Karnataka High Court
Suresha vs State Of Karnataka on 13 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 742 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.742 OF 2016
BETWEEN:
SURESHA
S/O PINNAIAH
AGED ABOUT 41 YEARS,
R/A MUKKADAHALLY VILLAGE,
HARAVE HOBLI,
CHAMARAJANAGARA TALUK & DISTRICT-571301
...PETITIONER
(BY SMT. KALPANA P V, AMICUS CURIAE
Digitally signed V/O DT.30.01.2025)
by DEVIKA M
Location: HIGH AND:
COURT OF
KARNATAKA
STATE OF KARNATAKA
BY RURAL POLICE STATION,
CHAMARAJANAGARA
REP. BY ITS PUBLIC PROSECUTOR-571301
...RESPONDENT
(BY SMT. PUSHPALATHA B, ASPP)
THIS CRL.RP IS FILED U/S.397 & 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
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CRL.RP No. 742 of 2016
CONVICTION AND SENTENCE AND FINE DATED
28.03.2012 PASSED IN C.C.NO.35/2011 ON THE FILE OF
THE CIVIL JUDGE (SR. DN.) AND CJM, CHAMARAJANAGAR
AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel appearing for the
respective parties.
2. This petition is filed against the order of
conviction and sentence in respect of the offences
punishable under Sections 323 and 326 of IPC against
accused No.1/petitioner wherein the Trial Court sentenced
the petitioner to pay a fine of Rs.1,000/- for the offence
punishable under Section 323 of IPC in default to pay fine
amount, shall undergo simple imprisonment for three
months and in respect of offence punishable under Section
326 of IPC is concerned, imposed fine of Rs.5,000/- and
simple imprisonment for two months and in default of
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payment of fine amount, shall undergo for simple
imprisonment for nine months and the First Appellate
Court in Crl.A.No.47/2012 filed by the State, sentence for
the offence punishable under Section 326 of IPC is
enhanced to two years instead of two months and upheld
the fine of Rs.5,000/- against accused No.1.
3. The factual matrix of the case of the
prosecution that on 19.10.2009 at about 9.30 p.m., when
the victim was attending the nature call, at that time,
accused No.1/petitioner came and abused in a filthy
language and picked up a quarrel with the victim and
kicked to his leg, as a result, he fell down and at that time,
accused No.1 assaulted with the stone on the hip of
victim, as a result, he sustained fracture on hip and he
was inpatient and took the treatment. Based on the
complaint, the police have investigated the matter and
filed the charge-sheet against this petitioner along with
other persons. The Trial Court considering the evidence of
PW1 who is an injured, PW9 - doctor as well as other
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witnesses and taking into note of material on record,
convicted this petitioner in respect of offence punishable
under Sections 323 and 326 of IPC. Being aggrieved by
the said order, an appeal was preferred by the State
before the First Appellate Court and the First Appellate
Court confirmed the judgment of the Trial Court and
sentence in respect of offence under Section 326 of IPC is
enhanced to two years against two months.
4. The main contention of the learned Amicus
Curiae who appears before the petitioner before this Court
is that both the Courts have committed an error in
appreciating the material on record. The Amicus Curiae
would vehemently contend that the injured witness
evidence is alone in the case on hand and further submits
that though PW1 says that CW4, CW6 and CW8 witnessed
the incident, all of them deposed that they came to the
spot after hearing the hue and cry and they have
witnessed the incident and doctor evidence is also very
clear that if any person falls on the hard surface, this type
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of injury will be caused and the very defence of the
petitioner is also that while running away from the spot,
he fell down and sustained injuries and the said defence is
probable defence that while running from the spot, he fell
down and sustained injuries and not assaulted him. Hence,
this Court has to set aside the judgments of both the
Courts.
5. Per contra, learned Additional State Public
Prosecutor for the State would submit that P.W.1 is the
injured witness. The prosecution relied upon other witness
and particularly P.W.9, who deposed before the Court that
injured came at around 10.30 p.m. in connection with
assault and he had sustained injury on the right hip and
he was admitted to the hospital and x-ray was taken and
in terms of x-ray, superior pubic rami was fractured, but
no dislocation. Injury No.1 is grievous in nature and
injury No.2 is simple in nature and issued wound
certificate in terms of Ex.P4. In the cross-examination, it
is elicited that injuries are grievous in nature and also
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suggestion was made that, if any person falls on the hard
surface i.e., on the stone, he may sustain injuries like
Ex.P4 and the same is admitted. She would also submit
that injured P.W.1 is an eye witness and he is also an
neighboring witness and evidence of C.W.1 disclose that
accused only assaulted him. Hence, they sent him to the
hospital. He turned hostile and suggestion was made that
when C.W.1 fell down, at that time, accused had assaulted
with stone and the evidence of P.W.1 as well as P.W.10
coupled with the evidence of P.W.9-Doctor is clear that he
sustained injury on account of assault. Though P.W.1 says
that P.W.8 is also an eye witness, he did not support the
case of the prosecution. She also submits that the Trial
Court rightly convicted the accused and the First Appellate
Court having considered the nature of injury, since the
sentence not commensurate with the gravity of the
injuries enhanced the sentence. Hence, it does not require
any interference.
