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2022 DIGILAW 444 (KAR)

Krishnegowda v. State

2022-04-01

H.P.SANDESH

body2022
JUDGMENT : 1. Heard Sri. G.S.Balagangadhar, the learned Amicus Curiae for the petitioner and Smt.Rashmi Jadhav, learned High Court Government Pleader for the respondent-State. Perused the records. 2. The factual matrix of the case of the prosecution before the trial Court is that on 12/11/2006 at about 7.00 am near the house of the accused situated at Attimaranahalli Village within K.R. Pet town police limit, the P.Ws.1 and 2 went to the house of accused questioning him the act of harvesting the maize crop grown by the P.W.1 at his land, the accused picked up a quarrel with the P.W.1 and assaulted him with the iron chain inflicting the injury on his back, head and other parts of the body as well as assaulted on his right thumb inflicting grievous injury. It is also stated that, the accused also assaulted P.W.2 on his back, head and cheek causing simple injuries, when P.W.2 came to rescue of P.W.1 and hence, invoked the offence punishable under Ss. 326 and 324 of IPC. 3. The police have investigated the matter and filed charge sheet against the accused and secured the accused before the trial Court and accused did not plead guilty and claimed to be tried. Hence, the prosecution examined seven witnesses as P.Ws.1 to 7, among them P.W.1 and 2 are the injured witnesses; P.Ws.3 and 4 are eye witnesses; P.W.5 is the doctor who treated the P.W.1 and 2; P.W.6 is the mahazer witness and P.W.7 is an investigating officer. The prosecution got marked five documents as Ex.P1 to P5(a) and one material object as M.O.1. The trial Court after considering both the oral as well as documentary evidence, convicted the petitioner for the offences punishable under Ss. 326 and 324 of IPC and imposed fine of Rs.3,000.00 and Rs.2,000.00 respectively for the said offences and also awarded default sentence. 4. Being aggrieved by the judgment of the trial Court, the petitioner herein has filed a criminal appeal No.25/2010 before the Appellate Court. The appellate Court on reappriciation of the evidence, dismissed the appeal by confirming the judgment of the trial Court. Hence, present petitioner is before this Court. 5. 4. Being aggrieved by the judgment of the trial Court, the petitioner herein has filed a criminal appeal No.25/2010 before the Appellate Court. The appellate Court on reappriciation of the evidence, dismissed the appeal by confirming the judgment of the trial Court. Hence, present petitioner is before this Court. 5. Learned Amicus Curiae appearing for the petitioner in his argument, vehemently contended that the incident was taken place at 7.00 a.m. and Ex.P1- complaint discloses that the complaint was lodged at 10.00 am, on the very same day and he also brought to notice of this Court that an endorsement available in the FIR is submitted to the Court on the next day i.e., on 13/11/2006 along with the original complaint at 10.30 a.m. as such, there is a delay in sending the FIR. In the meanwhile, mahazar was conducted in terms of Ex.P2. But Ex.P2 - Mahazar was not placed before the Court immediately. The Amicus Curiae also vehemently contended that though the prosecution invoked the offence under Sec. 326 of IPC, X-ray is not produced before the Court. He further vehemently contended that P.W.6 is the mahzar witness regarding seizure of the weapon used for committing the offence, he has also not supported the case of the prosecution. Inspite of the same, the trial Court committed an error in convicting the petitioner and passed the sentence. With regard to the sentence also, learned Amicus Curiae contended that the injured P.W.1 and the accused are the brothers and it is also emerged in the evidence of P.W.1 that the partition was taken place about twenty years ago and there is a dispute with regard to harvesting of the crop and incident was suddenly taken place when the injured went to the house of accused-petitioner and questioned the act of the petitioner and also the same has not been considered by the trial Court as well as the appellate Court regarding sentence part is concerned and the sentence imposed is also too harsh and the nature of injury sustained by the P.W.1 is also fracture to the thumb but not on vital part and hence, requires interference of this Court. 6. Per contra, the learned HCGP appearing for the State would submit that P.Ws. 1 and 2 are the injured witnesses and in their cross examination, nothing has been elicited regarding the incident. 6. Per contra, the learned HCGP appearing for the State would submit that P.Ws. 1 and 2 are the injured witnesses and in their cross examination, nothing has been elicited regarding the incident. The P.Ws.3 and 4 are the eye witnesses and they are also supported the case of the prosecution and even, very presence of these witnesses was also not denied in the cross examination. The learned HCGP submits that the medical evidence i.e., P.W.5-Doctor categorically states that the injured came to the hospital within 45 minutes of the incident wherein also mentioned the name of the assailants within 45 minutes of the incident and hence, the delay in sending the FIR cannot go to the very route of the case of the prosecution. The P.W.6-investigating officer, on information registered the case on the very same day and conducted the spot mahazar on the very same day and mere sending of FIR belatedly on the next day not takes out the case of the prosecution. 