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2022 DIGILAW 737 (KAR)

State v. Monnappa Gowda

2022-06-13

G.NARENDAR, M.I.ARUN

body2022
JUDGMENT 1. Aggrieved by the judgment and order dtd. 24/11/2014 passed by the V Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, sitting at Puttur, Dakshina Kannada, in Criminal Appeal No.52/2007 acquitting the accused for the offence punishable under the provisions of Sec. 326 of IPC, the State has preferred this appeal. 2. For the sake of convenience, the parties are referred to as per their status before the trial court. 3. The case of the prosecution is that on 8/12/1998 at about 7.30 p.m. at Kadira of Murulya village, Sullia Taluk, accused nos.1 to 4 with a common intention voluntarily caused hurt to PW.1 - Monappa Gowda and PW.2 - Pergade Gowda and to criminally intimidate PW.4 - Smt. Yamuna, accused nos.2 and 3 have voluntarily caused grievous hurt to PW.2 armed with sickles M.O.4 to M.O.6, which were used as weapon for the offence likely to cause death and thereby caused grievous hurt and accused no.1 voluntarily caused hurt to PW.1 with sickle and accused no.4 caused hurt to PW.1 with club M.O.1, which were used as deadly weapons and thereby caused simple injuries and insulted PW.4 by using abusive words and provoked her to commit breach of peace and in furtherance of their common intention criminally intimidated PW.4 by uttering the words and giving life threat to cause hurt to her husband and thereby committed the offences punishable under the provisions of Sec. 504 , 324 , 326 , 506 r/w 34 of IPC . 4. Trial took place before the Civil Judge (Jr.Dn.) and JMFC, Sullia. In order to prove its case, the prosecution has examined in all 12 witnesses - PWs.1 to 12 and got marked the documents - Exs.P1 to Ex.P7 and material objects - M.O.1 to M.O.6 were marked. The accused have not examined any witnesses. The trial court, by judgment dtd. 23/5/2003 in C.C.No.564/1999, convicted accused nos.1 to 4 for the offences punishable under Ss. 504 , 324 and 326 r/w 34 of IPC and acquitted them for the offences punishable under sec. 506(II) of IPC. Aggrieved by the same, Criminal Appeal No.39/2003 was filed by the accused before the Fast Track Court-I, D.K., Mangalore. The trial court, by judgment dtd. 23/5/2003 in C.C.No.564/1999, convicted accused nos.1 to 4 for the offences punishable under Ss. 504 , 324 and 326 r/w 34 of IPC and acquitted them for the offences punishable under sec. 506(II) of IPC. Aggrieved by the same, Criminal Appeal No.39/2003 was filed by the accused before the Fast Track Court-I, D.K., Mangalore. The First Appellate Court on the ground that the statement under Sec. 313 of Cr.P.C was not recorded has set aside the said judgment of the trial court and remanded the matter back to the trial court by judgment dtd. 18/9/2006. Thereafter, by judgment dtd. 19/2/2007 in C.C.No.564/1999, the trial court has convicted all the accused for the offences punishable under Ss. 324 and 326 r/w 34 of IPC and acquitted them for the offences under Sec. 504 and 506 r/w 34 of IPC and has sentenced them as mentioned below: "ORDER The accused No.1 to 4 are convicted for the offence Under Sec. 324 read with 34 I.P.C . and each of them are sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000.00 in default simple imprisonment for a further period of 2 months. The accused No.1 to 4 are convicted for the offence under Sec. 326 IPC and the accused No.1 and 4 are sentenced to undergo simple imprisonment for a period of 2 years and to pay a fine of Rs.5,000.00 each in default simple imprisonment for two months and accused No.2 and 3 are sentenced to undergo rigorous imprisonment for a period of two years, and to pay fine of Rs.5,000.00 each in default simple imprisonment for a further period of two months for the said offence. Both the sentences shall run concurrently. Out of the fine amount a sum of Rs.15,000.00 is ordered to be paid as compensation to P.W.2 - Pergade Gowda and a sum of Rs.5,000.00 is ordered to be paid as compensation to P.W.1-Monappa Gowda as per Sec. 357 Cr.P.C. The bail and surety bonds of the accused stand cancelled. Office is directed to supply a free copy of the judgment to the accused. M.O.1 to M.O.6 being worthless are ordered to be destroyed after the appeal period." 5. Office is directed to supply a free copy of the judgment to the accused. M.O.1 to M.O.6 being worthless are ordered to be destroyed after the appeal period." 