Karnataka High Court

Ganesha vs State Of Karanataka on 2 September, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                    NC: 2024:KHC:35733
                                                 CRL.A No. 940 of 2011




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 2ND DAY OF SEPTEMBER, 2024

                                      BEFORE
                      THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                          CRIMINAL APPEAL NO. 940 OF 2011
               BETWEEN:

                  GANESHA
                  AGED ABOUT 24 YEARS
                  S/O BETTAIAH
                  AMBEDKAR STREET,
                  SARGUR TOWN,
                  H.D. KOTE TALUK,MYSORE DIST
                                                          ...APPELLANT

               (BY SRI. P NATARAJU, ADVOCATE)

               AND:

                  STATE OF KARNATAKA
                  BY SARGUR POLICE STATION
                  REP BY STATE PUBLIC PROSECUTOR
Digitally         HIGH COURT BUILDING,
signed by         BANGALORE.
LAKSHMI T                                               ...RESPONDENT
Location:      (BY SRI. RANGASWAMY R., HCGP)
High Court
of Karnataka        THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
               SET ASIDE THE ORDER DATED:24.10.09/29.8.11 PASSED BY
               THE P.O., FTC-V, MYSORE IN S.C.NO.237/06 - ACQUIT THE
               APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 333 OF IPC.

                    THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
               DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


               CORAM:    HON'BLE MR JUSTICE MOHAMMAD NAWAZ
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                                       NC: 2024:KHC:35733
                                    CRL.A No. 940 of 2011




                      ORAL JUDGMENT

The judgment and order passed by the trial Court,

convicting the appellant/accused No.1 for the offence

punishable under Section 333 of IPC is assailed in this

appeal.

2. Accused Nos.1 to 3 were charged for the

offence punishable under Section 333 and 353 r/w 34 of

IPC. The charges were held not to be proved against them

under Section 353 r/w 34 of IPC and against accused

Nos.2 and 3 for the offence punishable under Section 333

r/w 34 of IPC. The trial Court held that the alleged

incident attracts the offence punishable under Section 333

of IPC against accused No.1, since he has voluntarily

caused grievous hurt to PW.8 when he was discharging his

duty as a public servant.

3. Heard both sides and perused the evidence and

material on record.

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4. In brief, the case of prosecution is that on

01.04.2006 at about 10.30 p.m., one Smt. Vijaya (PW.3),

complained to the SHO of Sargur Police Station, HD Kote

Taluk, Mysuru District, that her Stepson Ganesha (accused

No.1) has been quarrelling with her under the influence of

alcohol, demanding share in the property. Hence, SHO -

PW.6 registered an NCR in No.76/2006 and deputed

PWs.1, 7 and 8 to look into the matter. When PWs.1, 7

and 8 went near the house of Smt. Vijaya, accused

persons started abusing them using filthy language.

Accused No.1 held the collar of PW.8 and twisted his right

hand and prevented them from discharging their duty.

5. The prosecution in all examined 12 witnesses

and got marked 13 documents and MOs.1 and 2. Among

the prosecution witnesses PWs.2 to 4 have been treated

hostile. The defence did not choose to lead any evidence.

6. According to the prosecution, one Smt. Vijaya,

examined as PW.3 gave a complaint at Sargur Police

Station that her stepson has been making galata under the

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influence of alcohol, demanding share in the property.

After registering an NCR, PW.6 sent PWs.1, 7 and 8 to the

spot. When they went near the house of PW.3, all the

three accused abused them in filthy language and accused

No.1 held the shirt collar of PW.8 and twisted his right

hand and voluntarily caused grievous hurt to him.

7. Ex.P1 is the complaint lodged by PW.1, on the

basis of which PW.9 - PSI registered a case against the

accused persons and forwarded the FIR - Ex.P8 to the

jurisdictional Court. The injured - PW.8, as per Ex.P1 was

initially taken to one Vivekananda Hospital in Sargur and

after treatment, he was shifted to BGS Apollo Hospital,

Mysore, for further treatment.

8. PWs.1, 7 and 8 have stated in their deposition

that when they went near the house of PW.3, the accused

were quarrelling with PW.3 and when they questioned

them, all the three accused pushed them and accused

No.1 held the collar of PW.8 and twisted his right hand and

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in the said incident, the uniform of PW.8 was torn and two

buttons came off.

9. The I.O. - PW.11 who took over investigation

from PW.9 proceeded to the spot and conducted the spot

mahazar - Ex.P2 and from the spot, seized two buttons

marked as MO.1. The torn shirt of PW.8 was later seized

under a mahazar - Ex.P6. The said shirt is marked as

MO.2.

10. Even though PW.3 - Smt Vijaya has not stated

anything about the accused deterring or obstructing

PWs.1, 7 and 8 from discharging their duty or twisting the

hand of P.W 8 etc., she has stated about giving a

complaint to the police against accused No.1. The

prosecution has got marked Ex.P4, the complaint lodged

by PW.3, on the basis of which an NCR was registered.

Hence, it is established that on 01.04.2006 at about 9.45

p.m., PW.3 went and complained against accused No.1

and in that connection an NCR was registered, following

which PW.6 instructed PWs.1, 7 and 8 to go to the spot.

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11. PW2 is an eye witness, but he has not

supported the case of prosecution. However, the evidence

of PWs.1, 7 and 8 cannot be disbelieved only on the

ground that they are police officials. PW8 being the victim

himself, there is no reason to disbelieve his evidence.

