Dismissed

State of Karnataka v. M. Nagaraja Reddy S/O.M. Bheemann

Karnataka HC25 Feb 2021CRL.A/2929/2012

Case brief

AI extract

What is this about?

In this criminal appeal seeking enhancement of sentence under Section 377 Cr.P.C. for offences under Sections 326 and 324 IPC, the High Court held that without x-ray reports, injuries cannot be deemed grievous, reducing the charge to Section 324. Consequently, the appeal for enhanced sentence was dismissed as the trial Court's sentencing was not inadequate for Section 324.

What did the court decide?

The criminal appeal filed by the State was dismissed as the sentence for Section 324 was not legally unsustainable.

State of Karnataka Vs M. Nagaraja Reddy… — Child Sexual Offences (POCSO) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 25^th DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL APPEAL NO.2929/2012

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BETWEEN:

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STATE OF KARNATAKA REPRESENTED BY DY. SUPERINTENDENT OF POLICE KUDLIGI SUB DIVISION, BELLARY DISTRICT.

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.. APPELLANT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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AND:

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1 . M. NAGARAJA REDDY S/O.M. BHEEMANNA AGE 36 YEARS,

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2 . SANTHOSH REDDY S/O. GOVINDA REDDY

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3 . SRI SURESH REDDY, S/O. SOMA REDDY DELETED VIDE ORDER DATED 25.2.2021

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G. YERRISWAMY REDDY, S/O THIMMA REDDY.

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4 . IRDAL THIMMA REDDY S/O. BHEEMA REDDY AGE: 27 YEARS,

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5 . G. HANUMANTHA REDDY S/O. SANNA THIMMAPPA AGE: 52 YEARS,

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6 . N. LOKESH S/O. RAMALINGAPPA AGE: 34 YEARS,

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7 . G. THIMMA REDDY S/O. SANNA THIMMAPPA AGE: 28 YEARS,

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8 . ESHWARA REDDY S/O. SOMAREDDY AGE: 35 YEARS, OCC: AGRICULTURIST

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ALL ARE R/O. GOLLALINGAMMANAHALLI TQ: SANDUR, DIST: BELLARY 583 119

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.. RESPONDENTS

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(BY SRI.VIJAY CHINIWAR, AMICUS CURIAE FOR THE RESPONDENTS SRI. D.M. MANJUNATH, FOR R1 TO R3 AND R5 TO R8. RESPONDENT NO.3 DELETED RESPONDENT NO.4 SERVED.)

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THIS CRIMINAL APPEAL IS FILED U/S 377 OF CR.P.C. SEEKING TO MODIFY THE JUDGMENT AND ORDER OF CONVICTION DATED 24.07.2012 (INADEQUATE SENTENCE) PASSED BY THE SPL. JUDGE, BELLARY IN SPL. CASE NO.56/2010 AND SENTENCE THE RESPONDENT ACCUSED AS PROVIDED U/S 326 OF IPC.

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THIS APPEAL COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This appeal is filed by the State under Section 377 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) seeking enhancement of inadequate sentence dated 24.07.2012 passed by the leaned Special Judge, Bellary (hereinafter referred to as the ‘trial Court’), in Special Case No.56/2010 wherein the trial Court has sentenced the respondents, who are accused Nos.1, 2, 4 to 6, 14, 16 and 19 to undergo

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imprisonment till rising of the Court for the offence punishable under Sections 326 and 324 of IPC with fine.

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Heard the arguments of Smt. Seema Shiva Naik, learned Government Pleader for the appellant-State and Sri. Vijay Chiniwar, Amicus Curiae for the respondents and also Sri. D.M. Manjunath learned counsel for respondent Nos.1 to 3 and 5 to 8, who joined later with the Amicus Curiae and argued the matter.

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The rank of the parties before the trial Court is retained for convenience.

