Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 2 (KAR)

STATE OF KARNATAKA v. ANGADI SIDDAPPA

2000-01-03

B.S.SREENIVASA RAO, M.F.SALDANHA

body2000
M. F. SALDANHA, J. ( 1 ) AN interesting aspect of the law relating to the acceptability of expert evidence has fallen for determination in this criminal appeal. The short issue is as to whether, in the face of opinion evidence tendered by a doctor which has not been challenged in cross-examination, it would be open to the court to disregard this evidence if the record justifies such a procedure. For purposes of elaborating the circumstances under which this issue has arisen we briefly recount the facts. ( 2 ) ON 24-1-1991 at about 12. 30 in the afternoon the accused siddappa is alleged to have assaulted P. W. 1-sharanappa with a pickaxe which is really a wood cutting implement used by the villagers for cutting small branches etc. According to the prosecution, the background to the incident was that about three months earlier, sharanappa is alleged to have let loose his bullocks in the land of the accused who is his relation and this caused some damage, as a result of which there was an altercation which was still simmering. The accused inflicted one injury on the head and another on the thigh. There is no dispute about the fact that the injury on the thigh was a superficial one. Even the injury on the head which caused some bleeding as the tissue on the skull was cut open, was bandaged with cloth and it was only after quite some time that the injured went to the hospital for treatment. In the wound certificate that has been issued, the doctor has referred to the head injury as a case of grievous hurt because apart from the external cut, on a x-ray being taken a linear fracture of the occipital bone was detected. Though the doctor has been cross-examined, there is really no challenge presented in regard to the gravity of the injury as opined by the doctor who defined it as 'grievous'. The only evidence on record is that of the injured sharanappa who is P. W. 1 and whose evidence has been accepted by the court, though there is some corroboration to his evidence from p. w. 4-nagachari, a school teacher who had witnessed the incidence. The police had treated it as an offence under Section 324 of the IPC but the charge-sheet on the basis of the medical evidence indicated Section 326 of the IPC. The police had treated it as an offence under Section 324 of the IPC but the charge-sheet on the basis of the medical evidence indicated Section 326 of the IPC. The trial court convicted the accused under Section 326 of the IPC and sentenced him to pay a fine of Rs. 1,000/- in default, s. i. for two months. Out of the fine, a sum of Rs. 800/- was ordered to be paid as compensation to the complainant sharanappa. The state of karnataka has assailed the correctness of this order through the present appeal and has applied for enhancement of sentence. ( 3 ) AT the hearing of the appeal, we have reviewed the record and we have heard the learned state public prosecutor on behalf of the state and the learned Advocate Sri vijaya kumar on behalf of the respondentaccused. ( 4 ) THE principle argument put forward on behalf of the appellant- state is that Section 326 of the IPC prescribes a heavy sentence extendable upto 10 years r. i. and fine. The learned state public prosecutor submits that where the accused has been convicted under this Section it is mandatory for the court to award a jail sentence and that it is not only improper but in breach of the legal Provisions to only award a fine. secondly what the learned counsel submits before us is that Section 326 of the IPC prescribes relatively heavy punishments having regard to the fact that the offence is a comparatively serious one and that even though it may be open to the court to exercise judicial discretion depending on the nature of the injury and several other relevant factors that are taken into consideration while awarding sentences that it would constitute a gross miscarriage of Justice if inadequately low punishments are awarded and more importantly that it would send out the wrong signals, by creating not only an incorrect but a dangerous precedent. On behalf of the accused it was submitted that it is the absolute discretion of the court in the light of all attendant factors to award a sentence that is in consonance with the gravity of the offence and that no absolute standards can be pleaded. On behalf of the accused it was submitted that it is the absolute discretion of the court in the light of all attendant factors to award a sentence that is in consonance with the gravity of the offence and that no absolute standards can be pleaded. In principle, we are in absolute agreement with the submission canvassed by the learned state public prosecutor insofar as if abnormally light, lenient and what has been defined as 'flea-bite' sentences are awarded, it would constitute not only a miscarriage of Justice but more importantly an encouragement to the criminal which is one of the principal contributories to the breakdown of the law and order situation in many areas. The theory of sentencing clearly prescribes that after taking into consideration the relevant factors and circumstances, that the court has to award a sentence that is fair and correct. Also, we need to uphold the submission canvassed by the learned state public prosecutor that where a Section prescribes a sentence and a fine, it is open to the court to impose a fine in addition to the sentence, but it is not open to the court to do away with the sentence and only impose a fine. To that extent, the order of the trial court is clearly erroneous. ( 5 ) ON behalf of the respondent-accused, the learned Advocate did assail the correctness of the conviction and we have carefully considered his submissions because it is well-settled law that in an appeal for enhancement, the entire issue is wide open and it is permissible for the accused to argue in favour of an acquittal, even if no appeal has been preferred against the conviction. We, have however, taken into account the submissions canvassed and assessed the evidence in the light thereof but after doing so, we have no hesitation in holding that the evidence of P. W. 1 is unassailable, that it is supported by the evidence of P. W. 4 who is an independent witness and that the medical evidence corroborates the evidence of P. W. 1. The finding of the trial court to the effect that the accused was responsible for the injury caused to P. W. 1 will, therefore, have to be upheld. The finding of the trial court to the effect that the accused was responsible for the injury caused to P. W. 1 will, therefore, have to be upheld. ( 6 ) A submission was canvassed before us that the court has on record the wound certificate which unequivocally discloses the fact that the injury on the thigh was a very minor injury but as far as the injury