Partly allowed

Sri Devaraj v. State by Srirampura Police

Karnataka HC20 Jul 2021CRL.RP/217/2012

Case brief

AI extract

What is this about?

High Court allowed criminal revision partly, scaling down conviction from Section 326 to Section 324 IPC due to lack of X-ray evidence proving fracture. Court modified sentence to include fine and ordered compensation to victim.

What did the court decide?

Conviction from Section 326 IPC downgraded to Section 324 IPC. Accused ordered to pay fine of Rs.10,000/- with Rs.8,000/- as compensation to victim.

Sri Devaraj Vs State by Srirampura Police — Cheating and Forgery | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 20^TH DAY OF JULY, 2021

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE V.SRISHANANDA

¶6

CRIMINAL REVISION PETITION NO.217 OF 2012

¶7

BETWEEN :

¶8

SRI.DEVARAJ, S/O SHIDDANGAIAH, AGED ABOUT 29 YEARS, NO.42, 5^TH CROSS, PAPANNA BLOCK, SRIRAMPURA, BANGALORE – 03.

¶9

…PETITIONER

¶10

(BY SRI.SURESH S.M., ADVOCATE)

¶11

AND :

¶12

STATE BY SRIRAMPURA POLICE, BANGALORE. REPRESENTED BY STATE PROSECUTOR.

¶13

…RESPONDENT

¶14

(BY SRI SHOWRI H.R., HCGP)

¶15

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 10.06.2002 PASSED IN C.C.NO.16724/1998 PASSED BY THE VII ADDL.C.M.M., BANGALORE AND SETTING ASIDE THE ORDER DATED 18.12.09 PASSED IN CRL.APPEAL NO.329/02 ON THE FILE OF THE P.O., FTC – VIII, BANGALORE CITY.

¶16

¶17

THIS CRIMINAL REVISION PETITION COMING ON OR HEARING THIS DAY THROUGH VIDEO CONFERENCING, THE COURT MADE THE FOLLOWING:-

¶18

ORDER

¶19

The convicted accused No.1 is in Revision challenging the validity of the order dated 10.06.2002 passed in C.C.No.16724/1998 and confirmed by order dated 18.12.2009 passed in Crl.A.No.329/2002.

¶20

Brief facts which are necessary for the disposal of the revision petition are as under:

¶21

Upon the complaint lodged by the injured - Panduranga (PW.1), the Srirampura Police registered a case in Crime No.51/1998 for the offences punishable under Sections 323, 324 read with Section 34 of IPC.

¶22

After thorough investigation, the Police filed a charge sheet against two accused persons for the offences punishable under Sections 323, 324 and 326 of IPC.

¶23

The presence of the accused was secured before the Court and charge was framed against accused

¶24

¶25

and the substance of the charge was explained to the accused in the language known to him. Accused persons pleaded not guilty and claimed for trial.

¶26

In order to bring home guilt of the accused, prosecution examined five witnesses as PW.1 to PW.5 and relied on the documentary evidence, which are exhibited and marked as Exs.P.1 to P.6 and one material object as MO.1.

¶27

On conclusion of prosecution of evidence, learned Magistrate recorded the statement under Section 313 of Cr.P.C. wherein the accused persons denied all incriminating circumstances found against them and did not offer any explanation to the incident. Thereafter, the learned Magistrate heard the argument on both the sides and after considering the oral and documentary evidence on record, convicted accused No.1 for the offence punishable under Section 326 of IPC and accused No.2 was acquitted of all charges.

¶28

¶29

After considering the necessary evidence on record, the trial Magistrate has formed an opinion that accused is not entitled for the benefit under the provisions of the Probation of Offenders Act, 1958 (‘the PO Act’ for short) and sentenced the accused to undergo Simple Imprisonment for a period of two years for the offence punishable under Section 326 of IPC and did not order any fine.

¶30

Being aggrieved by the said judgment and order of conviction, the accused preferred an appeal before the Sessions Court which was numbered as Crl.A.No.329/2002.

