Karnataka High Court
Sri.Hemanna vs Paramesha on 23 February, 2024
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CRL.A.No.476 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.476 OF 2015 (A)
BETWEEN:
SRI.HEMANNA
S/O.RAME GOUDA
AGED ABOUT 50 YEARS
COOLIE
CHIKKAGOUJA
CHIKMAGALUR DISTRICT-577 101
...APPELLANT
(BY SRI.ASHOK NAIK, ADVOCATE)
AND:
1. PARAMESHA
AGED ABOUT 35 YEARS
S/O.YALLEGOWDA
AGRICULTURIST
R/O.CHIKKAGOUJA
CHIKMAGALUR TALUK
CHIKMAGALUR DISTRICT-577 101
2. GURUMURTHY
AGED ABOUT 30 YEARS
S/O.RANGARAYA
AGRICULTURIST
R/O.GHIKKAGOUJA
CHIKMAGALUR TALUK
CHIKMAGALUR DISTRICT-577 101
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CRL.A.No.476 of 2015
3. STATE
BY SAKHARAYAPATNA POLICE
KADUR TALUK
CHIKMAGALUR-577 101
...RESPONDENTS
(BY SRI.T.H.AVIN, ADVOCATE FOR R1
SRI.M.R.PATIL, HCGP FOR R3
SRI.N.S.SAMPANGI RAMAIAH, ADVOCATE FOR R2
(AMICUS CURIAE))
THIS APPEAL IS FILED UNDER SECTION 372 OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF THE
ACQUITTAL DATED 24.01.2015 PASSED BY THE LEARNED 2ND
ADDL. SESSIONS JUDGE, CHIKMAGALUR IN CRL.A.398/2013
BY ALLOWING THIS APPEAL AND TO RESTORE THE
CONVICTION JUDGMENT OF LEARNED 1ST ADDL. JMFC,
CHIKMAGALUR IN C.C.NO.569/2012 DATED 28.10.2013,
CONVICTING RESPONDENT NOS.1 & 2 FOR THE OFFENCES
P/U/S 326 R/W 34 OF IPC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.A.No.476 of 2015
JUDGMENT
Appellant/complainant feeling aggrieved by judgment
of First Appellate Court on the file of II
Addl.SessionsJudgeChikkamagaluru in Crl.A.No.398/2013
dated 24.01.2015 in reversing the judgment of Trial Court
on the file of I Addl.Civil Judge and JMFC, Chikkamagaluru,
C.C.No.569/2012, dated 28.10.2013 preferred this appeal
preferred this appeal.
2. Parties to the appeal 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 arguments of both sides and on
perusal of Trial Court records, so also the impugned
judgment under appeal, the following points arise for
consideration:
1) Whether the judgment of First Appellate Court
in reversing the judgment of conviction passed
by the Trial Court for the offence under Section
326 r/w Section 34 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 04.04.2012 at 9.30 p.m. complainant
Hemanna was proceeding towards Yellamma temple to
sleep there. When he reached near the house of Rangaiah,
both the accused all of a sudden assaulted on his back and
right thigh with the club and chopper over his left hand.
Accused have abused the complainant in filthy language
with an intention to cause insult to him, further
administered threat to take away the life of complainant.
On the basis of these allegations made in the complaint
case was registered against both accused in Sakrepatna
police crime No.33/2012 for the offence punishable under
Section 324, 504, 506 r/w 34 of IPC. The Investigating
Officer after completion of investigation filed charge sheet
for the offence punishable under Section 324, 326, 504,
506 r/w Section 34 of IPC.
appeared before the Court through their counsel. The Trial
Court on being prima facie satisfied of the charge sheet
materials framed the charges against accused for the
offences alleged against them. Accused have pleaded not
guilty and claimed to be tried.
7. Prosecution to prove the charges levelled
against accused relied on the oral testimony of PWs.1 to
12 and the documents at Exs.P.1 to 9, so also got
identified MOs.1 and 2. On closure of prosecution
evidence, the statement of accused u/s 313 of Cr.P.C.
came to be recorded. The Trial Court after having heard
the arguments of both sides acquitted both the accused
for the offence punishable under Section 324, 504, 506
r/w Section 34 of IPC. The Trial Court has convicted both
the accused for the offence punishable under Section 326
r/w Section 34 of IPC and imposed sentence as per the
order of sentence.
