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2022 DIGILAW 446 (KAR)

Lokesha v. State Of Karnataka

2022-04-01

H.P.SANDESH

body2022
JUDGMENT : 1. Heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the State. 2. The factual matrix of the case is that on 21/8/2019 at about 1.00 p.m., near the land of Koththi Puttaiah at Kempisiddanahundi village, with common intention, all the accused persons formed an unlawful assembly holding deadly weapons like chopper and machchu and committed an offence of rioting against PW1 and accused No.1 wrongfully restrained PW1 when he was proceeding in the motorcycle and caused grievous hurt to PW1 by chopper, as a result, PW1 had sustained injury to his right middle finger, accused Nos.3 to 5 caused simple injuries by chopper to the right foot, left arm and right elbow of PW1 and also intimidated PW1 with an intention to cause alarm to PW1. Based on the compliant, the police have registered the case for the offences punishable under Ss. 143, 147, 148, 341, 326, 324 and 506 read with Sec. 149 of IPC. The injured was taken to the hospital and took treatment firstly at Nanjangud hospital and thereafter at K.R.Hospital, Mysuru for a period of 16 days. The police after the completion of the investigation, charge-sheet has been filed. Accused persons have not pleaded guilty and hence, the prosecution in order to prove its case, examined the eleven witnesses as PW1 to PW11 and got marked the documents at Ex.P1 to P8 and also marked MO1 - three choppers. The petitioners have not led any defence evidence. The Trial Court after considering both the oral and documentary evidence convicted and sentenced the petitioners herein for all the offences. Being aggrieved by the order of the Trial Court, the petitioners have preferred an appeal in Crl.A.No.150/2012 and the Appellate Court also on re-appreciation of both the oral and documentary evidence, confirmed the order of the Trial Court and dismissed the appeal. Hence, the petitioners have filed the revision petition before this Court. 3. The learned counsel appearing for the petitioners would vehemently contend that the Trial Court as well as the Appellate Court have committed an error in convicting the petitioners and also not properly appreciated the evidence on record and even the prosecution has not placed any cogent material to prove that these petitioners have committed the alleged offences. 3. The learned counsel appearing for the petitioners would vehemently contend that the Trial Court as well as the Appellate Court have committed an error in convicting the petitioners and also not properly appreciated the evidence on record and even the prosecution has not placed any cogent material to prove that these petitioners have committed the alleged offences. The counsel also would vehemently contend that though the case of the prosecution is that PW1 has sustained injuries and fracture, in order to prove the same, x-ray is not marked before the Trial Court and inspite of that both the Courts have committed an error in convicting the petitioners herein. The counsel in support of his arguments, he relied upon the decision of the Division Bench this Court reported in (2011) 4 KCCR 2759 . The counsel referring the said judgment vehemently contend that this Court in paragraph 18 made an observation that it is the duty of the prosecution to place the xray to prove the factum of fracture and only the doctor on clinical examination of the injured, gave the opinion that he had suffered with the fracture. 4. Regarding sentence part is concerned, the counsel for the petitioners would contend that the Trial Court has committed an error in imposing the sentence for a period of two years for the offence punishable under Sec. 506 of IPC with fine and sentenced for a period of one year the offence punishable under Sec. 324 of IPC with fine and for a period of one year for the offence punishable under Sec. 148 of IPC along with fine and the same is also not considered by the Appellate Court. 5. The learned counsel appearing for the petitioners further submits that except the evidence of PW1, no other witnesses have supported the case of the prosecution and the Trial Court and the Appellate Court have considered only the evidences of PW1, PW6 and PW9 and the nature of the injury is also only a fracture to the middle finger not on any vital part of the body and the same will not affects the life of the victim and same also not been considered by the Trial Court. The counsel further submits that the motivation for committing the offence also, there was a civil dispute between the parties and the same is admitted in the cross-examination that there was an enmity between them. Hence, it is clear that with an intention to implicate these petitioners, a case has been registered taking an advantage of the injury sustained by PW1 selsewhere. The counsel also submits that in the medical evidence also, same is elicited with regard to sustaining of the said nature of injuries. 