2. Appellant has been convicted by the Special Judge in Spl.
It is made clear that in view of the proviso to sub section
(1) of Section 421 Cr.P.C., even if the accused undergoes
the default sentence, he is not absolved of his liability to
pay the fine amount.
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The period spent by the accused as an under trial
prisoner shall be given set off against the sentence now
imposed.
M.O.1 is confiscated."
3. The facts in nutshell for disposal of the appeal are as
under:
Smt. Baby, a woman belonging to Scheduled Caste and
accused being a person belonging to Kodava community, were
known to each other. The victim was staying in the servant's
quarters of one Uthappa who was also called as 'Commissioner
Uthappa', situated in Hattihole within the limits of Somwarpet
Police Station.
4. On 06.07.2009, in the evening, the victim/complainant
had been to the shop of C.W.5-B.S.Lingappa for purchase of
some house hold articles. Accused who was present in the
shop said to have asked the victim to come to his land for
labour Work which was being refused by the victim. She also
mentioned that she has already joined the estate of
Commissioner Uthappa. On hearing the said refusal, accused
got enraged and said to have abused the victim in filthy
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language taking out her caste name to degrade her in the
public view.
5. The accused also assaulted the victim with kathi which
was in his hand resulting in injury being caused to the victim.
6. When the victim lady cried for help, her son-Muthappa
and shop keeper-B.S.Lingappa and the chance witness by name
James rescued her from the clutches of the accused and
pacified the quarrel.
7. A complaint came to be lodged in this regard on
07.07.2009 after the victim was treated in the Government
Hospital, Somwarpet.
8. After registering the case for the offence punishable
under Sections 324, 326, 506 of the Indian Penal Code and
under the provisions of Section 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
police thoroughly investigated the matter, inter alia arrested
the accused and filed the charge sheet.
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9. The learned Special Judge took cognizance of the
aforesaid offences and framed the Charge. Accused pleaded
not guilty and therefore, trial was held.
10. In order to bring home the guilt of the accused, eight
witnesses were examined as P.Ws.1 to 8, comprising of victim-
Smt. Baby, her son -Sri M.Muthappa, Sri E.Ashraf-panch
witness, Sri Francis-witness, shop keeper-B.S.Lingappa, chance
witness-James Santha Meyar, Dr.Venkatesh who treated the
victim on 07.07.2009 and issued the wound certificate vide
Ex.P.6, and Sri M.Narayana, Deputy Superintendent of Police.
11. The prosecution, in all, placed eight documents on record
which were exhibited and marked as Exs.P.1 to 8 comprising of
complaint, spot mahazar, statements of prosecution witnesses
who did not support the case of the prosecution, wound
certificate, caste certificates of the accused and the
complainant. The weapon used in the incident is seized and
marked as M.O.1 before the Trial Court.
12. On conclusion of recording of the evidence, learned Trial
Judge recorded the accused statement as is contemplated
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under Section 313 of the Code of Criminal Procedure, wherein,
accused has denied all the incriminatory materials, but did not
chose to place any written submission on record as is
contemplated under Section 313(4) of the Code of Criminal
Procedure nor lead any defence evidence.
13. Thereafter, learned Trial Judge heard the parties in detail
and by virtue of the impugned judgment, convicted and
sentenced the accused as aforesaid.
14. Against the Order of acquittal of the appellant for the
Charge under Section 506 of the Indian Penal Code and Section
3(1)(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, State or the victim did not
chose to file any appeal and therefore, it has become final.
15. Sri V.Srinivas, learned counsel for the appellant,
reiterating the grounds urged in the appeal memorandum,
vehemently contended that the conviction of the appellant for
the offence punishable under Sections 324 and 326 of the
Indian Penal Code is incorrect, inasmuch as, the prosecution
evidence is hardly sufficient to maintain the conviction of the
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appellant for the aforesaid offences, in the absence of any
independent witness supporting the case of the prosecution.
16. He brought to the notice of the Court that there was
delay in lodging the complaint and P.W.5 did not support the
case of the prosecution in toto, so also, P.W.6. Therefore, self
serving testimony of P.W.1 ought not to have been relied upon
by the learned Trial Judge for recording the Order of conviction
for the aforesaid offences and sought for allowing the appeal.
17. Alternatively, learned counsel for the appellant contends
that in the event this Court believing the oral testimony of
P.W.1 coupled with the testimony of P.W.7-Doctor who issued
Ex.P.6-wound certificate, at the most, offence punishable under
Section 324 would get attracted and not the offence under
Section 326 of the Indian Penal Code and sought for allowing
the appeal to that extent.
18. He would further submit that consequently this court may
treat the period of custody already undergone by the appellant
as the period of imprisonment for the offence punishable under
Section 324 of the Indian Penal Code by enhancing the fine
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amount reasonably and sought for allowing the appeal to such
extent.
19. Per contra, Sri Channappa Erappa, learned High Court
Government Pleader supports the impugned judgment.
20. He would further contend that even though there is a
day's delay in lodging the complaint, same is explained by the
prosecution by placing cogent evidence on record.
21. Admittedly, P.W.1 being a lady, went home after she
sustained injury and being unable to bear the pain, visited the
government hospital, wherein, x-ray taken and there is a
fracture noted by the Doctor. Therefore there is delay in
lodging the complaint which did not cause any serious dent to
the case of the prosecution nor there was any material on
record to show that accused has been falsely implicated in the
incident.