8. Accused Nos. 1 and 2 have challenged said
judgment of conviction and order of sentence for the
offence punishable under Section 326 r/w 34 of IPC before
the First Appellate Court on the file of II Addl.Sessions
Judge, Chikkamagaluru in Crl.A.No.398/2013. The First
Appellate Court after re-appreciation of evidence on record
by judgment dated 24.01.2015 allowed the appeal and set
aside the judgment of conviction of both the accused and
acquitted them for the offence punishable under Section
326 r/w Section 34 of IPC.
9. Learned counsel for complainant has
vehemently argued that the First Appellate Court has
committed serious error in discarding the evidence of
injured witness PW.1 Hemanna and PW.11 Dr.Somashekar
who has treated the injured PW.1 Hemanna and issued
wound certificate Ex.P.6. The First Appellate Court has also
committed serious error in discarding the evidence of PW.5
Umesh, PW.6 Siddamma, son and wife of complainant
respectively. The mere fact that PWs.2 to 4 who are
independent eye witnesses to the incident in question
have not supported the case of prosecution cannot be a
ground to acquit the accused for the offence punishable
under Section 326 of IPC by ignoring the evidence injured
witness PW.1 Hemanna and PW.11 Dr.Somashekar.
10. Per contra, learned counsel for accused Nos.1
and 2 have argued that the opinion of PW.11
Dr.Somashekar that the injury noted in the wound
certificate Ex.P.6 is grievous in nature is not supported by
any evidence on record. There is no evidence on record to
prove that complainant has sustained injuries noted in the
wound certificate Ex.P.6 due to assault by means of club
and chopper. The independent witnesses PWs.2 to 4 have
not supported the case of prosecution, further PW.5
Umesh and PW.5 Siddamma are not the eye witnesses to
the incident which is evident from their evidence. The First
Appellate Court assigned valid reasons in setting aside the
judgment of Trial Court and in acquitting the accused for
the offence under Section 326 r/w Section 34 of IPC and
the same does not call for any interference by this Court.
11. The material witnesses relied by the
prosecution to prove the alleged offence against accused
are PW.1 Hemanna, PW.5 Umesh and PW.6 Siddamma,
son and wife of complainant respectively. The said
evidence is sought to be corroborated by the evidence of
PW.11 Dr.Somashekar who has examined the injured
PW.1 Hemanna and issued wound certificate Ex.P.6. The
prosecution also seeks to rely on the evidence of PW.12
Vedamurthy who has conducted part of investigation.
12. PW.1 Hemanna has deposed before the Court
that on 04.04.2012 at 9.30 p.m. he was proceeding to
Yellamma temple to guard the materials stored for
construction of the temple. When he reached near the
house of Gurumurthy was proceeding by abusing that
somebody has committed theft of the wood stored for the
construction of temple. Accused Nos.1 and 2 came to the
said place and assaulted by means of club and chopper
over his back and right thigh and also over left hand due
to which he sustained injuries. One Nagaraj who came to
the spot has pacified the quarrel, further accused Nos. 1
and 2 threw the club and chopper and went away from the
place. The said Nagaraj and wife of complainant shifted
injured complainant to the hospital. On arrival of police to
hospital filed complaint Ex.P.1.
13. The evidence of PW.5 Umesh and PW.6
Siddamma son and wife of injured complainant
respectively are admittedly not eye witnesses to the
incident and they came to the spot after coming to know
about the incident. They shifted injured PW.1 to the
hospital.
14. The evidence of PW.11 Dr.Somashekar and the
wound certificate Ex.P.6 would go to show that the injured
Hemanna was brought to the hospital on 05.04.2012 at
12.20 a.m. and on examination found the following
injuries:
1) Lacerated wound on the left arm and found
that there is fracture of left humerus.
PW.11 Dr.Somashekar has opined that the said injury
is grievous in nature.
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15. The prosecution specifically alleges that accused
No.1 Paramesha by means of club assaulted on back and
thigh and accused No.2 Gurumurthy assaulted by means
of chopper on the left hand of PW.1 Hemanna. However,
no any injuries were found on the injured PW.1 Hemanna
on back and thigh due to assault of accused by means of
chopper or club. It is suggested to PW.11 Dr.Somashekar
by the prosecution itself in the examination-in-chief that if
a person is assaulted by means of club, then injury noted
in the wound certificate Ex.P.6 over left hand can be
possible and the witness admits to the same. PW.11
Dr.Somashekar admits in the cross-examination that the
length, width and depth of injury is not shown in the
wound certificate Ex.P.6 and the said injury cannot be
caused if a person is assaulted by means of club. He has
further admitted if a person falls on the sharp edge of
stone then injury noted in Ex.P.6 can be caused. It is
pertinent to note that Trial Court has permitted to
re-examine this witness and admits that he has stated in
Ex.P.6 wound certificate that injury is caused due to
assault by means of chopper and such injury could be
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caused, if a person is assaulted by means of chopper. Out
of the above referred evidence of PW.1, it is evident that
there is inconsistent evidence regarding the injury caused
to PW.1 Hemanna either due to assault by means of club
or chopper. According to the evidence of PW.1 in the
cross-examination, accused No.2 came from his back side
and assaulted by means of chopper. This accused No.2
was unknown to the complainant PW.1. PW.1 though in
the opening sentence of his examination-in-chief claims
that he has no acquaintance with accused, but in the
cross-examination admits that accused No.1 is his
nephew. PW.1 Hemanna further admits that there is civil
dispute between him and accused over the space where
the temple is being constructed. It is further admitted that
it was decided to partition among them and accused No.1
has done mason work for the construction of temple.