on the head was concerned the respondent's learned Advocate submitted before us that this injury was also a very superficial injury which is evident from the fact that the injured person himself, merely bandaged it and did not even go to the hospital immediately. It is also pointed out to us that even after P. W. 1 went to the hospital that he was treated in the o. p. d. and sent away despite the fact that a precautionary x-ray was taken. The learned Advocate submitted that the trial court has overlooked all these factors while recording a conviction under section 326 of the IPC and he submitted that even assuming the accused has to be convicted that the conviction should be in consonance with the gravity of the injury and that it was incorrect on the part of the trial court to have mechanically accepted the doctor's opinion and invoked the Provisions of Section 326 of the IPC. ( 7 ) THE learned state public prosecutor has vehemently opposed any alteration of the head of conviction because he points out to us that the injury was inflicted with a pickaxe which would come within the category of a deadly weapon and secondly that the injury was inflicted on the head which is a vital part of the body and thirdly, he relies on the definition of grievous hurt as it appears in Section 320 of the IPC while submitting that as long as a fracture has occurred that the doctor was right in opining that it was a case of "grievous" hurt. He also submitted that the intention that is to be inferred from an act of this type where such a blow is aimed at the head is that the intention was unmistakably that of causing either death or grievous hurt. He therefore defended the invocation of Section 326 of the IPC by the trial court. He also submitted that the intention that is to be inferred from an act of this type where such a blow is aimed at the head is that the intention was unmistakably that of causing either death or grievous hurt. He therefore defended the invocation of Section 326 of the IPC by the trial court. ( 8 ) WE have carefully applied our minds to the legal position that emerges and while we have no hesitation in holding that invariably, a court will be guided by the opinion of an expert or a doctor what we need to record with equal emphasis is that it is well-settled law that opinion evidence is only persuasive and is not binding on a court. Many a time an expert overpitches the gravity of the situation and there are times when a court has to outright discard opinion evidence because, the facts as assessed in the light of the respective sciences do not justify such a conclusion. The present case is one such. Admittedly, the injury was inflicted with a pickaxe. We do not dispute again the fact that this weapon used with a high degree of force if aimed at a vital part of the body such as the head could cause a grievous or a fatal injury. If, however, force is limited as has happened in the present case and the injury that is caused is a relatively simple one, then, it is necessary for the court to discriminate and not to mechanically follow the opinion given by the doctor. It is true that Section 320 of the IPC refers to fractures and dislocations, but the spirit of that Section clearly indicates that the term 'fracture' is used in the connotation of breakage of a bone and that the court will have to make a slight distinction between such a situation and one where a hairline crack has occurred without causing any other serious damage or injury. In this case, it is clear that apart from a small cut on the scalp that there was no serious injury inflicted on P. W. 1 nor was there any corresponding internal injury caused which is obvious from the fact that P. W. 1 was not even admitted in the hospital or kept under observation, but was treated and was sent away. P. w. 1 does not complain of any aftermath of his injury and in this background it is our considered view that the trial court ought to have taken cognizance of these facts while categorising the nature of the injuries. It is in this background that we need to emphasise the important proposition that the trial judge while taking due note of expert evidence must independently assess that evidence just as the judge would assess all other evidence and if the opinion is unsustainable on the basis of facts and well-defined principles of medical jurisprudence, then it may be necessary to water down or discard the opinion. ( 9 ) WHILE we do accept the submissions of the learned state public prosecutor that the evidence does justify a conviction, on a correct evaluation of the injuries that were caused, in our considered view, the conviction would have to be altered to one under Section 324 of the IPC and to this extent, the submissions canvassed on behalf of the defence will have to be upheld. On the question of sentence, a strong plea has been advanced that the accused had given sufficient cause for the incident which was virtually in the nature of provocation but more importantly that the damage done was minimum, that 9 years have passed since the incident, that the accused is a middle-aged agriculturist and it was, therefore, submitted that this is not a fit case in which the court should impose a heavy sentence. While we do accept the submissions in principle, we need also to record that what the learned state public prosecutor has pointed out to us is a matter of consequence insofar as even though the actual injury that resulted was not too serious, that it is virtually a hair-splitting distinction insofar as with a slightly higher degree of force, the injury could have had dangerous repercussions and even too fatal. Having regard to this aspect of the case, in our considered view, it would be necessary to impose a sufficiently heavy fine on the accused taking into consideration the overall complexion of the case. ( 10 ) THE conviction recorded by the trial court is altered from one under Section 326 of the IPC to Section 324 of the IPC and it is directed that the accused shall pay a fine quantified at Rs. 6,000/ -. ( 10 ) THE conviction recorded by the trial court is altered from one under Section 326 of the IPC to Section 324 of the IPC and it is directed that the accused shall pay a fine quantified at Rs. 6,000/ -. The accused has already paid a fine of Rs. 1,000/- and he shall therefore pay the balance fine of Rs. 5,000/- within an outer limit of four months from today. If the accused commits default, the trial court shall recover the amount from the accused and it is directed that after recovery of the fine amount, the trial court shall issue notice to P. W. 1-complainant and pay a further sum of Rs. 4,200/- to him as compensation aggregating in all a compensation of Rs. 5,000/ -. The balance fine amount of Rs. 1,000/- shall stand appropriated to the state. ( 11 ) WITH these observations, the appeal which accordingly succeeds and stands disposed off. --- *** --- .