Partly allowed

Prakash Fakirappa Murgod, v. the State of Karnataka

Karnataka HC8 Dec 2020CRL.RP/2307/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a revision petition partly. Finding that the prosecution failed to produce X-ray reports to prove grievous injury as required for Section 326 IPC, the Court modified the conviction from Section 326 IPC to Section 324 IPC and imposed a different sentence.

What did the court decide?

Petitioner convicted for Section 324 IPC; sentenced to fine of Rs.10,000/- or one year simple imprisonment; previous fine set off.

Prakash Fakirappa Murgod, Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^{T H} DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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VISHAL NPATTIHAL

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CRIMINAL REVISION PETITION NO.2307/2011

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BETWEEN:

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Digitallysigned byVISHAL NPATTIHAL Date:2020.12.1515:37:07+0530

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PRAKASH FAKIRAPPA MURGOD AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. MABANOOR, TQ: SAUNDATTI, DIST: BELAGAVI.

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….PETITIONER.

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(BY SHRI JAGADISH PATIL, ADVOCATE.)

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AND:

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THE STATE OF KARNATAKA BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD.

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….RESPONDENT.

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(BY SHRI RAMESH CHIGARI, HIGH COURT GOVERNMENT PLEADER.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 16.9.2011, PASSED BY FAST TRACK COURT, SAUNDATTI, IN CRL.A.NO.11/2011 AND THE JUDGMENT OF CONVICTION DATED 27.12.2010, PASSED BY THE COURT OF JMFC, SAUNDATTI, IN C.C.NO.932/2008, ETC.,.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision petition is preferred by accused No.4 challenging judgment of conviction dated 27.12.2010, passed by JMFC, Saundatti, in C.C.No.932/2008, convicting him for the offence punishable under section 326 of IPC and sentencing him to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- and in default to pay fine, to undergo simple imprisonment for a period of two months, which has been confirmed by Fast Track Court, Saundatti, in Crl.A.No.11/2011.

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Brief facts leading to filing of this case are as under:

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On 11.6.2008, at about 7.00 hours in Mabanur village, on account of dispute with regard to an open space situated nearby the house of complainant, accused got angry on complainant while she was putting up a bund to the said open space. All accused persons with a common

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intention picked up quarrel with complainant and abused her in a filthy language and accused No.4 voluntarily caused grievous hurt to complainant by assaulting her with a stone. Further accused No.3 Mahadev assaulted son of complainant by name Chidanand with hands and caused him simple injuries, thereby accused are alleged to have committed offence punishable under sections 504, 326, 323 read with section 34 of IPC. All accused persons were produced before the Court and were enlarged on bail and plea was recorded, accused pleaded not guilt and claimed to be tried and accordingly they were tried.

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In order to prove the guilt of accused, prosecution examined in all 10 witnesses namely PW.1 to PW.10 and got marked 4 documents Exs.P.1 to P.4 and a material object M.O.1 being the stone. After closure of evidence of prosecution, statement of accused was recorded as required under section 313 of Cr.P.C., wherein accused denied all incriminating evidence against

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them. However accused persons led-in evidence of accused No.3 as DW.1 and no documents were marked.

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On the basis of material evidence and documents before trial Court, on proper appreciation of the same, trial Court came to a conclusion that accused Nos.1 and 2 were not found guilty and hence were acquitted. Accused No.3 came to be convicted for the offence punishable under section 323 read with section 34 of IPC and accused Nos.1 to 4 were acquitted for the offence punishable under section 504 read with section 34 of IPC. Accused Nos.1 to 3 were further acquitted for the offence punishable under section 326 of IPC and accused Nos.1 and 2 were acquitted for the offence punishable under section 323 read with section 34 of IPC. Accused No.4, petitioner herein came to be convicted for the offence punishable under section 326 read with section 34 of IPC. Aggrieved by the said judgment of conviction, accused No.4, petitioner herein

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preferred an appeal before Fast Track Court, Saundatti, in Crl.A.No.11/2011.

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On re-appreciation and re-evaluation of entire material evidence, appellate Court came to a conclusion that finding of trial Court was based on sound legal principles of law and there were sufficient material evidence against accused No.4 for the offence punishable under section 326 of IPC and accordingly dismissed the appeal and confirmed the judgment of conviction of trial Court.

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Heard Shri Jagadish Patil, learned

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counsel for petitioner-accused and learned High Court Government Pleader for respondent State.