16. The evidence of PW.11 Dr.Somashekar that
injury noted in Ex.P.6 is grievous in nature is not
supported by any evidence on record. There is no any
evidence in wound certificate Ex.P.6 as to on what basis
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the opinion was recorded that there was fracture of left
humerus. The X-ray report or radiology report is not
produced before PW.11 Dr.Somashekar, so as to opine
that there was fracture of left humerus. In this context of
the matter it is useful to refer the judgment of Hon'ble
Kerala High Court in P.Johnson and others Vs. State of
Kerala reported in 1998 Cri.L.J. 3651, wherein it has
been observed and held in para No.4(a) as under:
"4A. 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
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
the criminal liability either under Section 325 or
326, I.P.C. is not established. This flaw is also a
stronger one shaking the case of prosecution."
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In the present case also X-ray report is not produced
and the doctor who has taken X-ray has not been
examined. It is not the evidence of PW.11 Dr.Somashekar
that he himself has taken X-ray and competent to give
opinion on the basis of such X-ray that injury found on left
humerus of complainant PW.1 Hemanna is grievous in
nature.
17. On the same position of law it is profitable to
refer the division bench judgment of this Court in State
Vs. Seenappa Gowda and others reported 2011 (4)
KCCR 2759 (DB), wherein it has been observed and held
in para 11 as under:
"It is now well settled that unless the
prosecution produces the X-ray for confirmation for
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 accused has not
disputed the nature of injuries spoken to PW.1.
However, the same would not dispense with the
production of X-ray by the prosecution to prove
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beyond reasonable doubt that injured has sustained
fracture of middle phalanx, which is an opinion
given by PW.1-Doctor only on clinical examination
of PW.4, the injured."
In view of the principles enunciated in the
aforementioned two judgments, it is evident that offence
punishable under Section 326 of IPC cannot be proved
without requisite evidence of X-ray report and radiology
report which would be necessary to form an opinion that
injury caused to the person is grievous in nature. In the
present case also no any evidence is produced on record
by prosecution. Therefore it will have to be held that the
offence punishable under Section 326 of IPC has not been
established by the prosecution.
18. Learned counsel for complainant in support of
his contention that suggestion by defence counsel in cross-
examination has to be appreciated with other evidence on
record relied on the judgment of Hon'ble Apex Court in
Balu Sudam Khalde and Another Vs. The State of
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Maharashtra reported in AIR 2023 (SC) 1736,
wherein it has been observed and held as under:
"C. Suggestion by defence counsel in cross-
examination-Any concession of admission of fact
by defence counsel would be definitely be binding
on his clint, except the concession on the point of
law-Further, suggestions made to witness by
defence counsel in cross examination and reply to
suggestions would definitely form part of evidence
and can be relied upon by Court along with other
evidence on record to determine guilt of accused".
"Evidence Act, 1872, Section 6-Relevancy of facts
forming part of same transaction-Fact which,
though not in issue, is so connect with the fact in
issue "as to form part of the same transaction"
becomes relevant by itself-To form particular
statement as part of same transaction utterances
must be simultaneous with incident or substantial
contemporaneous that is made either during or
immediately before or after its occurrence-
Admissibility of a statement of rikshaw driver
coming to know about the incident, immediately
from first informant that deceased seriously
assaulted and also suffered injuries and admitted
by informant in his evidence would be attracted
with all its rigour".
In the present case also, suggestion made to PW.11
Dr.Somashekar regarding the possibility of sustaining over
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the left humerus due to fall on the sharp edge of stone by
PW.1 Hemanna has to be appreciated with other evidence
on record.