¶31

Learned Judge in the First Appellate Court after securing the trial Court records and hearing the arguments in detail, by order dated 18.12.2009 confirmed the judgment passed by the trial Court upholding the finding that accused is guilty of the offence punishable under Section 326 of IPC.

¶32

¶33

Being aggrieved by both the orders, accused

¶34

No.1 is before this Court in this revision petition.

¶35

Learned counsel for the revision petitioner Sri Suresh S. M., vehemently contended that both the Courts have erred in law in convicting the accused for the offence punishable under Section 326 of IPC.

¶36

To substantiate his contention, he drew the attention of this Court that the Doctor who issued Ex.P.6 - Wound Certificate is not at all examined by the prosecution and in the absence of oral testimony of the Doctor who issued Ex.P.6, the trial Court ought not to have convicted for the accused under Section 326 of IPC and prayed for allowing the revision petition.

¶37

He also pointed out that seizure of chopper which is marked at MO.1 is also not proved by the prosecution in as much as both the mahazar witnesses have turned hostile to the case of the prosecution and therefore, there is no evidence on record.

¶38

¶39

Further, he contended that the prosecution witnesses are all relatives and therefore, their testimony is to be treated as interested testimony and the same cannot be made as basis for recording the order of conviction.

¶40

Alternatively, he contended that in the event of this Court confirming the conviction order, leniency may be shown and award only fine having regard to the fact that the incident is of the year 1998 and more than two decades have elapsed and the incident would have faded in the memory of both victim as well as the society at large and prays for taking a lenient view.

¶41

Per contra, learned HCGP Sri H. R. Showri supported the impugned judgment and vehemently contended that having regard to the scope of revisional jurisdiction, hardly any scope is left for this Court to interfere with the order of conviction especially when both the Courts have concurrently held on facts that the injury

¶42

¶43

found on the body of PW.1 is caused by the accused by the use of MO.1.

¶44

In view of rival contentions, the sole point that would arise for consideration is:

¶45

"Whether the finding recorded by the learned Magistrate that the accused is guilty of offence punishable under Section 326 of IPC, and confirmed by the first Appellate Court is suffering from legal infirmity, perversity or patent error so as to call for interference by this Court?

¶46

In the case on hand, PW.1 is the injured witness. The Wound Certificate marked at Ex.P.6 clearly depicts that there was a blood injury on the left ring and middle fingers partially severed with phalanges hanging by the side.

¶47

The said evidence corroborated by the oral testimony of PW.4 who is on independent witness.

¶48

Based on the oral testimony of PWs. 1 and 4 with the aid of Wound Certificate marked at Ex.P.6,

¶49

¶50

learned Magistrate held that the accused is guilty of the offence punishable under Section 326 of IPC. Obviously, the trial Magistrate was swayed away by the opinion given by the Doctor treating the injury as grievous in nature.

¶51

It is true that the recovery of material object is not proved as the panch witnesses have turned hostile to the case of the persecution.

¶52

But having regard to the nature of injury, it could not have been caused unless a sharp edge weapon is used in the incident.

¶53

The finding recorded by the learned Magistrate holding accused No.1 guilty of the offence under Section 326 of IPC was subject matter before the Sessions Court in Crl.A.No.329/2002.

¶54

Learned Sessions Judge after considering the entire material on record and after re-appreciating the material on record, concurred with the finding recorded by the learned Magistrate.

¶55

¶56

In a matter of this nature how to appreciate the material on record and what are the ingredients required to attract the offences under Section 326 of IPC is no longer res-integra.

¶57

In order to establish that an injury is a grievous injury especially when the prosecution comes out with a case of fracture, it is incumbent on the prosecution to prove the fractured injury by producing original X-ray film and on radiological and examining the expert in this regard.

¶58

In the back ground of said requirement, when the material available on record is appreciated, it is seen that even though in Ex.P.6, there is a mention about the fracture, there is no mention of taking X-ray or radiological report has been relied upon by the author of Ex.P.6 before classifying the injury as grievous in nature. Crowning all these things, prosecution failed to examine the author of

¶59

¶60

Ex.P.6 who has seen the injured for the first time and given treatment.