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The case of the prosecution is that the Deputy Superintendent of Police, Kudligi, Sub-Division, Bellary, filed charge-sheet against accused Nos.1 to 23 for the offence punishable under Sections 143, 147, 148, 341, 323, 324, 427, 436, 504, 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and under Section 3(i), (ii), (x), (xi), (xv) and 3(2)(v) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC & ST Act’). It is alleged in the complaint that on 09.05.2010 at about 11.45 pm, an oral complaint was lodged by

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the complainant before the Gudekote Police at VIMS Hospital, Bellary, that they belong to scheduled caste and behind their street, thee are lands of Reddy community people and adjacent to the said lands, there is Government land. They have put up huts in the Government land about four years back. But recently, people belonging to Reddy community namely Yerri Swamy Reddy and his family members came to Harijana street and told to remove the huts put up in their field and they also gave threat to them. The complainant and others told to measure the land and since about 15 days, when the ladies went to answer nature call, the Reddy Community people abused them in filthy language. Reddy Community people also dug bore-well in the land but there was no water in the bore-well and thereafter the bore-well was removed. On 09.05.2010 at about 6.30 pm the accused persons named in the FIR came with deadly weapons by forming an unlawful assembly and assaulted them with sticks, iron rods, stones and abused them in filthy language. Due to the injuries, they have been admitted to the hospital. Accordingly, a case has been registered against the accused. The accused were arrested by the Police and they are released on bail. After filing of the charge-Sheet, the Special

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Court/trial Court took cognizance and framed charges against the accused. The accused pleaded not guilty and claimed to be tried.

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The prosecution in order to prove its case, examined 30 witnesses and got marked 26 documents and 10 material objects. After closing the prosecution case, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused is one of total denial. The accused did not lead any evidence but got marked Ex.D-1-copy of the FIR, copy of complaint and spot panchanama in Crime No.32/2010, which is a counter complaint filed by the accused.

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After hearing the arguments, the trial Court acquitted accused Nos.3, 7 to 11,13, 15, 17, 18, 20 to 23 of the offence punishable under Sections 504, 436, 323, 324,326, 307 read with Section 149 of IPC and under Section 3(1)(x) and 3(2)(v) of SC & ST Act and also acquitted accused Nos.1, 2, 4 to 6, 14, 16 and 19 of the offence punishable under Sections 504, 436, 323, 307 read with Section 149 of IPC and under Section 3(1)(x) and 3(2)(v) of SC & ST Act, but convicted accused Nos.1, 2 and 5 for the offence punishable under Sections 326 and 324 read with Section 149 of

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IPC and sentenced accused Nos.1, 2 and 5 to undergo imprisonment till rising of the Court hours and fine of 10,000/each for the offence under Section 326 of IPC in default to undergo simple imprisonment for three months and are further sentenced to pay fine of 1,000/- each for the offence punishable under Section 324 read with Section 149 of IPC in default to undergo simple imprisonment for 15 days; and further sentenced accused Nos.4, 6, 14, 16 and 19 to undergo imprisonment till rising of Court hours and fine of 3,000/- each for the offence punishable under section 326 read with Section 149 of IPC in default to undergo simple imprisonment for three months and they are sentenced to pay fine of 2,000/- each for the offence under Section 324 of IPC, in default, to undergo simple imprisonment for 15 days.

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Regarding inadequate sentence passed by the trial

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Court, the State has preferred this appeal.

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Learned High Court Government Pleader has contended that the trial Court has committed an error in imposing inadequate sentence and the same is bad in law and against the provisions of Sections 326 and 324 of IPC, where Section 326 provides a

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minimum sentence for at least two years and it cannot be less than that or till rising of the Court hours and the same is not sustainable. She further contended that, some of the injured witnesses and the Investigating Officer all have supported the case and that the overtact, injuries sustained and recovery of weapons are all proved before the trial Court. Such being the case, the sentence of imprisonment passed by the trial Court against the accused which is till rising of the Court hours is inadequate sentence, which is against the judgment of the Hon’ble Supreme Court in the case of Mangal Singh and Another v. Kishan Singh and Others reported in (2011) 1 Supreme Court Cases (Cri) 1019 and also the judgment of this Court in the case of State by Kumsi Police v. Mahadeva reported in ILR 2001 KAR 4442 . Therefore, prayed for enhancement of sentence.

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Though notice was issued to the respondents, except respondent No.4, who is served, all other respondents have appeared though counsel. As the learned counsel for the respondents remained absent, this Court appointed Sri. Vijay

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Chiniwar as Amicus Curiae to assist the Court and to defend the accused and later the Advocate joined and argued the matter.

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Learned counsel for the respondents/accused contended that the judgment of the trial Court convicting the respondents is not sustainable in law. Eyewitnesses PWs.11 to 15 and other witnesses have also turned hostile and their evidence is insufficient to convict the accused. Therefore, the question of convicting the accused under Sections 324 and 326 does not arise when the trial Court rightly acquitted holding that there is no offence committed under SC and ST Act. Such being the case, the sentence of imposing imprisonment and fine does not arise. Therefore, the learned counsel prayed for acquitting the respondents/accused.

