Partly allowed

Ms Paniyravara Malli v. State of Karnataka

Karnataka HC30 Jul 2021CRL.RP/1015/2012

Case brief

AI extract

What is this about?

The High Court set aside the lower conviction for grievous hurt under Section 326 IPC. It reclassified the offence to Section 335 IPC due to grave and sudden provocation. The court imposed a substantial fine as compensation for the victim's eye injury.

What did the court decide?

Conviction for Section 326 IPC set aside; convicted for Section 335 IPC; sentenced to pay Rs.25,000 compensation, default to one year simple imprisonment.

Ms Paniyravara Malli Vs State of Karnataka — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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CRIMINAL REVISION PETITION NO.1015 OF 2012

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BETWEEN:

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MS. PANIYRAVARA MALLI AGED ABOUT 47 YEARS COOLIE, C/O THANACHIRA LOKESH LINE HOUSE, NITTUR VILLAGE BALELE, S.KODAGU – 571 218

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... PETITIONER

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(BY SRI S.R.SREEPRASAD, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY PONNAMPET POLICE, KODAGU DISTRICT

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... RESPONDENT

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(BY SMT.RASHMI JADHAV, HCGP)

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THIS CRL.R.P. IS FILED U/S 397 r/w 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGEMENTS OF CONVICTION DATED 25.05.2009 PASSED IN CC NO.578/2006 BY THE PRL.CIVIL JUDGE & JMFC, VIRAJPET CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 323 & 326 OF IPC AND THE JUDGEMENT In CRL. A. NO.39/2009 DATED 24/8/2012 PASSED BY THE P.O. FTC, VIRAJPET CONFIRMING THE JUDGMENT OF THE COURT BELOW, IN SO FAR AS THE OFFENCE AS THE OFFENCE U/S 326 OF IPC & ETC.,

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

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O R D E R

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The Petitioner-Accused lays a challenge to the Judgment of conviction and order of sentence dated 25.05.2009 passed by the Principal Civil Judge & JMFC, Virajpet, convicting the accused persons for the offences punishable under Sections 323 & 326 of IPC in C.C. No.578/2006, which in appeal is modified by the Judgment dated 24.08.2012 in Crl. A. No.39/2009 by the Presiding Officer, Fast Track Court, Virajpet, by acquitting the accused for the offence punishable under Section 323 IPC and confirming his conviction for the offence punishable under Section 326 of IPC.

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The case of prosecution in a nut shell are as follows:

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On 06.02.2006 at 7.00pm in Nittur Village near the line house of one Thanachira Lokesh, the accused picked up quarrel with the Complainant – Paniyeravara Chimmu. Accused abused her in filthy language and pierced her right eye with sharp edged bamboo stick thereby causing grievous injury and also caused simple

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injury on the left thumb of the Complainant. Immediately, daughter of the Complainant separated the two persons from quarrel. The injured was shifted to Madikeri Government Hospital, where she was treated as inpatient. The Doctor who examined the injured operated the right eye of the Complainant.

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In this regard a complaint came to be registered against the accused. On receipt of the complaint police registered a case, visited the spot, prepared the mahazar and recorded the statement of witnesses. After completion of investigation a charge sheet is laid for the offences punishable under Sections 323, 326 & 506 of IPC against the Accused.

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In order to prove the guilt against the accused, the prosecution in all examined 9 witnesses as PW1 to 9 and got marked 8 documents as Ex.P1 to P8 and MO1-Bamboo stick. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied all the incriminating material evidence and did not choose to lead any evidence or produce any

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documents in her favour and she claimed to be tried, accordingly she was tried.

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After considering the evidence both oral and documentary placed on record the trial court convicted the accused for the offences punishable under Sections 323 & 326 of IPC and acquitted her for the offence punishable under Section 504 IPC. The accused was sentenced to undergo simple imprisonment for a period of 3 months and fine of Rs.500/- in default to undergo SI for one month for the offence punishable under Section 323 IPC and sentenced to undergo simple imprisonment for a period of one year and fine of Rs.1,000/- in default to undergo SI for a period of two months for the offence punishable under Section 326 IPC.

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Being aggrieved, the matter being taken up in appeal, the Appellate Court partly allowed the appeal, by acquitting the accused for the offence punishable under Section 323 IPC and confirmed the conviction for the offence punishable under Section 326 of IPC.

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Hence, challenging the same the accused is before this Court in this Petition.

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Heard Sri Sreeprasad, learned counsel appearing on behalf of appellant and Smt. Rashmi Jadhav, learned High Court Government Pleader for respondent – State.