7. Having heard learned Amicus Curiae appearing for the petitioner and so also the learned HCGP appearing for the State and also on perusal of the materials available on records, the points that would arise for consideration of this Court are: i. Whether the trial Court has committed an error in believing the evidence of prosecution witnesses and committed an error in convicting the accused for the offences punishable under Ss. 326 as well as 324 of IPC? ii. Whether the appellate Court has committed an error in confirming the judgment of conviction and order of sentence passed by the trial Court? iii. Whether the petitioner has made out the ground invoked the revisional jurisdiction regarding conviction and sentence? iv. What order? 8. Having heard learned Amicus Curiae for the petitioner and learned HCGP appearing for the State and also looking into the charges levelled against the petitioner that he inflicted injured-PW1 with the iron chain, as a result, P.W.1 sustained fracture to his thumb and P.W.2 also sustained simple injuries, out of the injuries, only one grievous injury i.e., fracture of thumb. Having heard learned Amicus Curiae for the petitioner and learned HCGP appearing for the State and also looking into the charges levelled against the petitioner that he inflicted injured-PW1 with the iron chain, as a result, P.W.1 sustained fracture to his thumb and P.W.2 also sustained simple injuries, out of the injuries, only one grievous injury i.e., fracture of thumb. The P.W.1 and 2 who are the injured witnesses have been cross examined and in the cross examination, nothing is elicited with regard to the incident is concerned and even not suggested that he has not sustained any such injury and also no such incident was taken place and only, a formal cross examination was made regarding distance of the house and topography of the place of the incident. In the cross examination of P.W.2, no doubt, a suggestion is made that the petitioner has not assaulted him or inflicted injury and the said suggestion was denied. Except this, nothing is elicited regarding the nature of the injury as well as incident is concerned. P.W.3 and 4 are also the eye witnesses and in their cross-examination also, nothing has been disputed with regard to they were not present at the spot and they have not witnessed the incident. The record disclosed that, the P.W.5-doctor who gave the treatment to the P.Ws. 1 and 2 at about 7.45 am on the very same day within 45 minutes of the incident and referred the patient-P.W.1 for taking X-Ray and based on the X-Ray, assessed the injury as a grievous injury and there was a fracture. 9. The Other witness P.W.6 regarding seizure of M.O.1, no doubt, he turned hostile partly but his evidence is clear that, police came to the spot i.e., at the house of P.W.1 and 2 and he has signed Ex.P2-mahazar and along with him one Boregowda was also present but he said that he has not seen the M.O.1 at the spot. But regarding mahazer is concerned, he admits, but seizure of M.O.1 is concerned, he turned hostile. But regarding mahazer is concerned, he admits, but seizure of M.O.1 is concerned, he turned hostile. The Court has to take note of the evidence of P.Ws.1 and 2 who are the injured witnesses and in their evidence, nothing is discredited regarding the incident as well as the injuries are concerned and cross examination of P.W.3 and 4 who are the eye witnesses also nothing is elicited with regard to they are giving evidence against the petitioner and they were having any enmity. But no cross-examination to the effect that they have not witnessed the incident and hence, evidence of P.Ws.1 to 4 corroborates each other with regard to the incident is concerned. Apart from that, the doctor who has been examined as P.W.5 before the trial Court, categorically states that he treated PWs.1 and 2 and noticed there is one grievous injury and the same is fracture and documents Ex.P3 and P4 are the wound certificates are marked in respect of P.W.1 and 2 and wherein even X-Ray number is also marked in Ex.P3. No doubt, X-ray is not placed before the trial Court, to that effect, nothing is suggested to the doctor-PW5. In the cross examination of PW5, except eliciting the answer that if any person falls from the vehicle on the rough surface of the land, there are chances of sustaining lacerated wound and even not disputed the nature of injury of the fracture in the cross-examination of P.W.1 and hence, very contention that X-ray is not produced takes the case of the prosecution and when there is no dispute with regard to the fracture is concerned in the cross-examination of P.W.5, the very contention of the counsel that no X-ray is produced and hence, the Court cannot come to a conclusion that Sec. 326 cannot be accepted. Hence, the same is not disputed by the cross-examination of PW5. 10. Having considered the evidence available on record i.e., evidence of P.Ws.1 and 2-injured witnesses and also the evidence of P.Ws.3 and 4-eye witnesses and also the evidence of PW5-doctor and also considering the finding of the trail Court particularly, in paragraph No.16, the trial Court assessed the evidence of the prosecution and taken note of evidence of P.Ws.1 and 2 and the evidence of P.Ws.3 and 4 and apart from the wound certificates-Ex.P3 and 4 also considered. The Court has taken note of nature of injury in paragraph No.17. The appellate Court also in the appeal, while reassessing the evidence available on record in paragraph-20, taken note of evidence and observed that in the cross-examination of these witnesses nothing is elicited and in order to disbelieve the evidence of prosecution witnesses, no answers are elicited and the same is also discussed in paragraphs No.21 and 22 and also taken note of evidence of P.W4 in paragraph No.23 and over all, assessed the evidence of the prosecution witnesses and also considered the evidence of P.W.5-doctor in paragraph No.25 and having reassessed the evidence, the appellate Court has rightly dismissed the appeal filed by the petitioner herein. 