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2016 DIGILAW 315 (KAR)

SHIVANNA v. STATE OF KARNATAKA BY HOLENARASIPURA

2016-03-30

A.V.CHANDRASHEKARA

body2016
ORDER : The present revision petition is filed under Section 397, Cr.P.C. challenging the judgment of conviction and sentence passed in C.C.59/08 by the learned civil judge at Holenarasipura and affirmed in Crl.A.15/10, a judgment passed by the presiding officer of fast track court at Holenarasipura. Petitioners have been convicted for the offences punishable under Sections 324 and 326 read with Section 34, I.P.C. and have been sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 326 read with Section 34, I.P.C. and also to pay a fine of Rs.1000/each, in default, to undergo two months simple imprisonment. They have been sentenced to pay a fine of Rs.1000/each for the offence punishable under Section 324, I.P.C. 2. This judgment of conviction dated 17.2.2010 passed in C.C.59/08 had been called in question by filing an appeal under Section 374, Cr.P.C. in Crl.A.15/10. The said appeal came to be dismissed after contest. It is these concurrent findings that are called in question in this revision petition on various grounds as set out in the memorandum of petition. 3. The case of the prosecution is that at about 12.00 midnight on 13.8.2006, CW1Thammagowda gave a statement to the police that CW10 (PSI) that at 10.00 p.m. on the previous day, when himself and his family members were sleeping, they heard the sound of stones being pelted at their house and some persons abusing them. When he opened the door, accused with picked up quarrel and assaulted on his left shoulder with a stone (M.O.2), When CW2 Mallegowda came to rescue him, Shivanna 1st accused assaulted him (CW2) on his head causing bleeding injuries. When Parvathamma (PW3) tried to interfere, the 3rd accusedManja hit her on her right knee. The further case of prosecution is that Javaregowda (4th accused) brought other accused from Bachenahalli village and instigated them to pick quarrel with CWs1 to 3. In the meantime, PW4 and PW2Mallegowda pacified them and all the injured persons were taken to Government Hospital, Holenarasipura and a case was registered against eight persons for the offences punishable under Sections 143, 147, 148, 323, 324, 326, 504, 114 read with Section 34, I.P.C. 4. In order to bring home the guilt of the accused, prosecution has examined 10 witnesses and got marked 6 exhibits and 3 material objects, viz., M.O.1chopper and M.Os.2 and 3 stones. In order to bring home the guilt of the accused, prosecution has examined 10 witnesses and got marked 6 exhibits and 3 material objects, viz., M.O.1chopper and M.Os.2 and 3 stones. The learned judge of the trial court has relied on the evidence of injured witnesses to come to the conclusion that injured witnesses will not leave out the real assailant in order to rope in persons unconnected with the case. He has relied on the evidence of the doctor who has opined that the fracture on the right frontal bone sustained by Mallegowda was ‘grievous hurt.’ Therefore, the learned judge has convicted all the petitioners and directed them to undergo imprisonment for the offence punishable under Sections 324 and 326, I.P.C. with the aid of Section 34 of IPC. The injuries sustained by Thammegowda and Parvathamma were simple in nature. 5. What is argued before this court by Smt.Sheela, learned counsel representing the petitioners is that the judgment of conviction for the offence punishable under Section 326, I.P.C. is not at all sustainable either in law or on facts since the doctor who has given evidence before the trial court, has not produced the CT Scan report which is the basis for his opinion. It is argued that mere evidence of the doctor cannot be considered as the beallandendall without there being any corroboration in material particulars. 6. Per contra, learned HCGP, Mr.Rachaiah has vehemently argued that there is no reason to disbelieve the version of injured witnesses coupled with the evidence PW10 Dr.Anitha Badani. It is argued that it was PW10 who examined all the witnesses on the midnight of the incident and there is no reason to disbelieve the same. The first information is marked as Ex.P1 which was submitted by Thammegowda who was also injured in the incident. 7. As rightly pointed out by the learned HCGP, the evidence of eyewitnesses cannot be lightly brushed aside and the trial court has attached much importance to their evidence. The medical certificate of CW1Thammegowda is marked as Ex.P6 which shows that he had sustained two injuries: (i) lacerated wound measuring 5 cm. x 2 cm. over the right maxilla and (ii) lacerated wound measuring 1 cm. x 2 cm. below the right eye. There is mention in Ex.P6 as follows: ‘CT dated 14.8.2006 at Hassan. Fracture on right frontal bone with bony chips in the surrounding area.’ 8. x 2 cm. over the right maxilla and (ii) lacerated wound measuring 1 cm. x 2 cm. below the right eye. There is mention in Ex.P6 as follows: ‘CT dated 14.8.2006 at Hassan. Fracture on right frontal bone with bony chips in the surrounding area.’ 8. It is the case of PW10 that Mallegowda was referred to Government Hospital, Hassan. Nothing came in the way of PW10 to have placed the CT scan report referred to in the wound certificateEx.P6. Even otherwise, the I.O. could have collected the report and produced it along with Ex.P6the medical certificate. The impression found in the CT scan report is the basis for PW10 to opine that the injured had sustained fracture on the frontal bone and therefore it was ‘grievous hurt.’ 9. What is deposed to by PW1Thammegowda is that the 1st accused Shivanna took a chopper and assaulted near his right eye. He was the best person to have spoken about the injuries sustained by him. His evidence is silent with regard to the nature of injuries sustained by him. 10. Section 320, I.P.C. defines ‘grievous hurt.’ The seventh category of ‘hurt’ speaks about fracture or dislocation of bone or tooth. The evidence of the doctor will have to be assessed as that of any other evidence and there is no presumption to the effect that evidence of a doctor is gospel truth. Principles to this effect have been succinctly explained by the Hon’ble apex court in the case of MAYUR .v. STATE OF GUJARATH (1982 Crl.L.J. 1972). 11. The court has to see the nature and dimension of the injury and the damage that it has caused. Even if the injury is described, the court has to apply its mind and form an opinion based on the nature of injuries and other relevant factors that weigh. 12. The learned judge of the trial court has attached much importance to the evidence of PW10, the doctor on the ground that she is a Government doctor and was discharging her duties lawfully as a public servant. Just because PW10 was a doctor, it does not give leverage to the court to give a specific opinion that the injuries sustained by Mallegowda was ‘grievous’ within the definition of Section 320, I.P.C. The rigor of Section 326, I.P.C. will have to be kept in mind. Just because PW10 was a doctor, it does not give leverage to the court to give a specific opinion that the injuries sustained by Mallegowda was ‘grievous’ within the definition of Section 320, I.P.C. The rigor of Section 326, I.P.C. will have to be kept in mind. The maximum punishment for the offence punishable under Section 324 can extend upto 3 years or with fine or with both. Whereas the punishment contemplated for the offence punishable under Section 326, I.P.C. can extend up to 10 years and also with fine. Normally the minimum sentence contemplated will not be less than 2 years. Even a small fracture of a bone could be the basis for conviction under Section 326, I.P.C. In this view of the matter, courts are expected to meticulously examine the medical evidence before coming to the conclusion as to whether the offence made out is punishable under Section 326 or not. Therefore, the very approach adopted by the trial court regarding evaluation of medical evidence in respect of Thammegowda is not correct and proper. 13. The learned judge of the first appellate court has relied on the inability of the accused to prove their defence. The cardinal principle in regard to the burden of proof in criminal cases is that the prosecution has to prove its case beyond all reasonable doubt. What is ‘reasonable doubt’ is eloquently explained by the Hon’ble apex court in the case of STATE OF U.P. v. KRISHNAGOPAL (AIR 2008 SC 2154). Inability of the accused to probablise their evidence will not strengthen the case of the prosecution. If the accused is able to probablise his defence, then the court will give him the benefit of doubt. The learned judge of the first appellate court has not critically evaluated the medical evidence so far as the injuries sustained by Mallegowda is concerned. Therefore, this court is of the opinion that the learned judge of the trial court and first appellate court are not justified in convicting the accused for the offence punishable under Section 326, I.P.C. 14. Suffice to state that the materials placed on record are not strong enough to convict the accused for the offence punishable under Section 326 I.P.C. and therefore, their conviction on that count will have to be set aside. However, their conviction for the offence punishable under Section 324, I.P.C. will have to be upheld. Suffice to state that the materials placed on record are not strong enough to convict the accused for the offence punishable under Section 326 I.P.C. and therefore, their conviction on that count will have to be set aside. However, their conviction for the offence punishable under Section 324, I.P.C. will have to be upheld. Enhancing the amount of fine from Rs.1,000/each to Rs.2,000/each will meet the ends of justice. 15. In the result, the following order is passed: ORDER I) The revision petition filed under Section 397, Cr.P.C. is allowed in part. II) The judgment of conviction and sentence imposed on the petitioners for the offence punishable under Section 326, I.P.C. by the trial court in C.C.59/08 and affirmed by the first appellate court in Crl.A.15/10 is set aside. III) The judgment of conviction imposed on them for the offence punishable under Section 324 read with Section 34, I.P.C. is upheld. The sentence of fine is enhanced from Rs.1,000/each to Rs.2,000/payable by each of the accused. IV) Out of the total fine amount of Rs.8,000/, a sum of Rs.4,000/shall be paid to witness Mallegowda and Rs.2,000/each shall be paid to Thammegowda and Parvathamma. The petitioners are granted 30 days time to pay or deposit the fine amount before the trial court, lest, the trial court can recover the same under Section 421 of Cr.P.C.