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It is contended by learned counsel for petitioner/accused that judgment of conviction and order of sentence passed by both Courts are contrary to material evidence available on record and hence the same is illegal and arbitrary and hence calls for interference by this Court for reversal of the same. Learned counsel further

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contends that the judgment is based on assumptions and presumptions and not on factual material available on record. Therefore the impugned judgment is liable to be reversed. Learned counsel further contends that trial Court has not appreciated the evidence and has not applied its mind to consider the provision of section 326 of IPC and it has misconstrued itself with regard to mandatory requirement of ingredients to constitute the offence punishable under section 326 of IPC. Therefore impugned judgment is against the provisions of law and principles of natural justice and hence the same is liable to be set aside.

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Learned counsel further contends that the trial Court has not considered the fundamental element of motive for implicating accused No.4, the petitioner herein. Learned counsel further contends that there are no independent witnesses examined by prosecution to prove the guilt of accused beyond reasonable doubt and none of the

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witnesses have stated with regard to the assault with stone by accused No.4, the petitioner herein. Learned counsel further contends that panchas PWs.2 and 3 are not supported the case of prosecution and so also the evidences of PWs.1 and 3 have not corroborated by the evidence of PW.9. Learned counsel further contends that when there is no positive evidence to implicate the accused herein, merely on the ground of surmises and conjectures, accused cannot be convicted. Learned counsel further contends that even assuming accused is said to have been involved in the scuffle with the complainant, the same would not amount to grievous hurt attracting the provision of Section 326 of IPC. Learned counsel further contends that the material produced does not support the evidences lead by the prosecution witnesses.

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Learned counsel further contends that

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Ex.P3 which is a wound certificate issued by the doctor as per the report given by another doctor

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namely Dr.M.M.Hooli, who is Ortho Surgeon of Saundatti. Therefore, he contends that though the doctor has examined the complainant but has based his suggestion on the report of another doctor. Hence, the statement in Ex.P3 that the injury is grievous in nature would not be sustainable. Learned counsel further contends that accused Nos.1 and 2 have been convicted in the case, accused No.3 has been convicted only for the offences punishable under Section 323 and he has undergone the sentence and in the present case as there is no ground made out by the prosecution to attract the provisions of Section 326 of IPC. He pleads that petition may be allowed and judgment of conviction be set aside and consequently acquit the accused.

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Learned counsel for the petitioner accused relies on the judgment of Shivappa and others Vs. State of Karnataka in Criminal Revision Petition No.2337/2010 passed by coordinate bench of this Court in support of his case.

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Per contra, learned High Court

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Government Pleader contends that the prosecution has proved the guilt of accused beyond reasonable doubt and the evidences of PWs.1 to 10 have corroborated the statement made by each other. The spot panchanama and wound certificate Ex.P2 and Ex.P3 supports the case of prosecution. He further contends that though the doctor PW.6 has examined the complainant has not produced the X-ray report, would not prove fatal to the case of prosecution. Learned High Court Government Pleader further contends that there is incriminating evidence as against accused No.4, the petitioner herein by way of eyewitnesses PW.5 and PW.9 whose evidences are corroborated with each other to implicate accused No.4 for assaulting the complainant with the stone MO.1 and the same has not been demolished in the cross-examination by accused.

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Therefore, on these submissions, he contends that there is no interference required in

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the well reasoned judgment of the trial Court and affirmation by the Appellate Court. Hence, he seeks to dismiss this petition and confirm the judgment passed by both the Courts.

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Having heard learned counsel for petitioner-accused and learned High Court Government Pleader for respondent, the point that arises for consideration before this Court would be:

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(a) Whether there is any illegality or perversity in the impugned orders passed by both the Courts?

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In order to answer the above, let us have a cursory look at the case of prosecution. On the basis of the complaint registered by PW.1, her evidence was recorded that while she was standing in-front of her house accused Nos.1 to 4 came there and with a common intention to pick up a quarrel, accused No.4 assaulted her with stone on her waist portion and other accused

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assaulted her son. Accused threw the stone there and ran away and stone was seized and produced as MO.1 and PW.2 has identified the said stone. PW.2 is none other than pancha. PW.3 is also a pancha witness, who has also identified stone and signed at Ex.P2. It is shown by prosecution that PW.2 and PW.3 were present in the spot and accordingly they put their signature in the panchanama-Ex.P2 and that stone was seized in their presence and which is marked as MO.1. Therefore, it is a case of prosecution that the seizure of MO.1 and spot panchanama is proved successfully. PW.5 is eyewitness to the incident and his evidence has not been demolished by the defence so also PW.9 is another eyewitness. The evidences adduced by these prosecution witnesses was carefully examined and trial Court came to the conclusion that accused No.4, petitioner herein was guilty of offences and convicted him for the offence punishable under Section 326 read with 34 of IPC. The Appellate Court has re-

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evaluated and reconsidered the entire material evidence and arrived at a conclusion that accused No.4, the petitioner herein has caused grievous hurt by assaulting the complainant with stone MO.1 and though there is some minor discrepancy sufficient cogent evidence was made out by prosecution to convict accused No.4 for the offence punishable under Section 326 of IPC and accordingly Appellate Court did not find any reason to interfere with the well reasoned judgment of trial Court.

