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2019 DIGILAW 659 (KAR)

Srinivas Reddy v. State Of Karnataka

2019-03-15

RAVI MALIMATH

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JUDGMENT : Ravi Malimath, J. The case of the complainant is that on 26-5-2009 at about 9.45 a.m., when PW.1 Venkatesh Reddy was travelling in a bus, accused No. 1 Srinivasa Reddy, dragged him out of the bus, caught hold of his shirt, abused him in a filthy language with relation to the death of his sister Lakshmi. Accused No. 1 took him to Dasara Thimmanahalli village; all the accused formed an unlawful assembly by holding deadly weapons like club, stone, hammers, with common object confined PW. 1 by tying him to a pole, assaulted PW. 1 Venkatesh Reddy all over his body with an intention to commit his murder and other accused also assaulted him. Based on the complaint lodged by the injured, the case was registered under Sections 143, 147, 148, 323, 324, 342, 504 & 307 read with Section 149 I.P.C. Investigation was taken up. A charge sheet was laid. In order to prove its case, the prosecution examined eight witnesses and marked 4 exhibits along with 5 Material Objects. The trial court convicted accused Nos. 1, 2 & 7 and sentenced them as follows:- "Accused Nos. 2 & 7 are convicted under Section 235(2), Cr.P.C., 1973 for the offences punishable under Sections 323, 324, 504 read with Section 34, IPC. Accused Nos. 2 & 7 are sentenced to pay fine of Rs. 250/- (rupees two hundred and fifty) each for the offence punishable under Sections 323, 324, 342, 504 IPC (i.e.., each accused shall pay Rs. 1,000-). In default, they shall undergo simple imprisonment for a period of one (1) month each. Accused No. 1 is convicted under Section 235(2) Cr.P.C., 1973 for the offences punishable under Sections 323, 324, 342, 504, 326 read with Section 34 IPC. Accused No. 1 is sentenced to pay fine of Rs. 250/- (rupees two hundred and fifty) each for the offence punishable under Sections 323, 324, 342, 504, IPC (i.e, accused shall pay Rs. 1,000/-). In default, he shall undergo simple imprisonment for a period of one (1) month. Accused No. 1 is sentenced to undergo simple imprisonment for a period of one( 1) year and sentenced to pay a fine of Rs. 1,000/- for the offence punishable under Section 326, IPC; in default, he shall undergo further simple imprisonment for a period of one (1) month." 2. Aggrieved by the same, accused Nos. Accused No. 1 is sentenced to undergo simple imprisonment for a period of one( 1) year and sentenced to pay a fine of Rs. 1,000/- for the offence punishable under Section 326, IPC; in default, he shall undergo further simple imprisonment for a period of one (1) month." 2. Aggrieved by the same, accused Nos. 1,2 & 7 have filed this appeal. The learned counsel for the appellants contends that the impugned order of the trial Court is erroneous and liable to be interfered with. That the trial court failed to consider the evidence and material on record. That the injuries cannot be said to be vital inasmuch as there is no medical evidence like the x-ray report which have been marked by the prosecution. There is nothing to indicate the injury to the complainant. The trial Court has wrongly convicted the accused. He further contends that the accused No. 1 herein had filed a case in Criminal Miscellaneous 77 of 2010 which was tried by the very trial Judge in SC No. 39 of 2010. By the order dated 9th August, 2010 the accused was convicted for the offence punishable under Section 323, 324 and 506 of IPC and sentenced to undergo Simple Imprisonment for 2C days along with payment of fine of Rs. 250/-for each offence under Sections 323 and 324 of IPC. He was also convicted for the offence punishable under Section 506 of IPC and sentenced to undergo simple imprisonment for a period of one month along with payment of fine od Ea.500/-. Therefore, he pleads that even though the said judgment was not marked as an exhibit, the trial Court should have considered the same. Therefore, this fact has also not been considered by the trial Judge. He contends that the prosecution has not proved its case beyond all reasonable doubt, that accused Nos. 1, 2 & 7 brutally assaulted the complainant. 3. The learned State Public Prosecutor contends that even though the prosecution has established its case beyond all reasonable doubt, the trial Judge has taken an extremely lenient view so far as the sentence is concerned. He pleads that the sentence awarded is also inadequate. 4. Heard learned counsels and examined the records. 5. (a) PW.1 is the injured complainant. He has stated that he married the sister of accused No. 1. She died 3 years prior to the incident. He pleads that the sentence awarded is also inadequate. 4. Heard learned counsels and examined the records. 