have
concurrently held that the petitioner herein found guilty
for the offences punishable under Sections 341, 324, 326,
504, 506 r/w 34 of Indian Penal Code (for short 'IPC').
2. The petitioner is accused No.1 in C.C No.71/2010 before
the Trial Court and appellant in Crl.A No.241/2015 before
the Appellate Court.
Brief facts of the case:
3. It is the case of the prosecution that, on 24.11.2009 at
about 6.45 p.m., in front of Chamundi Kushan Works at
6th Cross, Thyagaraja Road, Mysuru, the complainant
along with his cousin by name Tharun were on their way
to their house after visiting the mobile shop to get the
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mobile activated. The accused Nos.1 and 2 in furtherance
of common intention restrained them wrongfully and
started quarrelling with them. The accused No.1
assaulted the complainant with the razor on his nose and
caused injuries and further, the accused No.2 assaulted
the complainant with iron rod and caused injuries to his
head, lips and both shoulders. Further, the accused No.1
assaulted the cousin of the complainant and caused him
injuries.
4. The complainant after the incident has informed the
jurisdictional police. The jurisdictional police have
registered a case in Crime No.320/2009 for the offences
stated supra. After conducting investigation, submitted
the charge sheet.
5. The Trial Court after appreciating both the oral and
documentary evidence on record, recorded the conviction
of both the accused including the petitioner herein. Being
aggrieved by the same, both the accused have preferred
appeal independently.
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6. Heard Sri.Viswajith Rai.M, learned counsel for petitioner
and Sri.Rahul Rai.K, learned High Court Government
Pleader for the respondent.
7. The learned counsel for the petitioner submits that the
concurrent findings recorded by the Courts below without
appreciating the evidence and documents properly are
erroneous and illegal. Therefore, the concurrent findings
recorded for conviction are required to be set aside.
8. It is further submitted that the allegations made against
the petitioner herein is that he has assaulted the
complainant with razor on his nose, the incident occurred
due to anger and sudden provocation and there was no
intention to cause any hurt to the complainant and his
cousin.
9. It is further submitted that the Trial Court failed to take
note of the wound certificate properly. The definition of
Section 320 of IPC has not been considered while
analyzing the evidence. In the absence of any document
to corroborate the said injury said to have sustained by
the complainant is a fracture injury, the ingredients of
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Section 326 of IPC would not be attracted. The Trial
Court and the Appellate Court failed to take note of this
aspect and recorded the conviction under Section 326 of
IPC which requires to be set aside. Making such
submission, the learned counsel for petitioner prays to
allow the petition.
10. Per contra, the learned High Court Government Pleader
for the respondent - State justified the concurrent
findings recorded by the Courts below and submitted that
the Trial Court and Appellate Court appreciated the
evidence of eyewitness cum injured witness and also the
documents and wound certificate properly and recorded
the conviction.
11. It is further submitted that the findings of the Courts
below in recording the conviction are appropriate and
proper. The petitioners have not made out any grounds
to interfere with the said findings. Therefore, the
petitioner has to be dismissed. Making such submission,
the learned High Court Government Pleader for the
respondent - State prays to dismiss the petition.
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12. After having heard the learned counsel for the respective
parties and also perused the findings of the Courts below
in recording the conviction, it is relevant to take note of
the proposition of law regarding interference by this Court
in concurrent findings recorded by the Courts below.
13. It is settled principle of law that Revisional Court usually
cannot interfere with the facts of the case. However, if
any error or irregularity committed by the Courts below
in recording the conviction or appreciation of evidence,
interference can be made in order to secure the ends of
justice. In such circumstances, the Revisional Court can
have a cursory look upon the evidence of all the
witnesses to arrive at a conclusion.
14. In this case, PW.1 is the complainant and PW.2 is the
relative of the complainant. They were proceeding
towards mobile shop to get their mobile recharge at
Thyagaraj Road. After getting their work done, they were
coming back to their house on the same road. The
accused No.1 took quarrel with them and accused No.2
came to the spot. The accused No.1 was having a razor
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in his hands and accused No.2 was having iron rod in his
hand. Accused No.1 assaulted the complainant by razor
on his nose and caused bleeding injury. Accused No.2
assaulted with iron rod on the head of the complainant
and caused injuries. PW.2 supported the case of the
prosecution and identified M.O.1 - razor. However, he did
not identify the iron rod.
15. PW.2 is a witness to spot mahazar which is marked as
Ex.P4. He has supported the case of the prosecution.
16. PW.3 is the independent eyewitness, has supported the
case of the prosecution and he has identified the accused
Nos.1 and 2.
17. PW.4 supposed to be the eyewitness to the incident, has
turned hostile and not supported the case of the
prosecution.
18. PW.5 is a witness to seizure mahazar which is marked as
Ex.P6. He has stated that he has affixed his signature on
Ex.P6. The prosecution treated him as hostile and
conducted cross-examination, nothing has been elicited to
support the case of the prosecution.
