Court Government Pleader for respondent.
PW3-Yashwantha is entitled for a sum of Rs.65,000/-
towards the damages caused to their house.
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3. Facts in the nutshell for disposal of the appeal
are as under:
3.1. One Suresha S/o K.T. Kemparaju of Kamenahalli
Village, K.R.Nagara Taluk lodged an oral complaint at
about 10.30 pm., on 24.01.2007 which was reduced it to
writing by the K.R.Nagar Police vide Ex.P1. Allegations
found in the complaint reveal that there was a Grama
sabha in his village on 24.01.2007 and his senior uncle by
name K.T. Shanthappa had also participated in the Grama
sabha. Further, Shanthappa said to have urged to grant
the Ashraya Yojana houses to the poor and needy persons
of the village. There was a uproar in the sabha and on
account of the same, there was a commotion and
members who were assembled in the Grama sabha got
disbursed.
3.2. At about 7.30 pm., on the same day, accused
No.8-K.N.Basavaraju along with his henchmen came in a
group armed with deadly weapons and called Shanthappa
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out of his house and picked up the quarrel. They abused
him as to why he should raise such issues in the Grama
sabha. When Shanthappa tried to convince said
Basavaraju, Basavaraju got enraged and provoked his
followers to take away the life of Shanthappa. On hearing
such provocation from Basavaraju, remaining accused
persons started assaulting Shanthappa mercilessly. Among
them accused No.4-Kunta @ Mahadeva gave a first injury
on the chest of Shanthappa. He also assaulted Shanthappa
with a stone on his chest. Accused No.2-Shiva @ Shivanna
assaulted Shanthappa with an iron rod on the head of
Shanthappa. Accused No.5-Jayanna assaulted Shanthappa
on the shoulder with stone. Accused No.11-K.M. Srinivasa
said to have kicked on the private part of Shanthappa and
proclaimed that he should die. Yashwantha, Kalpana,
Manjunatha, Kalingamma, Prasanna Kumar tried to rescue
Shanthappa from the clutches of the accused group. The
accused group also attacked them with clubs and
choppers. As a result, the persons who have come to
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rescue Shanthappa also got injured and PW2-Kemparaju
sustained fracture injury.
3.3. Ultimately the quarrel was pacified by Ashok,
Cariyappa and other villagers. Immediately thereafter,
Suresha who is the son of K.T. Kemparaju, visited the
police station and lodged complaint vide Ex.P1. After
registering the case, police thoroughly investigated the
matter and filed the charge sheet inter alia arrested the
accused persons.
4. On receipt of charge sheet, learned Trial
Magistrate committed the case to the District Court,
Mysore. Learned Principal District Judge made over the file
to the Fast Track Judge.
5. Presence of the accused was secured before the
Sessions Court and charges were framed. Appellants and
other accused persons pleaded not guilty and therefore,
trial was held.
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6. In order to bring home the guilt of the
appellants, prosecution in all examined fifteen witnesses.
Among them PW.1 is the complainant, PW.2 to 10 are the
injured witnesses. Dr. Akhila and Dr. H. Ramachandra who
have examined the injured persons have issued the wound
certificate vide Ex.P5 to 13 were examined as PW.12 and
13 and remaining witnesses are the investigation agency.
Prosecution in all placed on record 17 documents which
were exhibited and marked as Ex.P.1 to 17 comprising of
complaint, spot mahazar, seizure mahazar, wound
certificates, FIR, spot sketch and serology report.
7. When the accused were arrested and taken to
the custody, based on the voluntary statement given by
the accused, weapons used in the incident were also
seized which were marked as MO.1 to 17 such as long,
two choppers, three clubs, eight stones, blood stain mud,
sample mud, cloths worn by the injured persons with
blood stain were also seized.
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8. On conclusion of recording of the evidence,
learned Trial Judge recorded the accused statement as is
contemplated under Section 313 of Cr.P.C., wherein
appellants and other accused persons have denied all the
incriminatory materials. They did not place their version
on record especially materials in the alleged counter case.
