Karnataka High Court

Smt Lakshmi vs State Of Karnataka on 4 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                      NC: 2024:KHC:44266
                                                  CRL.RP No. 748 of 2017




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 4TH DAY OF NOVEMBER, 2024

                                    BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION NO. 748 OF 2017


            BETWEEN:

            SMT. LAKSHMI,
            W/O KEMPALAKKAIAH,
            AGED 40 YEARS,
            R/AT 2644, 3RD CROSS,
            MEDARAKERI, K.R. MOHALLA,
            MYSURU - 577 005.
                                                           ...PETITIONER
            (BY SRI. LETHIF B, ADVOCATE)

            AND:

            STATE OF KARNATAKA,
            BY K.R. POLICE STATION,
            MYSURU, MYSURU DISTRICT - 577 005,
Digitally
signed by   REPRESENTED BY SPP,
MALATESH    HIGH COURT BUILDING,
KC
Location:   BENGALURU - 560 001.
HIGH                                                      ...RESPONDENT
COURT OF
KARNATAKA   (BY SRI. VINAY MAHADEVAIAH, HCGP)

                   THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
            PRAYING    TO   SET   ASIDE     THE   JUDGMENT/ORDER      IN
            CRL.A.NO.70/2016 DATED 27.05.2017 PASSED BY THE I ADDL.
            S.J., MYSURU AND JUDGMENT AND ORDER DATED 16.12.2015
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                                             NC: 2024:KHC:44266
                                         CRL.RP No. 748 of 2017




IN C.C.NO.114/2014 PASSED BY THE JMFC-III, MYSURU BY
ALLOWING THE ABOVE R.P., AND ACQUIT THE PETITIONER.

       THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:


CORAM:       HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard the learned counsel Sri. B. Lethif for the

revision petitioner and the learned HCGP.

2. This revision petition is filed by accused No.2

Smt. Lakshmi who suffered an order of conviction in CC

No.114/2014 for the offence punishable under Section 326

read with Section 34 of the Indian Penal Code and

sentenced to undergo two years imprisonment and to pay

a fine of Rs.5,000/- and sentenced to pay a fine of

Rs.500/- for the offence punishable under Section 341

read with Section 34 of IPC, confirmed in

Crl.A.No.70/2016.

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3. Facts of the case in the nutshell for the disposal

of the revision petition are as under:

A complaint came to be lodged with K.R. Police

Station, Mysuru contending that on 12.10.2013 at about

9.30 am., in front of House No.2663, 3rd Cross

Medanakeri, K.R. Mohalla, Mysuru, when the complainant

was tying a wire to hang the washed clothes, accused

No.2 on account pre-existing enmity restrained the free

movement of the complainant and instigated her son who

is the juvenile offender to assault the complainant and

juvenile offence on the instigation of the revision

petitioner, assaulted the complainant, thereby complainant

sustained grievous injuries and thereafter action was

sought against both the accused persons.

4. Police after registering the case conducted

detailed investigation and filed the charge sheet against

both the accused for the offence punishable under

Sections 326 and 341 read with 34 Section of IPC.

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5. First accused being the juvenile offender was

tried before the Juvenile Justice Board, whereas accused

No.2 faced the trial before the Trial Magistrate. After

securing the presence of the accused, charges were

framed. Accused pleaded not guilty, therefore trial was

held.

6. In order to establish the case of the

prosecution, in all nine witnesses have been examined by

the prosecution as PWs.1 to 9 and as many as five

documents were placed on record which are exhibited as

Exs.P1 to P5 comprising wound certificate of the

complainant, Spot Mahazar, FIR.

7. During the course of spot mahazar, a knife,

pant and shirt were also seized by the prosecution which

were placed on record as Material objections No.1 to 3.

8. Detailed cross-examination of prosecution

witnesses did not yield any positive materials to falsify the

case of the prosecution as there is no delay in lodging the

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complaint and case of the prosecution stood proved by

oral and documentary evidence placed on record.

9. Insofar as accused No.1 is concerned he was

tried by the Juvenile Justice Board and he was acquitted.

10. Since there was a specific allegation found in

the complaint and the evidence of the prosecution that at

the instance of the present revision petitioner, accused

No.1 assaulted the complainant resulting in injuries as is

found in Ex.P4 wound certificate, the Trial Magistrate after

recording the accused statement noting that there are no

proper explanation offered by the accused nor any

evidence placed on record, convicted accused No.2 as

aforesaid and ordered imprisonment.

11. Being aggrieved by the same, present revision

petitioner filed appeal before the District Court in

Crl.A.No.70/106.

12. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and did

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not find any legal infirmity or perversity in recording order

of conviction of the accused and imposition of the

sentence, dismissed the appeal of the accused. Being

further aggrieved by the same, accused is before this

Court.

13. Learned counsel Sri. B. Lethif for the revision

petitioner reiterating the grounds urged in the revision

petition contending that both the courts have not properly

appreciated the material evidence on record and wrongly

convicted accused No.2 resulting in miscarriage of justice

and sought for allowing the revision petition.

14. He also pointed out that the eye witnesses to

the incident have turned hostile to the case of the

prosecution and wound certificate which is marked as

Ex.P4 only mentions the incise wound present over the left

temporal region and in the absence of any x-ray certificate

or examination of the doctor who issued Ex.P4 to establish

that the injury noted by the doctor in Ex.P4 is a grievous

injury, conviction of the accused for the offence punishable

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under Section 326 of IPC is totally uncalled for and sought

for allowing the revision petition.