¶61

In the absence of such evidence on record in this regard, gainfully this Court can rely upon the judgment of this court in the case of State Vs. Sheenappa Gowda and Others reported in MANU/KA/1704/2010, wherein it is categorically held that production of X-ray film and/or radiological report is a must for forming an opinion that an injury is a grievous injury especially while deciding the injury as a fracture.

¶62

Clinical examination and expertise of the doctor may not be sufficient enough in every case to decide an injury as a grievous injury as the consequences of penal provisions which are attributable for a grievous injury is severe when compared to simple hurt. More over, oral testimony of a doctor could be classified as an expert evidence as contemplated under Section 45 of the Indian Evidence Act. It is well settled that expert evidence need

¶63

¶64

not be believed in toto in every case unless the same does not require corroboation in a given case.

¶65

In the case on hand, in the absence of original X-ray film being not produced nor Radiological report made available, finding recorded by the Trial Court that the injuries are grievous in nature cannot be countenanced. Accordingly, this Court is of the considered opinion that the finding recorded by the trial Court as well as the First Appellate Court in the absence of any cogent and convincing evidence on record, can be treated as patent defect on record whereby there is a need for this court to exercise powers vested in the revisional jurisdiction, to interfere with the finding of the Trial Court as well as the first Appellate Court to that extent.

¶66

Following the principles laid down in the aforesaid decision, this Court is unable to agree with the submission made on behalf of prosecution and that the Ex.P.6 is enough to establish that PW.1 sustained grievous

¶67

¶68

injury inasmuch as non-examination of author of Ex.P-6 defence has been deprived of cross examining the author.

¶69

In the absence of such evidence on record, since there was a blood injury caused to PW.1 by the use of material object as it is categorically deposed by PWs.1 and 4 that the offence alleged against the accused is to be scaled down from Section 326 to 324 of IPC.

¶70

Consequently, the sentence as ordered by the learned Magistrate also needs to be modified.

¶71

Learned counsel for the revision petitioner submitted that the incident is of the year 1998 and accused is now married and having children and decently settled in his life. At this juncture, if he is imprisoned, it will have various other consequential effects on his family.

¶72

It is also noticed from the impugned judgment of the learned Magistrate and that of the First Appellate Court that while passing the sentence, trial Magistrate

¶73

¶74

failed to consider the punishment aspect under Section 326 of IPC and did not impose any fine.

¶75

Therefore, no amount of compensation was also paid to the victim / injured as contemplated under Section 357 of Cr.P.C. Accordingly, as discussed supra, this court having scaled down the offence from Section 326 to 324 of IPC, this Court is of the considered opinion that the custody period already undergone by the accused during the trial be treated as imprisonment and ordered to pay fine of Rs.10,000/- it would meet ends of justice. Out of the fine amount recovered, if a sum of Rs.8,000/- is paid to the victim / injured as compensation, the object of Section 357 of Cr.P.C. would also be met.

¶76

Accordingly the point is answered partly in the affirmative and following order is passed:

¶77

ORDER

¶78

1. The revision petition is allowed in-

¶79

part.

¶80

¶81

2. Accused is convicted for the offence punishable under Section 324 of IPC instead of Section 326 of IPC and the period of custody undergone by the revision petitioner during the trial is treated as period of imprisonment and ordered to pay a fine of Rs.10,000/- within a period of four weeks in default sentenced for a period of one year Simple Imprisonment.

¶82

3. If the fine amount is deposited, the sum of Rs.8,000/is to be paid as compensation to the victim / injured on proper identification under Section 357(3) of Cr.P.C.

¶83

Office is directed to return the trial Court records

¶84

with the copy of this order forthwith.

¶85

Sd/JUDGE

¶86

HA/PL*

Sri Devaraj v. State by Srirampura Police

Case brief

What is this about?

What did the court decide?

Sri Devaraj v. State by Srirampura Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manju S/O Armugam Vs the State of Karnataka

Putta Naik Vs State by Psi

K Umesha Vs State of Karnataka

Sri Ravishankar Vs State by New Extension Police

Muralidhar Vs State of Karnataka

M C Narayana Swamy Vs State of Karnataka