9. Thereafter, learned Trial Judge heard the
parties and on cumulative consideration of oral and
documentary evidence placed on record, by judgment
dated 25.06.2012, convicted the appellants and sentenced
as referred to supra.
10. Being aggrieved by the same, appellants are
before this Court, in this appeal.
11. During the pendency of the appeal, appellant
Nos.8 to 10 died and therefore, appeal against them
stands dismissed as abated.
12. Sri.N.Kumar, learned counsel for the appellants
reiterating the grounds urged in the appeal memorandum
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vehemently contended that conviction of the appellants for
the offence punishable under Section 326 of IPC, needs a
relook in the absence of cogent and convincing evidence
placed on record.
13. He would further contend that mere opinion of
Doctor who examined K.T.Kemparaju and issuing the
wound certificate vide Ex.P.11 would not be sufficient
enough to conclude that the appellants have committed an
offence under Section 326 of IPC and therefore, sought for
allowing the appeal.
14. Insofar as offence under Section 143, 144, 147,
148, 323, 324 read with Section 149 of IPC is concerned,
Sri.N.Kumar, learned counsel would contend that in the
grama sabha that was organized on 24.01.2007, without
any reason whatsoever, K.T.Shanthappa raised objection
with regard to the proceedings of the grama sabha
demanding allotment of Ashraya Yojana houses to the
needy persons.
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15. As such, there was an uproar in the grama
sabha resulting in a confusion among other members who
have participated in the grama sabha. K.T.Shanthappa
went to the extent of questioning the authority of the
elected grama panchayat members which ultimately
resulted in grama sabha being abandoned and members
who had participated in the sabha got disbursed.
Therefore, in the group clash, intention of the appellants
to commit the alleged crime cannot be attributed to the
appellants alone more so, having regard to the fact that
there was a counter case registered.
16. He would also impress upon this Court with
vehemence that in a matter of this nature, when the
prosecution is unable to place material evidence on record
to establish the genesis of the crime, appellants alone
could not have been convicted especially when the counter
case stood acquitted. Therefore, he sought for allowing
the appeal.
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17. Alternatively, Sri.N.Kumar, learned counsel
would contend that incident has occurred in the year 2007
and all the appellants have now grown up in their age and
are in a responsible positions in their personal life. At this
distance of time, if they are directed to join the prison,
dependants of the appellants would be put to untold
hardship. Therefore, sought for scaling out the offence
from 326 to 324 IPC and custody period of 27 days
already undergone by the appellants may be treated as
period of imprisonment by enhancing the fine amount
reasonably.
18. He also brought to the notice of this Court that
already appellant Nos.8 to 10 having died and other
appellants are also suffering from old age ailments, this
Court may sympathetically consider their case and pass
suitable orders.
19. Per contra, Sri.Channappa Erappa, learned High
Court Government Pleader supports the impugned
judgment.
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20. He contended that in the case on hand, nine
persons are injured and out of the nine persons, P.W.2 -
K.T.Kemparaju sustained grievous injury as per the wound
certificate which is marked at Ex.P.11.
21. To invite the attention of this Court as to the
seized material objects and marked before the Court as
MO.1 to 17 comprising of long, two choppers, three clubs
and eight stones shows that each one of the appellants
were not only present at the time of incident but they
have actively participated in the incident in assaulting
initially K.T.Shanthappa who raised objection in the grama
sabha and assaulted the kith and kin of K.T.Shanthappa
who came to rescue the K.T.Shanthappa from the clutches
of appellants. Therefore, prosecution is successful in
establishing necessary ingredients to attract the aforesaid
offences and thus, sought for dismissal of the appeal.
22. Insofar as alternate submission is concerned,
learned High Court Government Pleader would contend
that if any leniency is shown to the appellants, it would not
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only result in sending a wrong message to the society but
also would encourage similarly placed perpetrators of the
crime and thus, sought for dismissal of the appeal in toto.
23. Having heard the parties in detail, this Court
perused the material on record meticulously.