19. On perusal of the complaint allegations Ex.P.1,
it would go to show that PW.2 Nagaraj, PW.3 Ravi and
PW.4 Chandregowda are said to be the independent eye
witnesses to the incident in question. However, they have
not supported the case of prosecution. The other two
witnesses PW.5 Umesh and PW.6 Siddamma respectively
are son and wife of complainant Hemanna and they are
not eye witnesses to the incident, they came to the spot
only after hearing about the incident and shifted the
injured PW.1 Hemanna to the Government Hospital in the
ambulance called by PW.7 Nagaraj. According to the
evidence of PW.1 Hemanna accused No.2 came from his
back side and assaulted on his left hand by means of
chopper. This accused No.2 was unknown to PW.1
Hemanna. The alleged incident said to have taken place at
about 9.30 p.m. during night. PW.2 Nagaraj in the cross-
examination by the defence counsel admits that there are
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no any street lights by the side of house of himself and
that of accused. The same is the admission of PW.3 Ravi in
the cross-examination. Learned counsel for complainant
has argued that these suggestions admitted by PWs.2 and
3 of a hostile witness cannot be accepted without there
being any other evidence on record. In support of such
contention reliance is placed on the judgment of Hon'ble
Apex Court in Balu Sudam Khalde referred supra. Learned
defence counsel have submitted that the examination-in-
chief of independent panch witnesses PW.8 Thimmegowda
and PW.9 Sannegowda is silent regarding the presence of
street light at the spot of incident. The author of spot
panchanama Ex.P.5 is examined by prosecution as PW.12
Vedamurthy who has deposed about preparation of
panchanama Ex.P.5 and the sketch map Ex.P.9, so also
having taken photograph of the place of incident Ex.P.8.
The photograph at Ex.P.8 and sketch map Ex.P.9 prepared
by PW.12 Vedamurthy at the time of drawing spot
panchanama does not disclose about the existence of
street light at the place of incident. Therefore, on what
basis prosecution alleges that it is accused No.2 assaulted
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PW.1 Hemanna by means of chopper over his left hand
due to which he suffered injury has not been explained by
prosecution. In view of the said evidence on record, the
admission of PWs.2 and 3 in their cross-examination
regarding the absence of street light at the place of
incident is corroborated by other evidence on record.
Admittedly, there is dispute between PW.1 Hemanna and
accused No.1 who is his nephew regarding the place where
the temple is being constructed and civil case is pending in
that regard. Accused No.1 was asking to enter the joint
name in the records and in that regard civil suit is pending
before the Court. It has been also admitted by PW.1 in the
cross-examination that the crushed stone and sand was
stored in the land belongs to Gurumurthy and he was
asking to remove the same which is adjacent to the under
construction temple. The mere presence of injury on the
left humerus of complainant PW.1 Hemanna itself cannot
be said as sufficient evidence to prove the fact that both
the accused with their common intention assaulted PW.1
Hemanna more particularly accused No.2 by means of
chopper, unless it is established beyond all reasonable
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doubt that it is accused No.2 who shared intention with
accused No.1 assaulted by means of chopper and caused
injuries to PW.1 Hemanna. The prosecution has failed to
establish the nexus between the injury found on PW.1
Hemanna noted in the wound certificate Ex.P.6 due to
assault of accused No.2 by means of chopper. The medical
evidence in the form of PW.11 Dr.Somashekar is not
consistent with regard to the alleged weapon being used
for assaulting PW.1 Hemanna.
20. The prosecution to prove the recovery of
MOs.1 and 2 under the panchanama Ex.P.5 relies on the
evidence of PW.8 Thimmegowda and PW.9 Sannegowda.
On going through their evidence, it would go to show that
they have never stated that it is PW.5 Umesh who has
identified and produced MOs.1 and 2 under the
panchanama Ex.P.5. PW.5 Umesh was not the eye witness
to the incident and how he could identify the weapons
used by accused Nos.1 and 2 for assaulting PW.1
complainant Hemanna has not been satisfactorily
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explained by prosecution out of the evidence placed on
record.
21. The Trial Court without properly appreciating
the evidence on record has erroneously proceed to record
conviction against accused for the offence punishable
under Section 326 of IPC. The First Appellate Court has
rightly appreciated the oral and documentary evidence
placed on record in recording divergent finding to reverse
the judgment of conviction passed by Trial Court for the
offence under Section 326 of IPC. The said finding
recorded by First Appellate Court is based on proper
appreciation of evidence placed on record and the same
does not call for any interference by this Court.
Consequently, proceed to pass the following:
ORDER
Appeal filed by appellant/complainant is hereby
dismissed as devoid of merits.
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The services rendered by learned Amicus Curiae for
the respondent No.2 is placed on record in assisting the
Court and honorarium is fixed as Rs.3,000/- payable by
the Registry.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
