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2022 DIGILAW 854 (KAR)

A. A. Subramani v. State of Karnataka

2022-07-05

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT Dr. H.B. Prabhakara Sastry, J. - The present petitioner was tried as accused by the Court of learned Prl. Civil Judge (Jr. Dn.), & J.M.F.C., Madikeri, (hereinafter for brevity referred to as the 'trial Court') in C.C. No. 357/2007, for the offence punishable under Section 326 of Indian Penal Code, 1860 (hereinafter for brevity referred to as the 'IPC') and was convicted by its judgment of conviction and order on sentence dated 17.10.2007 and was sentenced accordingly. Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No. 89/2007, before the Fast Track Court, Kodagu at Madikeri, (hereinafter for brevity referred to as the 'Sessions Judge's Court'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 27.08.2012. Being aggrieved by the same, the accused has preferred the present revision petition. 2. The summary of the case of the prosecution in the trial Court was that on the date 23.11.2006, at about 7.30 a.m., near paddy field of PW-3 K.A. Uthappa in Makkandur village within the limits of complainant-Police Station, when PW-2 - Lingappa objected to the accused for the accused letting his cattles for grazing in the field of PW-3 Uthappa, who was the master of the complainant, the accused voluntarily assaulted the complainant (PW-2) with a club and caused him grievous injuries and thereby committed an offence punishable under Section 326 of IPC. 3. The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all five witnesses from PW-1 to PW-5 and got marked documents from Exs.P-1 to P-5 and one material object was produced at MO-1. However, neither any witness was examined nor any documents were got marked on behalf of the accused. 4. The learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State are physically present in the Court. 5. Heard the arguments from both side. Perused the materials placed before this Court, including the trial Court and Sessions Judge's Court's records. 6. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court. 7. 5. Heard the arguments from both side. Perused the materials placed before this Court, including the trial Court and Sessions Judge's Court's records. 6. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court. 7. After hearing the learned counsel from both side, the only point that arise for my consideration in this revision petition is: Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Section 326 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court? 8. The learned counsel for the petitioner in his argument submits that the X-ray report has not been produced by the prosecution. Though the complainant was passed in front of Police Station before going to the hospital, still, he did not lodge the complaint before going to the hospital. He also stated that MO-1 was not smeared with mud though the field was said to be with some mud. With this, he submitted that the case of the prosecution creates a doubt and prays to allow the revision petition. 9. The learned High Court Government Pleader for the respondent-State submits that since both the trial Court and Sessions Judge's Court have appreciated the evidence in proper perspective and rightly held the accused guilty of the alleged offences, no interference is warranted through this revision petition. 10. In order to prove the alleged offences against the accused, the prosecution got examined five witnesses from PW-1 to PW-5. Among whom, PW-2 Lingappa is the complainant and the alleged victim in the incident. In his evidence he has stated that he has been working under PW-3 K.A. Uthappa and attends to his agricultural work and grazing of the cattles since past four years prior to the incident. On the date 23.11.2006, in the morning at about 7.30 a.m., when he had been to the land of his master along with cattles and tied the cattles on the side of the field to enable them to graze, he noticed the accused letting his cattles free in the field of his master Uthappa. The complainant objected to the same stating that his master scolds him and says that the cattles of the accused have destroyed the crops of paddy grown in his filed. The complainant objected to the same stating that his master scolds him and says that the cattles of the accused have destroyed the crops of paddy grown in his filed. Being enraged by such an objection, the accused all of a sudden, assaulted the complainant with the club which he was holding and inflicted blows on his shoulder and left arm, by which, the complainant sustained injuries, including fracture of bone of the left arm. At his screaming, his master Uthappa, who was attending the garden work adjacent to the said land and CW-3 rushed to the spot to his rescue. However, seeing CW-2 and CW-3 (PW-3 and CW-3) coming to the spot, the accused leaving the club in the spot itself, ran away from the place. The witness has further stated that his master shifted him to Madikeri hospital for treatment in his jeep. For about a month, he was inpatient in the hospital under treatment. He has identified the club at MO-1 stating that with the very same club, the accused had assaulted him. He was subjected to a detailed cross-examination wherein the witness adhered to his original version. A suggestion made to him that while grazing the cattles, he slipped down on a stone slab and sustained injuries was not admitted as true by the witness. 11. PW-3/CW-2 Uthappa has given his evidence on the lines of the evidence of PW-2. However, he has stated the moment himself and CW-3 rushed to the spot, the accused after seeing them, ran away from the place. He has also stated that he collected the details of assault and reason of the assault immediately after the incident from none else than PW-2 himself. He has further stated that, immediately it was him who shifted the injured to the hospital and got him medically treated. He has further stated that he has shown the scene of offence to the police, who drew a scene of offence panchanama as per Ex.P-2 and seized the club used by the accused in assaulting the victim (complainant) from the spot, which club the witness has identified at MO-1. The denial suggestions made to him in his cross-examination were not admitted as true by the witness. A suggestion made to the witness that the victim sustained injuries at his own fault was not admitted as true by the witness. The denial suggestions made to him in his cross-examination were not admitted as true by the witness. A suggestion made to the witness that the victim sustained injuries at his own fault was not admitted as true by the witness. Thus, the evidence of PW-2, who is none else than the victim in the incident and the evidence of PW-3, which has been successfully withstood the cross-examination, goes to show that it was the accused and accused alone who on the date 23.11.2006, at about 7.30 a.m., assaulted the complainant with the club at MO-1 for the reason of complainant objecting him for grazing his cattles in the field of PW-3. 