6. Per contra, the learned High Court Government Pleader appearing for the State would submit that the injured PW1 was examined before the Trial Court and his evidence is consistent with regard to the incident is concerned. Even PW2 who was along with PW1, not supported the case of the prosecution. The counsel would submit that other witnesses have categorically deposed that one women rushed to these witnesses and gave the information that some persons are trying to take away the life of PW1 and with that information, they went to the spot and they are not the eye-witnesses to the alleged incident and their evidences are circumstantial evidences and apart from that the evidence of PW6 and PW9 the doctors who treated the injured corroborates with the case of the prosecution and particularly the evidence of PW1. Hence, there are no grounds to interfere with the finding of the Trial Court and the Appellate Court also in detail even extracting the evidence of witnesses confirmed the judgment of the Trial Court. Hence, it does not requires interference of this Court. 7. Having heard the respective counsel appearing for the parties and also on perusal of the material on record, the points that would arise for consideration of this Court are: (1) Whether the Trial Court has committed an error in accepting the evidence of PW1 and other witnesses and erroneously convicted the petitioners for the charges leveled against them? (2) Whether the Appellate Court also committed an error in confirming the judgment of the Trial Court and whether this Court can exercise the revisional powers in respect of conviction as well as sentence? (3) What order? Points No.1 and 2: 8. (2) Whether the Appellate Court also committed an error in confirming the judgment of the Trial Court and whether this Court can exercise the revisional powers in respect of conviction as well as sentence? (3) What order? Points No.1 and 2: 8. Having heard the respective counsel appearing for the parties and also on perusal of the material on record, it discloses that, it is the case of the prosecution that on 21/8/2009 at about 1.00 p.m. when PW1 coming along with PW2 in the motorcycle, all these petitioners have wrongfully restrained PW1 and started abruptly assaulting him and witnessing the same, PW2 escaped from the spot and informed to the other witnesses and these petitioners after inflicting injury with chopper and club, left the place. The injured - PW1 who has been examined before the Trial Court reiterated his evidence that all these petitioners have wrongfully restrained him and assaulted him. PW1 categorically deposed that accused No.1 inflicted injury with chopper on his right shoulder and other accused - Prakash also assaulted with chopper and other accused persons assaulted with club and all of them left the place in coming to the conclusion that PW1 has lost his breath. It is his evidence that one Shambhu who was coming there, took him to the Nanjangud hospital and thereafter, he was shifted to the K.R.Hospital, Mysuru. He also identified his signature on the complaint - Ex.P1 and also he identified MO1. In the cross-examination, no doubt, it is elicited that there were cases between the complainant and the accused persons and they were not in cordial terms. It is suggested that the house of PW1 and petitioner No.2-Prabhuswamy are located by the side of the each house and the same was denied. But he categorically admits that the issue is with regard to the bath room. It is suggested that there was an ill-will and said suggestion was denied but he claims that in connection with his mother, frequent galata was taking place. In the cross-examination suggestion was made that not inflicted the injured with chopper and said suggestion was denied. No doubt, PW2 not supported the case of the prosecution and she completely turned hostile to the case of the prosecution. In the cross-examination suggestion was made that not inflicted the injured with chopper and said suggestion was denied. No doubt, PW2 not supported the case of the prosecution and she completely turned hostile to the case of the prosecution. PW3 says that a women suddenly rushed to the spot and stated that some persons are going to takeaway the life of PW1 and sought help to pacify galata. But the persons who were there at the spot, ran away from the spot and found injured at the spot and not found any weapons at the spot or the accused persons. Hence, this witness also turn hostile to the case of the prosecution. 