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It is the vehement contention of the learned counsel for the petitioner – accused that both the Courts below have committed serious error in not considering the omissions, contradictions and the improvements in the case of the prosecution. He further contends that the Complainant pleads ignorance with regard to the contents of the complaint and the alleged incident has not been corroborated with any eye witness despite CW2 /PW2 who is the daughter of the Complainant arrayed in the charge sheet as eye witness has not supported the case of the prosecution. This material fact has been ignored by the Courts below, whereas the benefit of doubt ought to have been extended to the accused when the case of the prosecution is not

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supported by the eye witness and the Complainant herself.

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Learned counsel further contends that it is

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admitted by the prosecutrix, namely, CW1 / PW1 that she had also consumed alcohol on the date of alleged incident, there could be a possibility of PW1 having fallen and sustained the said injuries. He further contends that the alleged eye witness PW2, who is none other than the daughter of PW1, has categorically stated in the evidence that she has not seen the accused

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poking the eye of PW1. She has also admitted in the cross examination that accused did not have MO1 – bamboo stick in her hand. Learned counsel further contends that the Courts below have failed to take note of the fact that PW2, PW3, PW7 and PW8 have turned hostile and not supported the case of the prosecution. He further contends that in view of the above omissions, contradictions and short coming in the case of prosecution the benefit of doubt ought to have been extended to the accused by acquitting her of all charges. He further contends that the Ex.P5, the wound

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certificate issued by the Doctor, reads that the injury is four days old, which is contrary to the case made out by the prosecution. On the basis of these submissions he seeks to allow the petition and acquit the accused.

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Per contra, the learned High Court Government Pleader supports the Judgment passed by both the Courts and contends that there is no illegality or perversity in the orders passed by both the Courts. Hence, no interference is called for by this Court. She further contends that the prosecution has proved the case beyond all reasonable doubt, merely because there are minor omissions, improvements and contradictions, the same cannot be the reason to acquit the accused when the over all evidence taken as a whole points out the guilt of the accused without any reasonable doubt. Learned High Court Government Pleader contends that PW2, daughter of PW1, was in the house when the alleged incident took place and she has narrated the same in her evidence, which cannot be disbelieved and her evidence is corroborated by the testimony of the other witnesses and that of the doctor PW6, who issued

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wound certificate at Ex.P5. It is also forthcoming from the records Ex.P5 that the said injury is grievous in nature and the left eye of PW1 was ruptured. She further contends that all the material evidence and documents have been carefully analysed by the trial court which on re-appreciation has been considered by the Appellate Court by acquitting the accused for the offence punishable under Section 323 IPC and rightly convicted the accused for the offence punishable under Section 326 of IPC. Hence, she seeks for dismissal of the revision petition.

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Having heard the learned counsel for parties, what is to be considered by this Court is whether the Courts below have committed any illegality or perversity in passing the impugned Judgment.

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On careful perusal of the entire materials placed on record it is seen that the trial court on detailed appreciation of the material evidence arrived at a conclusion of convicting the accused for the offences punishable under Sections 323 and 326 of IPC, which in

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appeal modified and the accused was acquitted for the offence punishable under Section 323 IPC and convicted for the offence punishable under Section 326 IPC.

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The Appellate Court while re-appreciating and analyzing the entire evidence has considered the contentions urged by the learned counsel for the accused and based on the material placed before the Court has acquitted the accused for the offence punishable under Section 323 of IPC and convicted the accused for the offence punishable under Section 326 of IPC .

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In the present case on hand, the prosecutrix who is PW1 has herself stated that she does not know what is written in the complaint and has further stated that since it was a holiday she had consumed alcohol along with others. PW2, the daughter of PW1, who has arraigned as an eye witness has stated that she has not seen the accused poking the eye of PW1. She has also further stated that accused did not have MO1-Bamboo stick in his hand.

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This Court cannot step into the arm chair of an Appellate Court to re-appreciate and reanalyze or revisit the evidence unless grave circumstances are shown before this Court to establish that the material evidence placed before the Court has been totally ignored or not considered by both the Courts below. It is not in dispute that quarrel took place between PW1 and accused due to which she sustained injuries. The prosecution witnesses have supported the case despite few witnesses turning hostile and the same will not dislodge the case of the prosecution. However, it is essential to note the evidence of PWs.1 and 2, more specifically PW.2 has stated that neither she has seen the accused having M.O.1-bamboo stick in his hand nor she has seen the accused poking the eye of PW.1. The fact remains that PW.1 has sustained serious eye injury for which she has undergone surgery. It is also stated across the Bar that the accused and the complainant are residing in the same locality of Nittoor Village in line house. It is the evidence of PW.1 that while she had gone to bring water, her husband was talking to the

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accused, which was objected to by her led to the quarrel leading to the injuries caused by the accused to PW.1. These are some of the undisputed facts of the case. Having gone through the evidence adduced by the prosecution and the cross-examination by the defence, it appears that the complainant and accused are residents of the same locality and a quarrel has ensued while collecting water.