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Learned counsel alternatively argued that the wound certificates of PWs.1 and 4 show that they have sustained grievous injuries and others have sustained simple injuries. Though it was referred as grievous injury in Exs.P-15 and 17 but X-ray film or the report is not produced before the Court. Even in the crossexamination of PW-22 he has admitted the suggestion put to him that injuries Nos.1 to 3 referred in Ex.P-15 were possible if one falls

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the ground and sharp edge of the weapon comes in contact with body. When such being the case, the judgment of conviction and sentence passed by the trial Court against the accused for the offence under Section 326 of IPC does not arise. Hence, prayed for setting aside the same.

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Upon hearing the arguments of the learned Government

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Pleader and the learned Amicus Curiae, the point that arise for my consideration are:

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i) Whether the order passed by the trial Court imposing sentence of imprisonment till rising of the Court hours is inadequate and against the provisions of Section 326 of IPC? and

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ii) Whether the sentence passed by the trial Court requires enhancement in the facts and circumstances of the case?

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On appreciation of the documents and evidence on

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record, the prosecution has examined as many as 30 witnesses. It is an admitted fact that some of the accused were acquitted for the offence both under the IPC as well as under the SC & ST Act and the State has not preferred any appeal against the acquittal of

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those accused both under the IPC and the SC & ST Act and it has attained finality. Though the accused have not preferred any appeal challenging the impugned order, the State is before this Court seeking enhancement of sentence which is inadequate.

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As per Section 377(3) of Cr.P.C., the accused can plead for acquittal. Except PWs.1 and 4 to 7, none of the material witnesses including PWs.11 and 15, who have sustained injuries, supported the case of the prosecution. PWs.1, 4 to 7 have given evidence before the Court and narrated the incident about the assault made by the accused on the witnesses. PW-1-Sandurappa, PW-4- Basavaraja, PW-5-Dodda Yankappa, PW-6-Gangamma and PW-7-Durugamma are all injured and related to each other. PW-1 has given evidence in support of the complaint made before the police as per Ex.P-1 and he has stated that accused persons assaulted him. He sustained injuries along with PWs.4 to 7 and he further stated that accused Nos.1 and 2 assaulted him on his head and left Eye. Ex.P-15 is the wound certificate of PW-1 which reveals that injury Nos.1 and 2 is grievous in nature accused Nos.1 and 2 caused grievous injuries to PW-1 by assaulting him with iron

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rod and PW-4 also stated that the accused assaulted him and caused grievous injuries and he has sustained fracture on the left fore-arm and the wound certificate is marked as Ex.P-17. PW-5Doda Yankappa was assaulted by accused No.14. PW-6-Gangamma stated that accused No.6 assaulted her and ExP-16 is the wound certificate which shows that Gangamma sustained tenderness over right shoulder. PW-7-Durgamma stated that accused No.16 assaulted on her leg with stone and Ex.P.19 goes to show that she sustained tenderness over right foot. Though suggestion was made that they have sustained injuries due to fall but they have denied the same. The wound certificate as well as the material objects 1 and 2-iron rods (2), M.O.3-stick, M.O.4-broken pieces of cement sheets(10), M.O.5-Ash and M.Os.6 to 10-stones corroborates the evidence of the eyewitnesses and the evidence of the Doctor-PW-22 which shows that if a person is assaulted with weapons the above injuries could be caused to the prosecution witnesses 1, 4 to 7. PWs.1 and 4 sustained grievous injuries and PWs.5 to 7 sustained simple injuries. The injured eyewitnesses cannot be said to be interested or tainted witnesses as they are the injured persons. They sustained injuries in the incident of assault

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made by the accused. Though due to discrepancy in the evidence, the other accused are acquitted by the trial Court, but the evidence of the prosecution witnesses 1, 4 to 7 is clear that the accused have assaulted them causing injuries. The trial Court after considering the evidence on record, rightly acquitted the accused Nos.3, 7 to 11, 13, 15, 17, 18, 20 to 23 of the offence under both IPC and SC & ST Act though found guilty for assaulting the complainant by the accused persons.