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The point that is canvassed by the

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learned counsel for petitioner-accused before this Court is that despite all the evidences made out by prosecution and documents produced corroborating the statement of the prosecution witness no case is made out by prosecution. Merely by the statement of PW.6 through Ex.P3 that the injuries suffered by complainant-PW.1 is grievous injury would not by itself prove to be grievous in nature. In view of non furnishing of

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supporting material by way of X-ray sheets or medical case sheets maintained in the hospital or for that matter any prescription in support of said injuries attributed as grievous injuries as per Ex.P3. Learned counsel for the petitioner-accused has relied upon the judgment in the case of Shivappa and Another stated supra, wherein the co-ordinate bench of this Court has relied on the judgment of Division Bench of this Court in the case of State Vs. Sheenappa Gowda and Others reported in 2011 (4) KCCR 2759 (DB), wherein it is held at paragraph No.11 as under:

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“11. Therefore, the question for determination is limited to find out whether the said injury No.2 is proved to be a grievous injury sustained by PW.4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Indian Penal Code is taken by the accused. In this case, the defence taken by the

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accused is one of denial. It is clear from the evidence of PW.1 that he has given description of injury on physical examination of PW.4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW1. would only show that there was injury as described in the wound certificate – Ex.P2. When PW1 suspected such fracture, he ought to have referred the injured – PW4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled that unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. It is true that in the crossexamination of PW1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW1. However, the same

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would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW.1 Doctor only on clinical examination of PW.4, the injured.”

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On careful perusal of the entire materials in the present case on hand, all aspects of evidence of prosecution has corroborated with each other to prove the guilt of accused but both the Courts have failed to take into consideration the very essential and crucial aspect with regard to the nature of injury being grievous to attract the provisions of Section 326 of IPC. No doubt, the evidence of PW.5 and PW.9 would show that accused No.4 assaulted complainant-PW.1 with stone but to prove the fact that assault of PW.1 with stone has caused injury which is grievous in nature is for the prosecution to show by material evidence by producing cogent evidence. Therefore, X-ray sheets, medical case history sheets, prescriptions or any other material would

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directly implicate accused No.4 for the offence punishable under Section 326 of IPC. In the present case on hand, admittedly no such documents are produced by the prosecution.

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On careful consideration of the above said facts and circumstances of the case and in the light of non production of X-ray sheets, medical case history sheets and prescriptions by the prosecution. It is apparent on the face of record that both the Courts have erred in coming to the conclusion that offence punishable under Section 326 of IPC is made out against accused No.4, the petitioner herein. Therefore, the evidence adduced by prosecution does not establish the ingredients of offence charged against accused herein. The prosecution has also failed to prove that complainant-PW.1 sustained grievous injuries due to act of accused, the petitioner herein, for being implicated under Section 326 of IPC. Ex.P3 which is produced and

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marked through the doctor-PW.6, wherein the following injuries are mentioned reads as under:

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(1) Pain and tenderness and fracture of right side superior pubic radius as per the report given by Dr.M.M.Hooli, Ortho Surgeon, Savadatti.

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(2) Pain and tenderness over the left side Hip joint.

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Therefore, in my considered opinion the implication of accused No.4 for the offence punishable under Section 326 of IPC may not be sustainable in the facts of the present case. At the most, the relevant provision applicable would be Section 324 of IPC and the said offence is punishable for voluntarily causing hurt by means of any weapon which is lesser offence compared to Section 326 of IPC and therefore as contemplated under Section 222 of Cr.P.C., the petitioner accused herein would be at most implicated for the offence punishable under Section 324 of IPC, which is a minor offence. Therefore, the conviction

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of accused for the offence punishable under

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Section 326 of IPC is not sustainable in law.

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Accordingly, I pass the following:

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ORDER

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Petition is partly allowed.

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The judgment of conviction is modified as under:

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Petitioner-accused No.4 is convicted for the offence punishable under Section 324 of IPC and shall be sentenced to pay fine of Rs.10,000/- in default of payment of fine, the petitioner accused shall undergo simple imprisonment for a period of one year.

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If any amount is already deposited by petitioner-accused, the same shall be given set off.

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Sd/JUDGE

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Mrk/msr VK

Prakash Fakirappa Murgod, v. the State of Karnataka

Case brief

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What did the court decide?

Prakash Fakirappa Murgod, v. the State of Karnataka

Case brief

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