22. He would further contend that there is a voluntary act of
committing the assault on the victim by the accused as could
be seen from the complaint averments and oral testimony of
P.W.1 by use of M.O.1. Therefore, prosecution is successful in
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placing such material evidence on record which is sufficient in
maintaining the conviction of the appellant for the offence
punishable under Sections 324 and 326 of the Indian Penal
Code.
23. He would further contend that the Doctor who is
examined as P.W.7 did not nurture any previous enmity or
animosity against the appellant nor extra affinity towards the
victim to give false wound certificate and therefore, conviction
is to be maintained and appeal needs to be dismissed.
24. Having heard the parties in detail, this Court perused the
material on record meticulously.
25. On such perusal of the material on record, the following
points would arise for consideration.
(i) Whether the material evidence available on
record would be sufficient enough to
maintain the conviction of the appellant for
the offence punishable under Sections 324
and 326 of the IPC?
(ii) Whether the appellant makes out a case that
the impugned judgment of convicting
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appellant is suffering from legal infirmity,
perversity and thus calls for interference?
(iii) Whether the sentence needs modification?
(iv) What Order?
26. REGARDING POINT Nos.1 AND 2: In the case on hand,
incident has occurred on 06.07.2009 near the shop of
B.S.Lingappa who has supported the case of the prosecution, in
part, by examining himself as P.W.5 stands established.
Admittedly, James and B.S.Lingappa are the persons who are
no way related to the complainant, whereas, P.W.2-Muthappa
is the son of the complainant/victim.
27. Sri B.S.Lingappa, has stated before the Court that he was
not in station on the date of the incident. However, in the
cross-examination, the statement that has been given to him
has been confronted to him which has been proved through the
Investigation Officer who did not nurture any previous enmity
with the accused.
28. Further, the incident according to the prosecution has
occurred when P.W.1 refused to come for the labour work in
the estate of the accused. She has also stated that she is
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already working in the estate of Uthappa @ Commissioner
Uthappa. Being enraged by the same, appellant said to
assaulted with M.O.1 on the hand of P.W.1/victim/complainant.
29. These aspects of the matter when viewed cumulatively,
why unnecessarily P.W.1 would implicate the accused in a false
case is a question that remains unanswered. When there is
total denial and there is no other version that has been placed
on record by the accused, the version to the extent that
prosecution has been able to establish before the Court is to be
believed.
30. Further, there is application of judicious mind into the
case of parties inasmuch as the learned Special Judge has
acquitted the appellant for the offence punishable under
Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, so also under Section 506
of the Indian Penal Code.
31. Further, the Doctor who issued the wound certificate did
not nurture any previous enmity or animosity against the
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appellant or extra affinity towards the complainant, so as to
issue false wound certificate vide Ex.P.6.
32. He has examined the injured and thereafter took x-ray.
No doubt, x-ray and radiological report are not placed on
record. Learned Sessions Judge simply placed his reliance on
Ex.P.6 while classifying the injury as grievous injury which is a
opinion evidence of Doctor.
33. Said approach of the learned Sessions Judge cannot be
countenanced inasmuch as for establishing the grievous hurt
especially fracture injury prosecution is bound to place on
record the original x-ray or the radiological report.
34. View of this Court in this regard is fortified by the
principles of law enunciated by the Division Bench of this Court
in the case of State v. Sheenappa Gowda reported in (2011)
4 KCCR 2759, wherein it has been held as under:
11. 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 proving the guilt of the accused is always on the
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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 reasonable 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,
he same would not dispense with the production
the X-ray by the prosecution to prove beyond
reasonable doubt that the injured had sustained
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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 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."
35. Therefore, to the extent that the conviction of the
appellant for want of original x-ray or the radiological report
except Ex.P.6, convicting the appellant for the offence
punishable under Section 326 of the Indian Penal Code needs
relook and same needs to be set-aside.
36. Admittedly, blood injury has been caused to the body of
P.W.1 and therefore, offence is punishable under Section 324 of
the Indian Penal Code. Accordingly, point Nos.1 and 2 are
answered partly in the affirmative.
37. REGARDING POINT No.3: In view of the finding of this
Court on point Nos.1 and 2 as above, especially, scaling down
the offence from Section 326 to 324 of the Indian Penal Code,
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custody period already undergone by the appellant if treated as
period of imprisonment by enhancing the fine amount in a sum
of Rs.50,000/- which can be paid as compensation to the
victim, ends of justice would be met. Accordingly, point No.3 is
answered partly in the affirmative.
38. REGARDING POINT No.4: In view of the finding of this
Court on point Nos.1 to 3 as above, the following:
ORDER
(i) The Criminal Appeal is allowed in part.
(ii) While maintaining the conviction of the appellant
for the offence punishable under Section 324 of the
Indian Penal Code, conviction for the offence
punishable under Section 326 of the Indian Penal
Code is hereby set-aside.
(iii) Consequently, sentence is modified as under:
(a) Custody period already undergone by the
appellant is treated as period of
imprisonment by enhancing the fine amount
in a sum of Rs.50,000/- payable by the
appellant on or before 25th March 2025,
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failing which, appellant shall undergo simple
imprisonment for a period of six months.
(b) After receipt of enhanced fine amount of
Rs.50,000/-, Rs.25,000/- is ordered to be
paid as compensation to P.W.1 under due
identification.
(iv) Office is directed to return the Trial Court Records
with copy of this judgment, forthwith, for issuing
modified conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