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19. PW.6 said to be the eyewitness and injured was
accompanying PW.1 to go to mobile shop. He has
supported the case of the prosecution.
20. PW.7 is a witness to spot mahazar and seizure mahazar
which is marked as Ex.P7. The prosecution treated him
as hostile and conducted cross-examination, nothing has
been elicited to support the case of the prosecution.
21. PW.8 is the Doctor who treated PWs.1 and 6 and issued
wound certificate as per Ex.P8.
22. The evidence of PWs.1, 3 and 6 are consistent regarding
the incident and assault made by accused Nos.1 and 2 to
PWs.1 and 6. The Doctor who treated PWs.1 and 6 has
stated that he has treated them and issued wound
certificate as per Ex.P8. Even though these witnesses
have been subjected to cross-examination at length,
nothing has been elicited to discredit their evidence and
therefore their evidence in respect of the incident and
assault has been accepted and the Courts below have
rightly appreciated their evidence in respect of incident
and assault. However, whether the Courts below have
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recorded the conviction for the offence under Section 326
of IPC has to be considered on the facts and
circumstances of the case.
23. Now, it is relevant to take note of provision under Section
320 of IPC which reads thus:
"320. Grievous hurt.--
The following kinds of hurt only are designated as
"grievous":--
(First)-- Emasculation.
(Secondly)-- Permanent privation of the sight of
either eye.
(Thirdly)-- Permanent privation of the hearing of
either ear,
(Fourthly)-- Privation of any member or joint.
(Fifthly)-- Destruction or permanent impairing of
the powers of any member or joint.
(Sixthly)-- Permanent disfiguration of the head or
face.
(Seventhly)-- Fracture or dislocation of a bone or
tooth.
(Eighthly)-- Any hurt which endangers life or
which causes the sufferer to be during the space of
twenty days in severe bodily pain, or unable to
follow his ordinary pursuits."
24. On careful reading of the above said provision, it makes it
clear that in order to constitute an offence under Section
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326 of IPC, the ingredients of Section 320 of IPC has to
be followed. Even assuming that the injured has
sustained fracture injury, to substantiate the said
fracture, there must be a X-ray to be produced. In the
absence of the X-ray, even though there is a wound
certificate of the doctor regarding fracture which is
termed as grievous in nature, it cannot be accepted. In
the present case, the prosecution has failed to produce
the X-ray to prove that the complainant has sustained
fracture injury. Therefore, the conviction recorded by
both the Courts for the offence under Section 326 of IPC
cannot be sustained. Accordingly, the said conviction has
to be set aside.
25. Now coming to the other offences are concerned, it is
needless to say that PWs.1 and 6 are the eyewitnesses -
cum- injured witnesses. The Doctor who treated PWs.1
and 6 has supported the case of the prosecution. The
weapons used for commission of the said offences,
certainly, can be classified as dangerous weapons.
Therefore, the conviction recorded by the Courts below in
respect of the offences which are punishable under
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Sections 341, 324, 504, 506 r/w 34 of IPC has to be
maintained as it is.
26. The learned counsel for the petitioner made submission
alternatively that the petitioner may be sentenced to pay
fine instead of imprisonment. The learned counsel further
made submission that the jurisdictional police have
opened the rowdy sheet against the petitioner /accused
No.1 and if the petitioner is sent to jail, there may be
chances of meeting with other inmates and may be
chances of becoming hardcore. Therefore, the learned
counsel prays to sentence the petitioner with fine.
27. Considering the same, it is appropriate to modify the
sentence of term to sentence of fine in order to show
some leniency towards the petitioner to lead his happy
life in future.
28. In the light of the observation made above, I proceed to
pass the following:
ORDER
i) The Criminal Revision Petition is allowed in part.
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ii) The judgment of conviction and order of sentence
dated 17.08.2015 passed in C.C No.71/2010 by the
Judicial Magistrate First Class (III Court), Mysore and
the judgment and order dated 10.02.2017 passed in
Crl.A No.241/2015 on the file of the II Additional
Sessions Judge, Mysuru , are modified.
iii) The offence punishable under Section 326 of IPC is
set aside.
iv) The offences punishable under Sections 341, 324,
504, 506 r/w Section 34 of IPC is maintained insofar
as the fine is concerned as it is and imprisonment for
six months for the offence under Section 324 of IPC
is set aside and the fine of Rs.2,000/- for the offence
under Section 324 of IPC is maintained.
v) The fine as is ordered by the Trial Court in respect of
offence under Section 341, 504, 506 r/w 34 of IPC is
maintained and the petitioner herein is ordered to
pay the fine, if not paid after the appeal period is
over.
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vi) The Registry is directed to send the Trial Court
Records along with copy of this order forthwith.
Sd/-
JUDGE