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6. Having heard learned Amicus Curie for the
petitioner and learned Additional State Public Prosecutor
for the respondent-State, the points that would arise for
consideration of this Court are:
(i) Whether both the Courts committed an
error in convicting the accused for the
offence punishable under Sections 323
and 326 of IPC and whether the First
Appellate Court committed an error in
sentencing him for a period of two years
and whether it requires interference of
this Court?
(ii) What order?
Point No.(i)
7. Having heard learned Amicus Curie for the
petitioner and learned Additional State Public Prosecutor
for the respondent-State and considering the material on
record, as per Ex.P1-complaint, incident has taken place at
9.30 p.m. Having considered the evidence of P.W.1, he
says that accused No.1 kicked him, as a result, he fell
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down and he took the stone and assaulted with the same
which is marked as M.O.1 and accused Nos.2 to 4, who
came to spot at that time abused him in a filthy language
and instigated accused No.1 and this incident was
witnessed by C.Ws.5, 6 and 8 and they pacified galata and
thereafter, his parents and his wife took him to police
station and the police advised him to take him to the
hospital. In the cross-examination, he categorically admits
that at the time of incident, his family members were
inside the house and Basavaraju and Nagaiah are
neighborers.
8. The other witness is P.W.10 and having
considered his evidence, he says that he came to know the
incident of assault with stone through C.W.1. But in the
cross-examination, when he was treated as hostile, he
says that when C.W.1 fell down, at that time, the accused
No.1 assaulted him with stone. He denies the suggestion
that no galata has taken place between the accused and
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the complainant and nothing is elicited in the cross-
examination of P.W.10 that he was present at the spot.
9. P.W.9 is the Doctor, who says that within a
span of one hour of the incident, the injured was brought
to the hospital at around 10.30 p.m. and he treated him
and found injury on the right gluteal region and he was
having pain. Hence, he was referred to the Doctor for x-
ray and x-ray report says that he had sustained fracture of
superior pubic rami, but there was no dislocation. No
doubt, suggestion was made that, if any person falls on
the hard surface i.e., on the stone, the nature of injuries
mentioned in Ex.P4 would be caused, the same was
admitted . But, the fact is that when the incident has
taken place at 9.30 p.m., immediately he went to the
police station and police advised to take him to the
hospital and immediately, he was taken to the hospital
within a span of one hour of the incident and he gave the
history in the hospital that accused No.1 assaulted him.
No doubt, there is a variance in the evidence of other
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witness, C.W.10 says that he found that he was lying at
the spot, when he went to the spot. But, the Court has to
take note of the nature of injuries.
10. It is also important to note that the family of
the complainant and the accused were not in good terms
and there was animosity and the same has also emerged
during the course of evidence and motive of committing
the assault is also that they were not in cordial terms.
When such being the material on record i.e., the evidence
of P.Ws.1 and P.W.10 and also medical evidence, I do not
find any error committed by the Trial Court and
confirmation of the same by the First Appellate Court
regarding conviction and sentence is concerned.
11. With regard to the sentence is concerned, the
same is modified by the First Appellate Court enhancing it
for a period of two years. While enhancing the same, the
First Appellate Court has given the reason that offence
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under Section 326 IPC is punishable with life imprisonment
or 10 years and fine and Trial Court has convicted accused
No.1 and sentenced him to undergo only two months
imprisonment and the same has to be enhanced. The Trial
Court taking note of the fact that superior pubic rami of
the P.W.1 was fractured due to the assault made by the
accused with stone, enhanced the sentence for a period of
two years. Having considered the reasoning of the First
Appellate Court and also the material on record, the
wound certificate which is marked as Ex.P4 only specify
regarding the nature of injuries. The injured went to the
hospital at 10.30 p.m., but for how long he was treated as
inpatient in the hospital, nothing is mentioned and also on
perusal of evidence of P.W.9-Doctor also, except stating
that he was treated as inpatient, he has not stated as to
for how long he was treated and there no medical records
before the Court to that effect.
12. No doubt, there is a fracture, there is no
dislocation and the same is evident from the evidence of
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P.W.9-Doctor. Having taken note of the nature of injury
i.e., fracture that too, the accused No.1 assaulted with
stone, it is the specific case also that when he kicked the
accused No.1, at that time, he suddenly took stone at the
spot and assaulted with stone and accused also not carried
the same and took the stone which was lying at the spot
and assaulted with the same and there was no intention to
cause such injury, however P.W.1 has sustained a
fracture. Hence, taking note of said fact into
consideration, it is appropriate to reduce the sentence
from two years to six months, since they are neighborers
and they were not in cordial terms and galata has taken
place and incident has taken place in the year 2009.
However, the fine amount is enhanced from Rs.5,000/- to
Rs.50,000/-.
Point No.(ii)
13. In view of the discussion made above, I pass
the following:
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ORDER
(i) The criminal revision petition is allowed in
part.
(ii) The sentence imposed by the First
Appellate Court for a period of two years
is reduced to six months as observed
above, subject to enhancement of fine
amount from Rs.5,000/- to Rs.50,000/-.
Out of the fine amount of Rs.50,000/-,
Rs.40,000/- is ordered to be payable to
the P.W.1 and the remaining amount of
Rs.10,000/- shall vest with the State.
(iii) The Registry is directed to pay the fee of
Rs.5,000/- to the Amicus Curie, who
appeared on behalf of the petitioner.
Sd/-
(H.P.SANDESH)
JUDGE
SN/ST
