IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR JUSTICE K. N. KESHAVANARAYANA. CRIMINAL APPEAL No.882/2005 (C)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 13 TH DAY OF SEPTEMBER 2012 BEFORE THE HON BLE MR JUSTICE K. N. KESHAVANARAYANA BETWEEN: CRIMINAL APPEAL No.882/2005 (C) Amjad, S/o Sabjan, Aged about 18 years, Occ: Coolie Work, Residing at Millagatta, 3 rd Cross, Shimoga...Appellant (By Sri.N.Nandan by Sri.Pramod, Advocates) AND : State of Karnataka, By Doddapete Police, Shimoga. (Represented by learned State Public Prosecutor).Respondent (By Sri.Rajesh Rai.K., HCGP) This Criminal Appeal is filed under Section 374 (2) of the Cr.P.C by the Advocate for the appellant/accused against the judgment dated passed by the Presiding Officer, Fast Track Court-II, Shimoga, in S.C.No.107/2002, convicting the appellant/accused No.1 for the offences punishable under Sections 504 and 325 of IPC and sentencing him to pay a fine of Rs.500/- in default, to undergo S.I. for 2 months for the offence

2 2 punishable under Section 504 of IPC and further sentencing him to undergo S.I. for 3 years and to pay a fine of Rs.3,000/- in default, to undergo S.I. for 6 months for the offence punishable under Section 325 of IPC. This Criminal Appeal coming for orders on this day, the court delivered the following: J U D G M E N T This appeal by the convicted Accused No.1 in S.C. No.107/2002 on the file of Fast Track Court-II, Shimoga, is directed against the judgment of conviction and order of sentence dated passed in the said case convicting him for the offences punishable under Sections 504 and 325 of IPC and sentencing him to undergo simple imprisonment for three years and to pay fine of Rs.3,000/- for the offence punishable under Section 325 of IPC and to pay fine of Rs.500/- for the offence punishable under Section 504 of IPC. 2) The appellant along with three other accused persons was chargesheeted for the offences punishable under Sections 504, & 324 r/w. 34 IPC inter alia alleging that, in the background of incident on the

3 3 previous evening, Accused Nos. 1 to 4 by sharing a common intention, at about 8.30 a.m. on near the shop of one Kaka close to Arlikatte in Millagahatta, 3 rd Cross, Shimoga, started eve-teasing a lady, who came near the shop and when PW.4 Chinnapapathiamma chastised Accused No.1 as to why they are teasing the married lady, the accused abused her in filthy language and by removing iron box spanner hidden in his waist, Accused No.1 tried to assault PW.4 and on seeing this, when her son PW.3-Venkatesh tried to interfere, Accused No.1 assaulted him with the said spanner on the forehead resulting in grievous hurt to him and other accused persons assaulted PWs.1, 2, 4 and others, who came there to pacify the quarrel. 3) According to the case of the prosecution, immediately after the incident, the injured persons were brought to the Mec.Gann Hospital, Shimoga, from where a memo was sent to the police. On receipt of the memo, the police came to the hospital, recorded the statement of

4 4 CW.1-Nanjunda, who was also an injured and on the basis of his complaint, case came to the registered and investigation was taken-up. Subsequently, PW.3 was treated in Bapuji Hospital, Davangere, where CT Scan was done, which revealed cerebral contusion of the right parietal lobe with bony fragment in the right parietal lobe. 4) During investigation, the Investigating Officer seized the rod used for the commission of the offence on being produced by the complainant, who had snatched the same from the hands of Accused No.1 at the time of the incident. The accused persons were apprehended and though initially subjected to judicial custody, were later released on bail. On completion of the investigation, charge sheet came to be laid. 5) On committal of the case, the accused persons appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them.

5 5 6) The prosecution in order to bring home the guilt of the accused persons for the charges, examined PWs.1 to 8 and relied on the documentary evidence- Exs.P1 to P11 and also MO.1. The accused persons denied all the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They did not choose to lead any defence evidence. However, their defence was that in the evening of some miscreants threw a fire-lit cracker into the shirt pocket of Accused No.4 and in that regard there was some quarrel and in that background, at about 900 or 9.30am on , PWs. 1 to 4 along with several other persons trespassed into the house of Accused No.4, dragged his wife out of the house, assaulted her and in that melee PW.3 fell into the drainage and thereby sustained injuries and in respect of the said incident, though they tried to lodge a complaint, the police did not receive the same, therefore, they filed a private complaint, but the police have not investigated into the complaint intentionally and have filed a false case against them.