24. On such perusal of the material on record,
following points would arise for consideration:
1. Whether the material evidence placed on record by
the prosecution would be sufficient enough to
maintain the conviction of the appellants for the
offences punishable under Section 143, 144, 147,
148, 149, 326, 324, 323 and 427 read with Section
149 of IPC?
2. Whether the appellants make out a case of legal
infirmity or perversity in the finding of the guilt
recorded by the learned Trial Judge insofar as the
aforesaid offences are concerned?
3. Whether sentence needs modification?
4. What order?
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REG.POINT Nos.1 AND 2:
25. In the case on hand, very fact of filing a counter
case against the complainant party by the accused party
shows that both accused party and complainant party
were present at the time of incident that is in the evening
of 24.01.2007. Disruption of grama sabha has taken place
earlier to the ugly incident inasmuch as K.T.Shanthappa
raised certain question with regard to allotment of Ashraya
Yojana houses to the needy persons.
26. In the incident, as many as nine persons got
injured as per the wound certificate issued by the doctors
who examined the injured persons and wound certificates
were placed before the Court and exhibited as Exs.P.5 to
13. They would indicate that all the injured witnesses
were present at the time of incident and soon after the
incident, they were taken to the hospital and they have
been treated. Doctors who issued the wound certificates
are examined as P.W.12 and 13. Among the injured
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witnesses, K.T.Shanthappa was not examined by the
prosecution on account of his ill-health.
27. Among the injured witnesses, as per the wound
certificate, it is K.T.Kemparaju - P.W.2, who has sustained
grievous injuries inasmuch as doctor has noted fracture
injury in the middle finger of the right hand.
28. What is a grievous hurt is defined in Section
320 of 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 eye
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 sever
bodily pain, or unable to follow his ordinary pursuits."
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29. In order to prove the grievous injury, wound
certificate and author of the wound certificate would not
be sufficient especially in the absence of original x-ray film
or radiological report. Oral testimony of the author of the
wound certificate is in the form of opinion evidence.
Taking note of non-production of the x-ray film or the
radiological report only on the basis of the wound
certificate of K.T.Kemparaju marked at Ex.P.11, this Court
cannot accept the argument canvassed on behalf of the
prosecution to sustain the conviction of the appellants for
the offence under Section 326 of IPC.
30. View of this Court in this regard is supported by
the principles of law enunciated in the case of State v.
Sheenappa Gowda and Others reported in 2010 SCC
ONLINE KAR 5294 relevant portion of the said judgment
is culled out hereunder for ready reference:
"18. Therefore, the question for determination is
limited to find out whether the said injury No. 2 is
proved to be a grievous injury sustained by PW. 4. It is
well settled that in criminal cases, the burden of
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proving the guilt of the accused is always on the
prosecution and that burden would not shift unless
there is a presumption or defence as enumerated in the
Penal Code, 1860 is taken by the accused. In this case,
the defence taken by the accused is one of denial. It is
clear from the evidence of PW. 1 that he has given
description of injury on physical examination of PW. 4
and has come to the conclusion that there was fracture
of the middle phalanx. It is well settled that when the
prosecution alleges that grievous injury has been
caused, it is necessary for the prosecution to prove the
same beyond resonable doubt. The evidence of PW.1.
would only show that there was injury as described in
the wound certificate - Ex.P2. When PW. 1 suspected
such fracture, he ought to have referred the injured -
PW. 4 for taking X-ray to confirm his finding that there
is fracture of middle phalanx. It is now well settled hat
unless the prosecution produces the X-ray for
confirmation of 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 the accused has not disputed the
nature of injuries spoken to by PW.1. However, the
same would not dispense with the production the X-ray
by the prosecution to prove beyond reasonable doubt
that the injured had sustained fracture of middle
phalanx, which is an opinion given by PW. 1 Doctor only
on clinical examination of PW. 4, the injured. Therefore,
it is clear that the finding of the learned Sessions Judge
holding that the prosecution has failed to prove that the
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accused Nos. 1 to 3 and 5 have committed the offence
punishable under Section 326 of I.P.C. and the offence
committed by them falls within the ambit of Section
324 of I.P.C. is justified."