9. PW4 is also another witness and he also deposed that one Ratnamma came and told that some persons were assaulting PW1 and sought for help, hence, he went and gave water and PW2 gave water to the injured. This witness also turned hostile in part. PW5 also categorically says that when he went to the spot, no assailants were there at the spot. PW6 is the doctor who treated the injured at K.R.Hospital and he says that x-ray was taken and in terms of x-ray, it discloses that PW1 had sustained fracture to his middle finger. In the cross-examination, only suggestion was made that if any person forcibly falls on the hard surface, the said injury could be caused. PW7 is only hearsay witness, he claims that the injured informed about the assault. PW8 is the scribe at Ex.P1 and he wrote the same as per the police instructions. PW9 is the doctor who treated at the first instance at Nanjangud hospital and he mentions that as per the history, Lokesh, Prakash and Prabhuswamy assaulted the injured and also mentioned the nature of the injuries and he says that immediately after the first aid, he was sent to the K.R.Hospital and x-ray discloses the fracture and the injuries are simple in nature. In the cross-examination, he deposed that if any person falls on the sharp edge object, there are chances of sustaining the similar type of injuries. He also admits that police have not accompanied with the injured. PW10 is the Investigating Officer who conducted the investigation and PW11 is the mahazar witness, he says that he does not know what they have written in the spot mahazar. 10. He also admits that police have not accompanied with the injured. PW10 is the Investigating Officer who conducted the investigation and PW11 is the mahazar witness, he says that he does not know what they have written in the spot mahazar. 10. Having considered the evidence available on record particularly, PW1 only speaks with regard to the assault made by these petitioners with chopper and club. PW2 not supported the case of the prosecution and other circumstantial witnesses i.e., PW3 to PW5 speaks with regard that PW2 rushed to them and sought for help stating that some persons were assaulting PW1 but they are not the eye-witnesses, they are circumstantial witnesses. Apart from that the evidences of PW6 and PW9 are clear that PW1 though sustained fracture as well as simple injuries - report of the K.R. Hospital discloses that injured was in the hospital from 21/8/2009 to 6/9/2009 as per Ex.P6. Hence, it is clear that he was inpatient for a period of 16 days and wound certificate at Ex.P8 discloses that the fracture on right middle finger and hence, it is clear that there is a fracture in the right middle finger. It is the contention of the counsel for the petitioners that when x-ray is not produced, the question of considering the fracture does not arise. In support of his contention, he relied upon the judgment of Division Bench of this Court reported in (2011) 4 KCCR 2759 and no doubt, the Division Bench of this Court in paragraph 18 made an observation regarding non-production of x-ray. But in the case on hand, it is observed that evidence of PW9 only shows that there was injury as mentioned at Ex.P8 and when PW9 suspected such fracture, he ought not to refer the injured to the higher centre. PW6 after taking x-ray confirmed that there was fracture. But here it is a case that he not only suspecting the fracture but also referred the injured to the higher centre. Evidence of PW6 that he has taken the x-ray and confirms the fracture and hence, the very citation will not comes to the aid of the petitioners. PW6 after taking x-ray confirmed that there was fracture. But here it is a case that he not only suspecting the fracture but also referred the injured to the higher centre. Evidence of PW6 that he has taken the x-ray and confirms the fracture and hence, the very citation will not comes to the aid of the petitioners. No doubt, it is the duty of the prosecution to produce x-ray but in the case on hand, witnesses who have been examined i.e., PW6 and PW9, categorically deposed that x-ray was taken and based on the x-ray report, they came to know that PW1 was sustained the fracture and same is evident in the document at Ex.P6 as well as Ex.P8 - wound certificate issued by both the hospital i.e., at Nanjangud hospital and K.R.Hospital at Mysuru where he took the treatment for a period of 16 days. 11. Having considered the evidence of PW1 and apart from that medical evidence of PW6 and PW9 as well as the other circumstantial witnesses, though PW2 turned hostile, the evidence of PW4 that PW2 rushed to them and sought for help to rescue the injured and these are the materials considered by the Trial Court. The Trial Court also in page Nos.24 and 25 considered the evidence available on record and the weapon used in inflicting the injury and also on taken note of the nature of injuries found at Ex.P8 which are cut lacerated wound and also the evidence of PW1 that the petitioners have inflicted him with chopper and oral evidence corroborates with the documentary evidence at Ex.P6 and P8. But the Appellate Court also on re-appreciation of both oral and documentary evidence, in detail considered the matter given anxious consideration meticulously and even extracted the evidence of witnesses and also the documents and rightly came to the conclusion that the prosecution has proved the case against the petitioners stating that they formed an unlawful assembly and wrongfully restrained PW1 and inflicted injury with chopper and also sentence was also confirmed having considered the material available on record and also on considering the reasons given by the Trial Court. Hence, I do not find any error committed by both the Courts. Both the Courts have given anxious consideration to both the oral and documentary evidence. Hence, I do not find any error committed by both the Courts. Both the Courts have given anxious consideration to both the oral and documentary evidence. This Court can exercise the revisional jurisdiction only if perverse finding are given by both the Courts or otherwise there is no ground to interfere with the finding of both the Courts. Hence, I do not find any error in appreciation of both the oral and documentary evidence by both the Courts. 