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In my opinion, it may not attract the provision of Section 326 of IPC whereas it may fall within the category of Section 335 of IPC which is caused out of grave and sudden provocation leading to grievous hurt and the same is corroborated by the Doctor-PW.6 and so also in Ex.P5-wound certificate. Hence, the finding of the Appellate Court with regard to the offence falling under Section 326 of IPC would not be right.

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Under the above circumstances, having perused the entire material evidence of the witnesses and the submissions of the learned counsel of both

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parties, I am in agreement with the contention of the learned counsel for the accused that the above offence would not fall within the category of Section 326 of IPC and would squarely fall within the ambit of Section 335 of IPC. However, what cannot be ignored is the fact that PW.1 has undergone eye surgery which is a grievous injury because of the act of the accused incurring expenditure for the treatment and postoperative difficulties.

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It is to be seen that while passing an order of sentence several factors will have to be considered by the Courts and the same will have to be determined on the basis of the proportionality of the crime. The said proportionality further depends upon factors like the motive and intent in planning of the crime, weapons used in the crime, role of the accused, the gender of the victim, economic and social back ground of the accused, etc., which the Apex Court has held in the case of STATE OF MADHYA PRADESH vs UDHAM AND OTHERS reported in (2019) 10 SCC 300, as under:

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“Sentencing for crimes has to be analyzed on the touch stone of three tests viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defense, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).”

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Section 357 of Cr.P.C. makes way for award

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of compensation of such amount to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. This

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provision is hardly utilized by the Courts and even if it is utilized a negligible compensation is awarded. Whereas the object of the said provision is to arm the Court with the powers to award compensation with an intention to reassure the victim that he or she is not a forgotten party in the criminal justice system. As in most of the cases it is understood as if the compensation is generally awarded in civil litigations and not in criminal justice system as the same is provided only for inflicting penal punishment.

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In the present case on hand, the victim has undoubtedly lost her eye sight despite having undergone eye surgery and this Court in the case of THE STATE OF KARNATAKA, POLICE SUB-INSPECTOR, PATTANAYAKANAHALLI POLICE STATION, SIRA TALUK VS RANGASWAMY reported in ILR 2015 KAR 4879, has held that award of compensation under Section 357 of Cr.P.C. “it is by now well settled that the cases may arise where a provision is ‘mandatory’ despite the use of language that makes it ‘discretionary’ as has been held by the Apex Court in the case of ANKUSH SHIVAJI

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GAYAKWAD vs STATE OF MAHARASHTRA reported in (2013) 6 SCC 770.

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Further, it is necessary to mention here that Section 357A of Cr.P.C. has been incorporated in the Code of Criminal procedure (Amendment) Act 2008 (5 of 2009), which came into effect from 31.12.2009, pursuant to which the Karnataka Victim Compensation Scheme 2011 came to be notified by the State Government on 22.02.2012 for providing compensation to victims. Keeping the above aspect in mind and the injuries having been sustained by the victim / Complainant-PW.1 a reasonable compensation requires to be awarded, which would be in proportion to the injuries sustained by the victim.

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Learned counsel for the accused has fervently argued with regard to imposition of reasonable fine amount, in view of the fact that the accused is financially very poor and he is the only bread winner of the family supporting his wife and children.

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23. For the aforesaid reasons, I pass the

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following order:

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ORDER

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(i) Petition is partly allowed ;

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(ii) The judgment of conviction and order of sentence of the accused dated 05.02.2009 passed in CC.No.578/2006 by the Principal Civil Judge (Jr.Dn.) & JMFC, Virajpet for the offences punishable under Sections 323 and 326 of IPC, which is modified by the judgment dated 24.08.2012 passed in Crl.A.No.39/2009 by the Presiding Officer, Fast Track Court, Virajpet, is hereby set aside, but convict the accused for the offence punishable under Section 335 of IPC and sentence her to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) which shall be paid as compensation to the Complainant-victim and in default of payment of the above fine / compensation

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amount, the accused shall undergo simple imprisonment for a period of one year.

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Sd/JUDGE

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Ms Paniyravara Malli v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Ms Paniyravara Malli v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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