5. Aggrieved by the same, all the accused preferred an Appeal before V Additional District and Sessions Judge, Dakshina Kannada, Mangalore, sitting at Puttur, Dakshina Kannada by way of Criminal Appeal No.52/2007. The First Appellate court, by judgment and order dtd. 24/11/2014, has partly allowed the appeal filed by the accused. The order passed by the First Appellate Court reads as under: "ORDER The criminal appeal filed by the appellants/accused Nos.1 to 4 U/Sec.374 of Cr.P.C ., is hereby partly allowed. The impugned Judgment of conviction and order of sentence passed by the Learned Civil Judge (Jr.Dn.) and JMFC., Sullia, D.K. in C.C.No.564/1999 dtd. 19/2/2007, is hereby partly confirmed. The conviction judgment and order of sentence passed against the accused Nos.1 to 4, for the offence punishable U/sec.326 of IPC , is hereby set aside. The conviction judgment passed against the accused Nos.1 to 4 for the offence punishable Under Sec. 324 read with Sec. 34 of IPC, is hereby confirmed. The order of sentence imposing fine and imprisonment for the said offences, is hereby modified that the accused Nos.1 to 4 shall pay fine of Rs.10,000.00 each for the offence punishable Under Sec. 324 read with 34 of IPC , in default to pay fine amount they shall undergo Simple Imprisonment for a period of 3 months. Their bail bond and surety bond shall stand cancelled. After deposit of the fine amounts, Rs.21,000.00 shall be paid to the injured/PW-2 and Rs.9,000.00 shall be paid to the injured complainant/PW-1. Send back the LCR to the Court below along with the copy of this Judgment for information." 6. Aggrieved by the same, the State has preferred the present appeal with a prayer to convict the accused for the offences punishable under Sec. 326 of IPC by confirming the judgment and order of sentence passed by the Civil Judge (Jr. Dn.) and JMFC, Sullia dtd. 19/2/2007 passed in C.C.No.564/1999. 7. We have heard learned HCGP for the appellant/State and learned counsel for the respondents/accused nos.1 to 4. 8. The trial court apart from holding the accused guilty of the offences punishable under Sec. 324 r/w 34 of IPC has also found them guilty of the offence punishable under Sec. 326 of IPC. 19/2/2007 passed in C.C.No.564/1999. 7. We have heard learned HCGP for the appellant/State and learned counsel for the respondents/accused nos.1 to 4. 8. The trial court apart from holding the accused guilty of the offences punishable under Sec. 324 r/w 34 of IPC has also found them guilty of the offence punishable under Sec. 326 of IPC. It is not the case of the prosecution that the alleged offences took place at different point of time. It is one incident of the accused assaulting the injured which has resulted in the injured suffering both simple and grievous injuries. The accused have challenged the findings of the trial court before the First Appellate Court. The First Appellate Court, after appreciating the evidence on record, has come to the conclusion that the prosecution has proved the presence of accused nos.1 to 4 at the place of incident and the injuries caused by accused persons by means of M.O.1 and M.O.4 to M.O.6 and injured PWs.1 and 2 were taken to hospital for treatment. However, based on the evidence, the First Appellate Court has doubted the severity of the injury and has acquitted the accused for the offence punishable under Sec. 326 of IPC. 9. The present appeal is filed only by the State and the accused have not challenged their conviction for the offence under Sec. 324 r/w 34 of IPC . Thereby, they admit the happening of the incident i.e. they are guilty of voluntarily causing hurt by dangerous weapons or means to the victims and the common intention. Thus, the only question that needs to be considered in the instant appeal is whether the victims suffered grievous hurt. 10. The case of the prosecution is that the wound certificate - Ex.P7, deposition of Doctor - PW.10 and the injured witness - PW.2 proves that PW.2 suffered grievous hurt and the First Appellate Court erred in appreciating the said evidence and has erroneously acquitted the accused for the offence punishable under Sec. 326 of IPC. 11. Per contra, the learned counsel for the respondents/ accused nos.1 to 4 justified the findings of the First Appellate Court and prays for dismissal of the appeal. 12. Further, the accused and the victims have presented themselves before the Court. 