5. (a) PW.1 is the injured complainant. He has stated that he married the sister of accused No. 1. She died 3 years prior to the incident. Secondly, accused No. 1 had filed a complaint in SC No. 20 of 2009 for offence punishable under Section 304B of IPC which was pending consideration on the date of passing of the impugned judgment. On 26-52009 at about 7.30 a.m. he left Pathakoti and went to Punganur Cross and was waiting for a bus to go to Ramasandra. Accused No. 1 was also travelling in the said bus. When the bus came near Thimmasandra Gate, accused No. 1 picked up a quarrel with him with regard to the death of his sister and took him to Dasathimmahalli village. He tied him to a pole. Accused No. 1 assaulted him with a hammer, accused No. 2 with a club on his knee, accused No. 7 with a stone. The remaining accused also assaulted him all over his body. He fell down. Srinivasapura Police came to the spot and untied him. He was admitted to the Government Hospital, Srinivasapura and thereafter to SNR Hospital, Kolar. He was in the hospital for about 15 days. Thereafter he filed the complaint at Ex.P-1. He has also identified MOs. 1 to 5 Various suggestions were made to the witness through cross-examination. (b) PW.2 states that he was also travelling in the bus. Except some minor discrepancies, the remaining part of the evidence has not been shaken in the cross examination. PW.2 has deposed that he accompanied PW.1 on the date of the incident. That when they reached Dasathimmahalli, accused No. 1 dragged the complainant from the bus, caught hold of his shirt, abused him in a filthy language and assaulted him. Thereafter, he tied him to the pole in Dasathimmahalli village. Accused No. 2 assaulted with a club on his neck. Accused No. 1 assaulted with a hammer on his head. Accused No. 7 assaulted with a stone on his body. The other accused assaulted PW. 1 on various parts of his body. Thereafter he was admitted to Government Hospital, Srinivasapura. Nothing worthwhile has been elicited in the cross-examination to disbelieve his evidence. (c) PW.3 is a witness to the mahazar. He has supported the case of the prosecution. Accused No. 7 assaulted with a stone on his body. The other accused assaulted PW. 1 on various parts of his body. Thereafter he was admitted to Government Hospital, Srinivasapura. Nothing worthwhile has been elicited in the cross-examination to disbelieve his evidence. (c) PW.3 is a witness to the mahazar. He has supported the case of the prosecution. (d) PW.4 is a panch witness to Ex.P-2, the spot Mahazar. He has also supported the case of the prosecution. Nothing worthwhile has been elicited in the cross examination to disbelieve his evidence. (e) PW.5 is the Doctor. He has stated that 26-5-2009 at about 1.00 p.m., he examined the complainant. He found contusion, swelling on the hands, knee etc. He has issued a wound certificate as per Ex.P-3. He opined that injury No. 3 is grievous as it is fracture of the left elbow. (f) PW.6 is the Sub-Inspector who conducted the investigation. He registered the criminal case against the accused. He went to the spot and prepared the spot mahazar and recorded the statement of the witnesses. The evidence of the eyewitnesses, PW.1 the injured complainant as well as PW.2 clearly indicates the overt act attributed against accused for each offence for having assaulted PW.1 the complainant. Since the reference has been made of accused No. 1, nothing worthwhile has been elicited to disbelieve their evidence. 6. Ex.P-3 is the wound certificate issued by PW.5. - the Doctor. He has clearly narrated that the complainant sustained 6 injuries over his body. Injury No. 3 is stated a grievous injury since it is fracture of the left elbow. That material is sufficient to hold that the injury has been caused on the complainant. The medical evidence supports the evidence of PWs. 1, 2 & 3. It is also supported by the opinion of the Doctor in terms of Ex.P-4. The Doctor has opined with regard to the injuries sustained by PW. 1. Merely because, x-ray and other report as stated by the appellant's counsel are not produced cannot be a ground to hold that the injury itself has not occurred. In view of the evidence of PW.5 -the Doctor, the wound certificates Exs.P-3 & 4 I am of the view, that the prosecution has established its case beyond all reasonable doubt. 7. Merely because, x-ray and other report as stated by the appellant's counsel are not produced cannot be a ground to hold that the injury itself has not occurred. In view of the evidence of PW.5 -the Doctor, the wound certificates Exs.P-3 & 4 I am of the view, that the prosecution has established its case beyond all reasonable doubt. 7. The learned counsel for the appellant further submits that the sentence awarded is far too harsh and requires to be reduced. However, on considering the reasons, I do not find it appropriate to interfere with the sentence. Accused No. 1 has been sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 326 of IPC and in default to undergo simple imprisonment for a period of one month and for the remaining offence, the accused were sentenced for a period of one month. Keeping in view the injuries caused to the complainant and that the grievous injury were caused by accused No. 1, 1'am of the view that a most minimal sentence has been awarded on the accused especially accused No. 1. The sentence provided for the offence punishable under section 326 of Cr.P.C., 1973 is for a maximum of 10 years and also fine. The sentence awarded being appropriate, I do not find any ground to interfere with the same. 8. For all the aforesaid reasons, the appeal being avoid of merit, is dismissed. (i) The judgment & order dated 9/25-8-2010 passed by the I Additional Sessions Judge, Kolar, in S.C. No.9 of 2010 is confirmed. (ii) The bail-bond of accused No. 1 is cancelled. Surety is discharged. (iii) The appellant No. 1 is directed to be taken into custody forthwith. Appeal dismissed.