12. The evidence of PW-2 and PW-3 that due to the assault made by the accused upon the complainant, he sustained fracture of his left arm is further corroborated by the evidence of PW-1, the doctor, who in his evidence has stated that the injured was brought to him on 23.11.2006, at about 10.45 a.m. with the history of assault. After he examining the injured, he noticed a lacerated wound on the left arm posterior aspect at the junction of lower 1/3rd and upper 2/3rd and abnormal mobility with deformity at junction of upper 2/3rd and lower 1/3rd of left arm. He has further stated that the injured was admitted on the very day at 11.00 a.m. and he was referred to Orthopedic Surgeon. The injured was also subjected to radiological examination, wherein X-rays were taken. The witness has further stated that, after going through the X-rays, he noticed that the injured sustained fracture of shaft humerus left side at middle third junction. He has opined that the lacerated wound was simple in nature and fractured injury was grievous in nature. He has identified the Wound Certificate at Ex.P-1 as the one issued by him. He has also stated that if any person is assaulted with the club at MO-1, the injuries found on the victim are possible to occur. 13. His evidence given in examination-in-chief could not be shaken in his cross-examination. Though a suggestion was made to the witness that if a person falls on a rough surface after running speedily, he would sustain the fractured injury and that any person falls on a sharp edged floor, would sustain a lacerated wound, the witness has admitted the said suggestion as true. Though a suggestion was made to the witness that if a person falls on a rough surface after running speedily, he would sustain the fractured injury and that any person falls on a sharp edged floor, would sustain a lacerated wound, the witness has admitted the said suggestion as true. But, merely by making the said suggestion, it cannot be held that PW-2 had sustained injuries in the manner as suggested to PW-1 from the accused side. Needless to say that, possibility of occurring a similar injury by some other means is not sufficient to discard the evidence of the injured and the medical doctor. The accused who made such suggestion, is also required to show that it was in other means suggested by him, the victim had sustained the injuries. 14. In the instant case, except making a suggestion to PW-1 and PW-2 about the alternative ways of possibility of sustaining similar injuries, nothing more was elicited from those two witnesses from the accused side. As such, the argument of learned counsel for the petitioner that PW-2 himself must have sustained injuries at his fault by falling down on a stone slab is not acceptable. 15. PW-4, the Head Constable has stated about he receiving a MLC report from the District Hospital, Madikeri on 23.11.2006 and proceeding to the hospital and recording the statement from the victim as per Ex.P-4 and returning to the Station, registering the same in their Station Crime No. 173/2006 against the accused and submitting a FIR to the Court as per Ex.P-5. He has further stated that, as asked by his Police Inspector to continue the investigation, he proceeded to the place of offence as shown by PW-3 and drew a scene of offence panchanama as per Ex.P-2 and seized the club said to have been used in the commission of crime and fallen in the place/spot of the incident under the very same panchanama. The witness has identified the said club at MO-1. PW-5 has stated about he collecting the Wound Certificate as per Ex.P-1 from doctor and completing the investigation, filing a charge sheet against the accused. 16. The evidence of PW-4 and PW-5 not only could not be shaken in their cross-examination by the accused side, but, also stands corroborated by the evidence of PW-2 and PW-3. PW-5 has stated about he collecting the Wound Certificate as per Ex.P-1 from doctor and completing the investigation, filing a charge sheet against the accused. 16. The evidence of PW-4 and PW-5 not only could not be shaken in their cross-examination by the accused side, but, also stands corroborated by the evidence of PW-2 and PW-3. Thus, the evidence of prosecution witnesses proves beyond reasonable doubt that on 23.11.2006, at about 7.30 a.m., on the side of the field belonging to PW-3 Uthappa in Makkandur village, the accused at the objection raised by PW-2 for grazing his cattles in the said field, voluntarily assaulted PW-2 inflicting a simple injury and a grievous injury upon him. 17. The next question would be whether the weapon used by the accused, which is at MO-1 answers the requirement of Section 326 of IPC. Section 326 of IPC speaks about voluntarily causing hurt by dangerous weapons or means. Section 326 of IPC reads as below: "326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." In the instant case, the alleged weapon said to have been used in the commission of crime was a club measuring about 31/2 ft. in length. Both PW-2 and PW-3 have identified the said club. According to PW-2, the accused assaulted him using the said club on his body and more particularly on the left arm. Thus, when a club is used as a weapon, which is of a measurement of not less than 31/2 ft. in length. Both PW-2 and PW-3 have identified the said club. According to PW-2, the accused assaulted him using the said club on his body and more particularly on the left arm. Thus, when a club is used as a weapon, which is of a measurement of not less than 31/2 ft. and the very description of the assault and the nature of the injury itself would go to show that it has resulted in causing simple injury and another grievous injury, which grievous injury is in the form of fracture of an arm bone of the injured, it has to be held that the accused has voluntarily inflicted the said injury in a dangerous means. Therefore, the act of the accused squarely falls under Section 326 of IPC and thus, the prosecution has proved the alleged guilt against the accused beyond reasonable doubt. 18. Thus, it is appreciating these evidence, both oral and documentary, in their proper perspective, both the trial Court, as well the Sessions Judge's Court have rightly held the accused guilty of the alleged offences. 19. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for namesake. 20. In the instant case, the present petitioner/accused was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ' 5,000/-, in default of payment of fine, to undergo simple imprisonment for a period of six months. Since in the light of the facts and circumstances of the case, the sentence ordered by the trial Court and confirmed by the Sessions Judge's Court being proportionate to the gravity of the proven guilt against the accused, I do not find any perversity, illegality or error in the impugned judgments warranting any interference at the hands of this Court. 21. Accordingly, I proceed to pass the following: ORDER The Criminal Revision Petition is dismissed as devoid of merits. Petitioner/accused to surrender before the trial Court within 45 days from today and to serve the sentence. Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge's Court along with their respective records forthwith to enable them to proceed further in accordance with law.