6 6 7) After hearing the learned counsel appearing on both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has proved the incident of assault by accused on PWs.1 to 4 and others beyond reasonable doubt. The learned Sessions Judge further held that the acts committed by the accused were not with an intention or knowledge likely to cause death of any one, therefore, the acts committed by the accused persons do not fall within the offence punishable under Section 307 of IPC. The learned Sessions Judge came to the conclusion that the evidence on record established that PW.3 sustained grievous hurt while others sustained simple hurt. However, the Trial Court held that though the prosecution has produced the weapon used by Accused No.1 for assault as per MO.1, it is not a dangerous weapon likely to cause death, if used. Therefore, the learned Sessions Judge held that the act committed by Accused No.1 would constitute an offence punishable under Section 325 of IPC while the acts of

7 7 assault by Accused Nos. 2 to 4 by their hands resulting in simple hurt constitutes an offence under Section 323 r/w. 34 of IPC. The learned Sessions Judge also held that the evidence on record establishes that Accused No.1 by abusing PW.4 in filthy language, insulted her with an intention by that act which is likely occasion breach peace. Therefore, Accused No.1 was also found guilty for the offence punishable under Section 504 of IPC. In that view of the matter, appellant/accused No.1 was convicted for the offences punishable under Sections 504 and 325 of IPC, while other accused persons were convicted for the offence punishable under Section 323 r/w. 34 IPC. Aggrieved by the said judgment of conviction and order of sentence. Accused No.1 is in appeal before this Court. It is not forthcoming as to whether or not Accused Nos. 2 to 4 assailed the judgment of the trial Court by filing appeal. 8) I have heard the learned counsel appearing for the appellant/accused No.1 as well as the learned High

8 8 Court Government Pleader and perused the records secured from the trial Court. 9) In the facts and circumstances of the case, the point that arises for my consideration is, whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? 10) As could be seen from the judgment under appeal, for the purpose of recording finding of guilt against the appellant/accused No.1, the learned Sessions Judge has placed reliance on the testimony of PWs.1 to 4 as to the incident alleged and on the testimony of PW.6-Dr. R.M. Chandrappa, with regard to the nature of the injuries sustained by the witnesses. Of course, the person who set criminal law into motion has not been examined during the trial of the case. 11) It is noticed in the judgment under appeal that CW.1-Nanjunda, on whose complaint the case came to be registered, was not available in the village during the

9 9 trial and his whereabouts were not known. However, on that ground, the case of the prosecution has not been rightly doubted nor viewed with suspicion. As per the case of the prosecution, CW.1-Nanjunda was one of the injured persons. PWs. 1 to 4 in their evidence have consistently stated about the incident that occurred on the previous date near Aralikatte where the eve-teasing took place and also about the incident of assault that took place at about 9.00 or 9.30am on Though the witnesses have been cross-examined at length, nothing has been brought-out to discredit their testimony. The learned Sessions Judge during the course of the judgment has elaborately referred to the oral evidence of PWs.1 to 4 and has also considered the omissions and contradictions in their cross-examination and also has considered the question as to whether those contradictions and omissions have in any way discredited their testimony. The learned Sessions Judge has held that these contradictions and omissions brought-out in the cross-examination have not in any way created any

10 10 dent in their evidence. The evidence of PW.6 establishes that when he examined PWs.1 to 4 in the hospital on , he noticed injuries on their persons. He also referred to the injury sustained by PW.3 on the forehead with reference to the CT Scan report. The presence of injury on the persons of PWs.1 to 4 gains corroboration from the medical evidence, therefore, PWs. 1 to 4 have been rightly treated as injured eye witnesses. The evidence of PWs.1 to 4 as to the incident is consistent and cogent. The defence plea has been found to be neither probable nor acceptable. Except certain suggestions put to PWs. 1 to 4 in the cross-examination, the Accused have not produced any evidence to probablise the defence plea. Though it is the specific defence of the appellant that a private complaint was filed in respect of the incident of assault on the wife of Accused No.4, no material was produced before the Court to substantiate the same. Therefore, the trial Court has rightly held that the defence plea was neither probable nor acceptable. The tenor of the cross-examination of PWs.1 to 4, indicates that the