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By looking to Exs.P-15 and 17-the wound certificates

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got marked through PW-22 but the prosecution has not produced and marked the X-ray film or X-ray report before the trial Court in order to show that the injuries sustained by PWs.3 and 5 are grievous in nature. In this regard, this Court in the case of State v. Sheenappa Gowda and others reported in 2011(4) KCCR 2759 has held that non-production of X-ray or X-ray report before the Court, the Court cannot come to the conclusion that the injuries caused to the PWs.1 and 4 are grievous in nature. Following the said judgment, this Court has held in various judgments that production of X-ray film, X-ray report or scanning report along with

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the wound certificate is necessary to prove the injuries are grievous in nature and it has to be considered as injury is simple in nature. Even on perusal of Exs.P-15 and 17 it is stated that injury is on the right Maxilla could also be caused if a person falls on the hard object and another injury sustained by PW-1 on the left eye brow and fracture of left radius sustained by PW-4 which could also be caused is a person falls on the surface. Therefore, the X-ray report or the X-ray film is necessary to consider that those injuries are grievous in nature and are caused by assaulting with deadly weapons. Though the prosecution seized and produced iron rods and the stones but without production of X-ray and X-ray report, it cannot be considered that injuries sustained by PWs.1 and 4 are grievous in nature as stated by PW-22 in Exs.P-15 and 17. Therefore, the judgment of the trial Court in respect of finding guilt of the accused for the offence under Section 326 of IPC is required to be modified and the respondents are to be convicted for the offence under Section 324 of IPC.

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In view of the finding that this Court finds the respondents guilty for the offence under Section 324 of IPC, the

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sentence of imposing fine need not be required to be enhanced as inadequate.

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However, with regard to the contention raised by the prosecution that once the trial Court find the accused guilty for the offence under Section 326 of IPC, minimum punishment prescribed should be imposed but not inadequate sentence or till rising of the Court hours should be imposed it is bad in law and against the judgment of Supreme Court.

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In this regard though this Court held in the earlier point

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that this Court finds the respondents guilty of the offence under Section 324 of IPC but not 326 of IPC, however, if the trial Court finds the accused guilty for the offence under Section of 326 of IPC, imposition of punishment till rising of the Court hours is illegal and against the judgment of the Hon’ble Supreme Court in the case of

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George Pon Paul v. Kanagalet and Others reported in (2009) 13 Supreme Court Cases 478 wherein it is held as under:

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“ 6. The High Court found no merit in the revision petition filed by the appellant questioning his conviction but held that in view of the provision of Section 326, custodial sentence has to be there. Accordingly, while maintaining the conviction the sentence was enhanced.”

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and also in the Mangal Singh’s case (supra) the Hon’ble Supreme Court has held as under:

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“ 12. But the same view cannot be taken on the question of sentence. In view of the nature of injuries suffered by appellant 2 only a fine of ` 3500/- appears wholly inadequate. In certain circumstances, the court may not feel inclined to send the convict to jail and the offence being an old one may be a relevant consideration. But in such cases, the custodial sentence should be substituted by heavy fine; something that should pinch the offender and make him feel and recall the offence committed by him. At the same time that should appear to the victim of the offence as at least some punishment to the offender. Further, in a given case there may be considerations that may outweigh the argument in favour of not sending the offender to jail simply because the offence was committed long ago.”

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19. The Division Bench of this Court in State by Kumsi

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Police stated (supra) has held that there shall be at least minimum sentence for the offence under Section 326 of IPC. Therefore, by considering the judgment of the Hon’ble Supreme Court as well as the Division Bench of this Court, I hold that the trial Court committed an error in imposing the sentence of imprisonment till rising of the Court for the offence under Section 326 of IPC and the same is illegal and against the provisions of Section 326 of IPC and

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also the principles laid down by the Hon’ble Supreme Court in

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Mangal Singh’s case (supra) .

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However, in view of my finding that the respondents are found guilty of the offence under Section 324 of IPC holding that the injuries are simple in nature, therefore, the question of enhancing the sentence imposed by the trial Court holding the same as inadequate for the offence under Section 326 of IPC, does not arise. Hence, the appeal is liable to be dismissed.

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21. Accordingly, I pass the following order

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The criminal appeal filed by the State is dismissed.

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This Court while appreciating the assistance rendered by the Amicus Curiae Sri.Vijay Chiniwar fixes his at Rs.1,000/-. The registry is directed to pay Rs.1,000/- to the learned Amicus Curiae for the respondents/accused as remuneration.

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Sd/JUDGE

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kmv

State of Karnataka v. M. Nagaraja Reddy S/O.M. Bheemann

Case brief

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State of Karnataka v. M. Nagaraja Reddy S/O.M. Bheemann

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