31. Thus, even though the prosecution is successful
in establishing the incident, wherein the appellants have
assaulted senior uncle of the complainant and other
injured persons as referred to supra, conviction of the
appellant for the offence punishable under Section 326 of
IPC needs to be relooked especially while exercising the
appellate powers.
32. It is settled principles of law and requires no
emphasis that in an appeal filed on behalf of the State or
by the accused, Appellate Court is having sufficient powers
to reassess the factual aspects and the legal aspects.
Powers of the Appellate Court is wide enough in this
regard even to reappeciate the documentary evidence
placed on record besides the oral testimony of the
prosecution witnesses.
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33. In the case on hand, what prevented the
prosecution to produce the original x-ray film or the
radiological report to substantiate that injury No.7 in
Ex.P.11 is pertaining to P.W.2 - K.T.Kemparaju is a
question that remains unanswered.
34. Thus, on reappreciation of the material
evidence on record, this Court is of the considered opinion
that conviction of the appellants for the offence under
Section 326 of IPC cannot be sustained and appellants are
entitled for acquittal for the offence under Section 326 of
IPC.
35. It is pertinent to note that acquittal of the
accused for the offence under Section 307 of IPC has not
been challenged by the State or the injured persons or
defacto complainant and therefore, the said finding has
become final.
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36. Taking note of above factual aspects of the
case, especially of non-production of x-ray film or
radiological report, this Court having acquitted the
appellants for the offence under Section 326 of IPC, is of
the considered opinion that material on record would be
sufficient enough to sustain the conviction of the
appellants for the remaining offences as per the impugned
judgment.
37. In view of the foregoing discussion, point Nos.1
and 2 are answered partly in the affirmative.
REG.POINT No.3:
38. Sri.N.Kumar, learned counsel for the appellants
contended that appellants are in advanced age in their life
and they have got families to maintain. Some of the
appellants are also suffering from old age ailments.
Therefore, he sought for modification of sentence by
directing the custody period already undergone to be
treated as period of imprisonment for the aforesaid proved
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offences by enhancing the fine amount reasonably.
Accordingly, point No.3 is answered partly in the
affirmative.
REG.POINT No.4:
39. In view of the findings of this Court on point
Nos.1 to 3 as above, following:
ORDER
i. Criminal appeal is allowed in part.
ii. Appellants are acquitted for the offence
punishable under Section 326 read with Section
149 of IPC and conviction of the appellants for
the remaining offences as per the impugned
judgment is maintained.
iii. Consequently, sentence is modified as under:
a. Custody period undergone by the appellants
for the proved offences except for the
offence under Section 326 of IPC, is to be
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treated as period of imprisonment by
enhancing the fine amount in respect all the
other proved offences in a sum of
Rs.20,000/- payable by each of the
appellants on or before 15.03.2025 failing
which they shall undergo simple
imprisonment for a period of one year.
b. Out of the enhanced fine amount
recovered, Kalingamma, Kalpana,
Manjunatha, Prasanna kumar are entitled
for compensation in a sum of Rs.15,000/-
each (Rs.5,000/- ordered by the learned
Trial Judge + Rs.10,000/- ordered by this
Court)
c. P.W.1 and 2 having been dead, they are not
entitled for any compensation. Even
though in the impugned judgment, P.W.1
and 2 are also ordered to get compensation
in a sum of Rs.5,000/- each.
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d. Payment of compensation as referred to
supra, will be in addition to sum of
Rs.65,000/- compensation ordered to
Yashavantha in the impugned judgment.
e. Balance of fine amount is to be
appropriated towards the defraying
expenses of the State.
Office is directed to return the Trial Court Records
with copy of this order for issue of modified conviction
warrant.
Sd/-
(V SRISHANANDA)
JUDGE
BN,KAV
Para 1 to 6 - BN
Para 7 to 39 - KAV