11 11 presence of these witnesses and presence of the accused at the scene of occurrence is not seriously disputed. Therefore, in my considered opinion, the learned Sessions Judge is justified in placing reliance on the testimony of PWs.1 to 4 as to the incident of assault that took place at about 9.30am on The findings recorded in this regard are sound and reasonable regard being had to the evidence on record and it does not suffer from any perversity or illegality. 12) As noticed supra, the learned Sessions Judge has recorded a finding that this act of assault by the appellant on PW.3 was not with an intention or knowledge likely to cause death and therefore, it does not attract the offence under Section 307 of IPC. The learned Sessions Judge during the course of the judgment has also held that having regard to the nature of the weapon produced before the court as per MO.1, it cannot be said that the said weapon if used could cause of death and therefore, it is not a dangerous weapon. However, having regard to the

12 12 oral evidence of PW.6 and the contents of the wound certificate-ex.p.5 relating to PW.3 and based on the purported CT Scan report, the learned Sessions Judge proceeded to hold that the prosecution has proved that PW.3 had sustained grievous hurt. It is in the light of the said finding, the appellant was found guilty of the offence punishable under Section 325 of IPC. No doubt, PW.6 in his oral evidence has stated that the injury suffered by PW.3 was grievous in nature. According to him, the said opinion is based on the CT Scan report of Bapuji Hospital, Davangere. During the cross-examination, it is elicited from him that in the MLC Register maintained in his hospital, the injury suffered by PW.3 has been described as simple in nature and subsequently it has been changed as grievous in nature. Ex.P.7(a) is the xerox copy of the relevant entry of MLC Register pertaining to PW.3. As per the entries in Ex.P.P7(a), PW.3 was found having sustained a lacerated injury over the right parietal region measuring 1 inch x ½ inch with bleeding present. At the first instance the said injury had been described as simple

13 13 in nature but later it has been described as grievous in nature in the light of the CT Scan report dated by Bapuji hospital and the same has been reiterated in the wound certificate-ex.p.7. However, the CT Scan report of Bapuji hospital has not been produced before the Court nor any evidence is produced on record to show that PW.3 was treated in Bapuji Hospital and during treatment, CT Scan was done. PW.6 has no personal knowledge about the nature of the injury as described in the alleged CT Scan report. The basis for changing the nature of injury from simple to grievous was the alleged CT Scan report of Bapuji Hospital dated In the absence of the copy of the said CT Scan report, in my opinion, the learned Sessions Judge is not justified in concluding that the injury suffered by PW.3 was grievous in nature. As the basis for describing the nature of injury suffered by PW.3 as grievous itself was not produced before the Court, the finding of the trial Court that the injuries suffered by PW.3 was grievous in nature is without any basis, as such, the opinion could not have been reached only on the

14 14 basis of the oral evidence of PW.6 without producing the CT scan report or without being corroborated by the evidence of the Doctor, who treated PW.3 in Bapuji Hospital. Therefore, in my opinion, the conclusion reached by the learned Sessions Judge as to the nature of the injury suffered by PW.3 is perverse and not supported by any legal and acceptable evidence. Having regard to the fact that the injury suffered by PW.3 had been described as simple in Ex.P.7(a), there is no difficulty in holding that PW.3 had sustained a simple injury by use of the weapon which is not dangerous. In that view of the matter, the act of assault by Accused No.1 on PW.3 constitutes an offence punishable under Section 323 of IPC. 13) The oral evidence of PWs.1 to 4 clearly establishes that Accused No.1 with an intention to insult PW.4 abused her in filthy language. Therefore, the judgment of conviction recorded for the offence punishable under Section 504 of IPC does not warrant interference.

15 15 14) Perusal of the record indicates that appellant/accused No.1 voluntarily surrendered before jurisdictional Magistrate on and he was released on bail on Thus, the appellant has spent about 19 days in custody. The offence under Section 323 of IPC is punishable with imprisonment for a term which may extend to one year or with fine which may extend to Rs.1,000/- or with both. Having regard to the fact that this Court has found the appellant guilty of the offence punishable under Section 323 of IPC, in my opinion, the interest of justice would be met by sentencing the appellant for the period of custody already undergone and by directing him to pay fine of Rs.1,000/- for the offence punishable under Section 323 of IPC and by affirming the sentence of fine ordered by the trial Court for the offence punishable under Section 504 of IPC. 15) In view of the above discussion, the appeal is allowed in part. In modification of the judgment of conviction passed by the trial Court, the

16 16 appellant/accused No.1 is convicted for the offences punishable under Sections 323 and 504 of IPC. The appellant is sentenced for the period of custody already undergone and to pay fine of Rs.1,000/- for the offence punishable under Section 323 of IPC and Rs.500/- for the offence punishable under Section 504 of IPC. The appellant is granted three weeks time to deposit the fine amount. SD/- JUDGE KGR*