15. He also contended that both the courts failed to

know that assailant namely accused No.1 who is the son of

the present revision petitioner having been acquitted by

the Juvenile Justice Board and prosecution having not

challenged the Order of acquittal passed against accused

No.1, both the courts ought not have convicted the

revision petitioner and sought for allowing the revision

petitioner.

16. Per contra, the learned HCGP Sri. Vinay

Mahadevaiah contended that even though accused No.1 is

acquitted taking note of the fact that he was a juvenile

offender, nothing prevented the learned Trial Magistrate to

exercise his discretionary power while re-appreciating the

material evidence insofar as the present revision petitioner

is concerned and thus conviction of the revision petitioner

is just and proper and sought for dismissal of the revision

petition.

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17. In reply, Sri. B. Lethif, learned counsel for the

revision petitioner contended that in the event this Court

upholding the Order of conviction, it can only be to the

extent an offence under Section 324 of IPC and enhancing

the fine amount, the sentence period ordered by the Trial

Magistrate, confirmed by the First Appellate Court needs

to be set-aside and to that extent, the revision petition is

to be allowed.

18. Having heard the parties in detail, this Court

perused the material on record meticulously. On such

perusal of material on record, the following points would

arise for consideration :

(i) Whether the prosecution has successfully established all necessary ingredients to attract the offence under Section 326 and 341 of IPC.

(ii) Whether the impugned judgment is suffering from legal infirmity and perversity and does call for interference?

(iii) Where the sentence is excessive?

           (iv)    What order?

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     19. REGARDING POINT NOS.1 AND 2:

Admittedly, in the case on hand, eye witnesses to the

incident have turned hostile to the case of the prosecution.

No doubt, an injured eye witness would stand on a higher

pedestal and therefore, the testimony of the injured eye

witness coupled with the corroboratory evidence in the

form of wound certificate would be sufficient enough to

establish the incident. However, to term, the injury

sustained by the injured as a grievous injury, there is no

sufficient material placed on record by the prosecution. In

Ex.P4 - wound certificate, the following injures are noted :

"Incised wound present over the left temporal region and superficial temporal artery was partially damaged and fresh blood stains were present."

20. In order to classify the injury as a grievous

injury, the prosecution ought to establish necessary

ingredients.

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21. In this regard, gainfully this Court culls out the

definition of grievous hurt as is defined under Section 320

IPC which reads as under:

"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".

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22. On careful perusal of the above provision, it is

crystal clear that the injury noted by the doctor who

issued Ex.P4, there is no specific mention as to nature of

injury. No doubt such an injury on the temporal region

may be treated as grievous injury if there is a fracture or

any other injury which would ultimately affect the very

functioning of the parts of the body.

23. In the case on hand, since the injury is a

superficial in nature, at best, it could be termed as a

bleeding injury caused by a weapon which would attract

the offence under Section 324 of IPC and not under

Section 326 of IPC.

24. Both the Courts have failed to note the said

aspect of the matter. There is no material on record to

establish that there was a fracture injury in the temporal

region as much as there is no x-ray certificate nor

radiological report.

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25. Under such circumstances, for want of

necessary proof, the learned Trial Magistrate and the

learned Judge of the First Appellate Court ought not to

have convicted the accused for the offence under Section

326 of IPC, more so when the assailant who is accused

No.1 has been acquitted by the Juvenile Justice Board.

26. Even with the aid of 34 IPC where the present

accused/petitioner said to have instigated accused No.1,

should have the benefit of acquittal of accused No.1.

However, it is to be noted that there was a previous

enmity between the complainant and the accused. On the

day of incident, when the complainant tried by tie a plastic

wire for hanging the clothes, the ugly incident has

occurred wherein the present petitioner instigated her son

who is a juvenile to teach a lesson for the complainant.

Being instigated by the mother, dutiful son has assaulted

the complainant with the knife. Part chosen by the accused

No.1 to assault the injured is the head. Nevertheless, in

the absence of the necessary ingredients to attract the

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offence under Section 326 of IPC, the action attributable

to the accused No.1 at the instigation of the accused No.2

could be traced for the offence one under Section 324 of

IPC instead of 326 of IPC.

27. Accordingly, point Nos.1 and 2 are answered

'Partly in the Affirmative'.

28. REGARDING POINT NO.3:

In view of the finding of this Court that accused/

petitioner is not liable to the offence under Section 326 of

IPC, the offence under Section 324 of IPC could be one

which could result in imposing the sentence or fine and not

compulsorily the period of imprisonment. Therefore, if the

sentence of imprisonment ordered by the Trial Magistrate

confirmed by the First Appellate Court is set-aside and

additional fine of Rs.10,000/- (Rs.5,500/- + Rs.10,000/-,

in all Rs.15,500/-), is imposed, ends of justice would be

met. Accordingly, point No.3 is answered "partly in the

affirmative'.

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29. REGARDING POINT NO.4:

In view of the finding of this Court on point Nos.1

to 3 as above, the following Order is passed:

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) Accused No.2/ Revision Petitioner is acquitted

for the offence punishable under Section 326 of

IPC, instead, accused No.2 /revision petitioner

is convicted for the offence punishable under

Section 324 of IPC.

(iii) Conviction of accused under Section 341 of IPC

is maintained.

(iv) Accused No.2/ Revision Petitioner is directed to

pay the enhanced fine of Rs.10,000/-, in all a

sum of Rs.15,500/- (Rs.5,500/- by the learned

Trial Magistrate + Rs.10,000/- imposed by this

Court for the offence punishable under Section