Though PWs.1, 7 and 8 have been cross-examined at

length, nothing is elicited in their cross-examination to

disbelieve the incident.

12. The prosecution has examined the Doctor-PW10

and got marked Exs.P9 and 10, the case sheet and the

wound certificate. PW10 has deposed that on 2.4.2006 at

around 2.00 a.m., the injured-PW8 was brought to the

hospital by the police. The said evidence corroborates the

evidence of PWs.1, 7 and 8. Hence, the prosecution has

established that accused No.1 obstructed PWs.1, 7 and 8

from discharging their duty and also caused injury to PW8.

13. According to prosecution, appellant voluntarily

caused grievous hurt to PW8 by twisting his right hand.

Prosecution has relied on the evidence of PW10 and the

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documents at Exs.9 and 10 to establish that the injuries

sustained by PW8 is a grievous injury.

14. Learned High Court Government Pleader has

contended that as per Ex.P10, the nature of injury

received are grievous in nature and even in Ex.P9 it is

stated that closed reduction of right shoulder was done.

He contended that the injured PW8 was admitted to

hospital with pain and swelling in the right shoulder and he

has undergone closed reduction of right shoulder and

hence, the trial Court rightly convicted the appellant under

Section 333 of IPC.

15. Learned counsel for the appellant, on the other

hand, has contended that the medical documents

regarding the treatment taken by PW8 at Vivekananda

Hospital has been suppressed and further, the doctor who

treated him at BGS Apollo Hospital has not been

examined. He argued that the prosecution has not

established beyond reasonable doubt that PW8 has

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sustained grievous injury or that accused voluntarily

caused grievous hurt to him.

16. In Ex.P1, it is clearly stated that initially, the

injured was taken to one Vivekananda Hospital, Sargur,

and after providing him treatment in the said hospital, he

was shifted to BGS Apollo Hospital, Mysore.

17. PW8 in his evidence has stated that at

Vivekananda Hospital, X-ray was taken and in the X-ray it

was noticed that there was dislocation. However, the

medical documents of Vivekananda Hospital or the X-ray

showing dislocation are not produced and marked by the

prosecution to conclusively prove that PW8 sustained

fracture or dislocation. As per Ex.P10, wound certificate,

PW8 was discharged on 03.04.2006 with stable condition.

Admittedly, one Dr.Manjunath, who treated PW8 and

prepared the case sheet and issued the wound certificate

has not been examined. Hence, it cannot be said that the

prosecution has been able to establish that PW8 has

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sustained grievous injury or the accused voluntarily

caused grievous hurt to him.

18. The material on record is sufficient to hold that

the appellant/accused No.1 has voluntarily caused hurt to

PW8, a public servant and also prevented or obstructed

PWs.1, 7 and 8 from discharging their duty. As such, the

appellant is liable to be convicted for an offence

punishable under Section 332 of IPC. Punishment

prescribed for the said offence is imprisonment of either

description for a term which may extend to three years, or

with fine, or with both.

19. The trial Court vide judgment dated

24.10.2009, having found accused No.1 guilty of the

offence punishable under Section 333 of IPC, considering

that he is aged under 21 years, initially extended the

benefit of Probation of Offenders Act 1958 and directed to

secure a report from the concerned Probation Officer. Till

receiving the report, the trial Court directed the accused to

be released on executing a self bond for Rs.10,000/- with

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cash surety for likesum or with two solvent sureties for

likesum subject to condition that he shall appear before

the Court as and when summoned. Subsequently, by an

order dated 29.8.2011, the trial Court relying on a

decision of this Court in State by Cubbon Park Police

Station, Bangalore v. Mohammed Sadiq reported in

2008(1)Kant. L.J. 294, wherein it is observed that it is

not just and proper to extend the benefit of P.O. Act,

1958, in favour of the accused, proceeded to convict the

accused for the offence punishable under Section 333 of

IPC and sentenced him to undergo simple imprisonment

for 3 years and to pay a fine of Rs.10,000/-, in default of

payment of fine, to further undergo simple imprisonment

for a period of 5 months.

20. It is submitted by the learned counsel for

appellant that the accused has undergone about one

month of imprisonment subsequent to his conviction and

sentence passed by the trial Court. He has therefore,

prayed to take a lenient view in the matter.

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21. The incident has taken place in the year 2006.

Almost 18 years have lapsed. Initially, the trial Court has

released the accused under the P.O. Act considering that

he was under 21 years at the time of incident. The said

order was passed on 24.10.2009.

22. This Court has come to the conclusion that the

accused is liable to be convicted under Section 332 of IPC

and not under Section 333 of IPC. Hence, considering the

facts and circumstances, the period of sentence already

undergone by the appellant can be held to be sufficient

and fine amount can be enhanced. Accordingly, the

following:

ORDER

i. Appeal is allowed-in-part.

ii. The conviction and sentence passed against the

appellant/accused No.1 by the Court of the Fast Track

Court-V, Mysore, in S.C.No.237/2006 dated 24.10.2009

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and 29.08.2011, for the offence under Section 333 of IPC

is hereby set aside.

iii. Appellant/accused No.1 is convicted for the

offence punishable under Section 332 of IPC.

iv. The period of imprisonment already undergone

by him is held to be sufficient.

v. He shall pay fine of Rs.15,000/- (Rupees fifteen

thousand only), in default of payment of fine, shall

undergo simple imprisonment for a period of 2 months.