12. Now coming to the sentence part is concerned, the Trial Court sentenced for the petitioners to undergo simple imprisonment for six months and fine of Rs.1,000.00 each for the offence punishable under Sec. 143 r/w Sec. 149 of IPC; one year rigorous imprisonment for the offence punishable under Sec. 148 r/w Sec. 149 of IPC with fine of Rs.1,000.00 each; one month simple imprisonment and fine of Rs.500.00 each for the offence punishable under Sec. 341 r/w Sec. 149; for a period of two years rigorous imprisonment and fine of Rs.10,000.00 each for the offence punishable under Sec. 506 r/w Sec. 149; and petitioner No.1 was sentenced to undergo rigorous imprisonment for two years with fine of Rs.10,000.00 for the offence punishable under Sec. 326 r/w Sec. 149 and petitioner Nos.3, 4 and 5 are sentenced to undergo rigorous imprisonment for a period of one year with fine of Rs.5,000.00 for the offence punishable under Sec. 324 r/w Sec. 149 of IPC. 13. Having considered the factual aspects of the case, no doubt, PW1 also admits that there was an ill-will between PW1 and the petitioners herein and also there was a civil dispute between the parties and having taken note of the nature of the injuries and the fracture on the right middle finger and not on the vital part of the body, this Court is of the opinion that the Trial Court committed an error in imposing rigorous imprisonment for substantive sentence of two years hence, it is appropriate to reduce the same for six months and the fine amount is unaltered. 14. 14. Regarding the sentence in respect of the offence punishable under Sec. 506 of IPC is concerned, rigorous imprisonment for a period of two years was imposed and the very evidence of PW1 before the Trial Court discloses that he has not stated anything about that the petitioners have caused threat to PW1 and the same is not appreciated by the Trial Court as well as the Appellate Court regarding causing intimidation is concerned. Hence, the Trial Court has committed an error in imposing two years of rigorous imprisonment as well as fine, hence, it requires interference of this Court and the same is set aside. 15. Regarding the offence punishable under Sec. 341 of IPC is concerned, it is specifically deposed that the petitioners have prevented PW1 when he was proceeding in the motorcycle and hence, I do not find any grounds to interfere with regard to fine imposed by the Trial Court for this offence. 16. The Trial Court also convicted petitioners for the offences punishable under Ss. 143 and 148 r/w Sec. 149 of IPC and in the evidence of PW1, he has not stated that all of them have formed an unlawful assembly with common intention and restrained him and when there is no common object, invoking the aforesaid Ss. does not arise. Hence, it requires interference of this Court to set aside the same. 17. Regarding invoking Sec. 324 of IPC is concerned, the specific evidence of the injured that other accused persons have inflicted injury with chopper as well as club and wound certificate discloses the cut lacerated wound and also other injuries and sentencing accused Nos.3, 4 and 5 for a period of one year is on higher side and the same is not commensurate with the nature of the injury and gravity of the offence and it requires interference. 18. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed in part. The conviction and sentence for the offence punishable under Ss. 143, 148, 506 r/w Sec. 149 of IPC are hereby set aside. The conviction in respect of offences punishable under Sec. 324, 326 is hereby confirmed and the sentence is reduced to six months from two years for the offence punishable under Sec. 326 and three months from one year for the offence punishable under Sec. 324 of IPC. 143, 148, 506 r/w Sec. 149 of IPC are hereby set aside. The conviction in respect of offences punishable under Sec. 324, 326 is hereby confirmed and the sentence is reduced to six months from two years for the offence punishable under Sec. 326 and three months from one year for the offence punishable under Sec. 324 of IPC. The fine imposed by the Trial Court is unaltered. The Trial Court is directed to pay an amount of Rs.25,000.00 in favour of PW1 and remaining amount of Rs.5,000.00 shall vest with the State. The sentence shall run concurrently.