11. Per contra, the learned counsel for the respondents/ accused nos.1 to 4 justified the findings of the First Appellate Court and prays for dismissal of the appeal. 12. Further, the accused and the victims have presented themselves before the Court. The learned counsel for the accused submitted that they are residents of same place and the incident took place way back in the year 1998 and since then there is no animosity between the parties and they have been living harmoniously and the accused are willing to compensate the victims, if need be and prayed that the Court take a lenient view in the matter. 13. The question that arises for consideration in the instant appeal is whether the First Appellate Court erred in appreciating the evidence insofar as it relates to the victims suffering grievous injury. 14. Ex.P7 is the wound certificate of PW.2. The incident took place at about 7.30 p.m. on 8/12/1998. The Doctor - PW.10 who has issued the wound certificate at Ex.P7 has initially examined the injured PW.2 at about 3.30 a.m. on 9/12/1998 and Ex.P7 records that PW.2 has suffered 13 wounds out of which 6, 7 and 8 are said to be grievous in nature and they are mentioned hereunder: 6) Amputation of right index finger at the proximal phalanx. 7) Fracture of the right middle finger (torn) the proximal IP joint, distal portion of finger hangs on the skin tag. 8) Incised wound 2 cm * one cm depth * 1/2 cm width on the right index finger with middle phalanx with fracture of middle phalanx. 15. The Doctor has been examined as PW.10 and he has reiterated the records in Ex.P7 - wound certificate. His statement that PW.2 had suffered the injuries when he examined him initially has not been impeached. Similarly, the evidence of PW.2 regarding grievous injury sustained by him has not been impeached. Hence, the trial court has found the accused guilty of the offence punishable under Sec. 326 of IPC. However, the First Appellate Court has erred in concluding that the evidence is not satisfactory and has erroneously acquitted the accused for the offence punishable under Sec. 326 of IPC. It is not the finding of the First Appellate Court or the contention of the accused that the incident did not take place or it did not involve dangerous weapons. However, the First Appellate Court has erred in concluding that the evidence is not satisfactory and has erroneously acquitted the accused for the offence punishable under Sec. 326 of IPC. It is not the finding of the First Appellate Court or the contention of the accused that the incident did not take place or it did not involve dangerous weapons. The trial court has found that wooden stick and sickle were used in the assault to PWs.1 and 2 by the accused which resulted in the injuries. The fact of the accused using the wooden stick and sickle in the assault on PWs.1 and 2 has been upheld by the First Appellate Court and the same is not challenged in this appeal. As already stated above, the First Appellate Court has committed an error in appreciating the evidence and came to the conclusion that the accused are not guilty of committing an offence punishable under Sec. 326 of IPC, and hence, the appeal deserves to be allowed. 16. Given the peculiar facts and circumstances of the case wherein the accused and victims are known to each other and they have reconciled and the accused are willing to compensate the victims, the following order is passed: ORDER (i) The appeal is allowed; (ii) The impugned judgment and order of the V Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, Sitting at Puttur, Dakshina Kannada, in Criminal Appeal No.52/2007 insofar as it relates to acquitting accused nos.1 to 4 for the offence punishable under Sec. 326 of IPC is hereby set aside; (iii) Accused nos.1 to 4 are convicted for the offence punishable under Sec. 326 of IPC and each of them are sentenced to undergo simple imprisonment for a period of seven days and to pay a fine of Rs.1,00,000.00 (Rupees One Lakh only) each in default, they shall undergo simple imprisonment for a further period of two years; (iv) Accused nos.1 to 4, who are on bail, shall be taken into custody forthwith; (v) Out of the fine amount ordered by this Court, Rs.3,95,000.00 (Rupees Three Lakhs Ninety Five Thousand only) is ordered to be paid as compensation to PW.2 - Pergade Gowda under the provisions of Sec. 357 of Cr.P.C.