11. Learned Amicus Curiae for the petitioner submits that there was a delay in sending the FIR to the Court. On perusal of the record, there was a delay but the fact is that the injured persons went to the hospital immediately after the incident taken place i.e., within the 45 minutes of the incident and P.W.5-doctor treated P.Ws 1 and 2 within forty five minutes of the incident and the very negligence on the part of the I.O. in not sending the FIR on next day to the Court will not go to the route of the case. The materials before the Court discloses that the incident was taken place and immediately went to the hospital and took treatment and thereafter, lodged the complaint in terms of Ex.P1. Hence, contention of the learned Amicus Curiae cannot be accepted. 12. In order to exercise the revisional jurisdiction is concerned, the Court has to look into the material available on record and if perverse finding is given by the trial Court without considering the cogent evidence available on record, then, the Court can invoke the revisional jurisdiction and in order to finding with regard to the correctness is concerned, no such error is committed by both the Courts below and regarding legality aspects is concerned also, no dispute with regard to the nature of injury i.e., fracture to the thumb of the injured i.e., PW1 and the doctor also relied upon the X-ray and thereafter, come to the conclusion that it is a fracture and hence, I do not find any illegality and correctness in exercising the discretion while appreciating the evidence. 13. 13. Now, coming to the sentence part is concerned, no doubt, the P.W.1 and the accused are the brothers and it is emerged in the evidence that partition was taken place about twenty years ago and also incident was taken place with regard to the harvesting of the crop in the land of P.Ws.1 and 2 by this petitioner and hence, he inflicted injury with the iron chain and the injury is also not on the vital part and he had sustained fracture to his thumb and when such being the case, ought to have been taken note by the trial Court as well as appellate Court, while sentencing the petitioner. The trial Court imposed the sentence of two years and also the fine and two years of substantive sentence of imprisonment is too harsh and the same is not commensurate with the gravity of the offence and also failed to take note of the circumstances under which an incident has taken place and also failed to take note of the dispute between the brothers that too with regard to the harvesting the crop. The appellate Court has also not considered this aspect while considering the sentence part is concerned. 14. Learned Amicus Curiae at this juncture, would submit that this petitioner was in custody from 13/3/2013 to 6/4/2013, till the suspension of sentence by this Court and the same may be given set off invoking sec. 428 of Cr.P.C. Having considered the nature of injury and also the gravity of the offence and also the injury to the thumb and that is also a fracture and having considered the submission and the incident was taken place in the year 2006 and the period of almost three weeks in custody can be given as set off. 15. 428 of Cr.P.C. Having considered the nature of injury and also the gravity of the offence and also the injury to the thumb and that is also a fracture and having considered the submission and the incident was taken place in the year 2006 and the period of almost three weeks in custody can be given as set off. 15. Having considered the submissions and the incident was taken place in the year 2006 and the prosecution did not place any materials before the trial Court that the injured took treatment as an inpatient and in the absence of any inpatient records, there is a force in the submission of the learned Amicus Curiae that in-lieu of substantive sentence taking into note of the relationship between the parties and nature of injuries and circumstances under which the incident was taken place, it is appropriate to order to pay a fine of Rs.50,000.00 and the same is payable in favour of injured-P.W.1 on proper identification and the same would meet the ends of justice. 15. In view of discussion made above, I Pass the following: ORDER i. The Criminal Revision Petition is allowed in part. ii. The judgment of conviction for the offence punishable under Sec. 326 of IPC for a period of two years is given set off as the sentence already undergone for a period of three weeks and order to pay fine of Rs.50,000.00 and the same shall be deposited within six weeks. iii. On deposit, the trial Court is directed to pay the same in favour of PW1 on proper identification. iv. The sentence in respect of the offence under Sec. 324 of IPC is unaltered. v. If the petitioner fails to pay the said amount within six weeks before the trial Court, the petitioner to undergo sentence for a period of six months. Registry is directed to pay a fee of Rs.5,000.00 in favour of learned Amicus Curiae since he has assisted the Court. Registry is also directed to send the trial courts records forthwith.