Partly allowed

Sri Halappa v. State by Ripponpet Police

Karnataka HC1 Sept 2021CRL.RP/843/2012

Case brief

AI extract

What is this about?

High Court of Karnataka held that failure to produce X-ray reports precludes conviction under Section 326 IPC causing grievous injury. Court allowed modification of sentence to fine instead of imprisonment but confirmed conviction under Sections 324 and 504 IPC read with Section 34.

What did the court decide?

Conviction under Section 326 IPC quashed; sentence modified to fine of Rs. 20,000 each for Section 324 IPC and Section 504 IPC with 3 months imprisonment in default.

Sri Halappa Vs State by Ripponpet Police — Cheating and Forgery | Karnataka HC (2021)

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Crl.R.P.No.843/2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.843/2012

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BETWEEN :

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SRI HALAPPA

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S/O. MANJAANAIKA AGED ABOUT 46 YEARS

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SRI RAGHU @ RAGHAVENDRA S/O. SRI HALAPPA AGED ABOUT 28 YEARS

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SRI HARISHA S/O. SRI HALAPPA AGED ABOUT 23 YEARS ALL ARE R/AT JAMBLI ANEGADDE GRAMA HOSANAGAR TALUK SHIMOGA DISTRICT- 577 201 …PETITIONERS

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(BY SRI G.S.BALAGANGADHAR, ADVOCATE)

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AND :

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STATE BY RIPPONPET POLICE HOSANAGAR TALUK SHIMOGA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE- 560 001 …RESPONDENT

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(BY SRI B.J.ROHITH, HCGP)

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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 OF CONVICTION AND ORDER OF

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Crl.R.P.No.843/2012

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SENTENCE DATED 01.03.2008 PASSED BY JUDICIAL MAGISTRATE FIRST CLASS, HOSANAGAR IN C.C.NO.716/2002 AND TO SET ASIDE THE JUDGMENT DATED 31.07.2012 PASSED BY THE PRINCIPAL SESSIONS JUDGE, SHIMOGA IN CRL.A.NO.43/2008.

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THIS CRIMINAL REVISION PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Aggrieved by the order of conviction and sentence passed against them for the offences punishable under Sections 504, 324, 326 read with Section 34 of IPC, the petitioners have preferred the above revision petition.

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The petitioners were accused Nos.1, 3 and 4 in C.C.No.716/2002 on the file of Judicial Magistrate First Class, Hosanagar. For the purpose of convenience, the petitioners will be referred to as per their ranks before the trial Court.

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Accused Nos.1, 3 and 4 were tried in C.C.No.716/2002 by the trial Court for the offences punishable under Sections 504, 324, 326 read with Section 34 of IPC on the basis of the charge sheet filed by Ripponpet police, Hosanagar Taluk in Crime No.150/2001 of their Police Station.

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Crime No.150/2001 was registered against the

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petitioners and accused No.2 Girijamma on the basis of the complaint filed by PW.1 as per Ex.P1. It was alleged in the complaint that on 25.12.2001 at 3.30 p.m. in Anegadde, the accused were removing the fence erected by PW.1 to their land. It was further alleged that when PW.1 questioned that, the accused assaulted him and his wife, children with clubs and machete causing them grievous injuries.

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Admittedly, accused No.1 Halappa and the

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complainant PW.1 Byrappa are the brothers. Accused No.2 is wife and accused Nos.3 and 4 are sons of accused No.1. PWs.6 and 7 are the sons of PW.1 and PW.8 is the wife of PW.1.

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On receiving the complaint Ex.P1, CW.12 Sri Srinivasa, Police Sub-Inspector of Ripponpet police station registered the first information report in Crime No.150/2001 against accused Nos.1 to 4 and handed over the investigation to PW.9 the then Police Sub-Inspector of Ripponpet Police Station. PW.9 conducted the investigation

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and filed the charge sheet against accused Nos.1, 3 and 4 alone for the offences punishable under Sections 504, 324, 326 read with Section 34 of IPC. Based on the further statement of PW.1, he dropped accused No.2 Smt.Girijamma while filing the charge sheet.

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The trial Court on taking cognizance of the offences, registered the case in C.C.No.716/2002 and tried accused Nos.1, 3 and 4 for the charges punishable under Section 504, 324, 326 read with Section 34 of IPC.

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The case of the prosecution is as follows:

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(i) There was dispute between PW.1 Byrappa

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complainant party and the accused party with regard to the extent of land partitioned between them in Anegudda;

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(ii) The complainant party had fenced the land fallen to their share. On 25.12.2001 at 3.30 p.m., the accused tried to remove the said fence encroaching the properties of the complainant party by putting up new fence;

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(iii) When PW.1 questioned that, accused No.1

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abused him in foul language and assaulted him with clubs on his head and back;

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(iv) On hearing the commotion, PWs.6 to 8 wife and sons came to his rescue. At that time, accused No.4 assaulted on head of PW.6 with club and caused him grievous injuries;

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(v) Accused No.3 assaulted with machete on the head of PWs.8 and 7 and caused them injuries. On hearing commotion;

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(vi) PW.3 Revappa and CW.6 Dharmanaika came to the scene of offence and pacified the quarrel. The injured were shifted to the Humcha Primary Health Centre for treatment;

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(vii) PW.10 treated the injured in the hospital and issued wound certificate as per Exs.P5 to 8;

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(viii) PW.9 conducted spot mahazar, recovered MOs.1 and 2 clubs and MO.3 machete under Ex.P3. Then he collected the wound certificate, recovered the blood stained clothes of the victim under mahazar Ex.P2 and filed the charge sheet.

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The trial Court tried accused Nos.1, 3 and 4 for

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the offences punishable under Sections 504, 324, 326 read with Section 34 of IPC. On such trial, relying on the evidence of injured eyewitnesses PWs.1, 6 to 8, medical evidence of PW.10 and the evidence of Investigating Officer PW.9, the trial Court convicted accused Nos.1, 3 and 4 for the charges brought against them. Further the

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trial Court sentenced accused Nos.1, 3 and 4 as follows:

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Sl. No	Offences under Section	Sentence of imprisonment	Fine Amount In Rs.	Default sentence
1	504 r/w Sec 34 of IPC	Nil	200/-	Simple imprisonment of 10 days
2	324 r/w Sec 34 of IPC	Simple imprisonment of 3 months	200/-	Simple imprisonment of 10 days
3	326 r/w Sec 34 of IPC	Simple imprisonment of 2 years	1,000/-	Simple imprisonment of 3 months

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Aggrieved by the said judgment and order of the trial Court, accused Nos.1, 3 and 4 preferred Crl.A.No.43/2008 before the Principal Sessions Judge, Shimoga. The First Appellate Court on hearing the parties concurring with the trial Court, by the impugned judgment dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the petitioners have preferred this revision petition.

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11. Sri G.S.Balagangadhar, learned Counsel for the

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petitioners reiterating the grounds of the petition seeks to assail the impugned judgments and orders of the Courts below on the following grounds:

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(i) Regarding the same incident, the accused party had also filed complaint against PW.1 Byrappa and one Devamma said to be wife of Byrappa;

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(ii) PW.1 and Devamma were tried in C.C.No.592/2002 by the same Court and were acquitted. C.C.No.716/2002 being case and counter case should have tried together and that has caused prejudice to the accused;

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(iii) There was no evidence to show that PW.6 had suffered grievous injuries/fracture.

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(iv) X ray films and the radiologist report were not produced and the doctor who took those X rays and gave report was not cited as charge sheet witness. Therefore conviction for the offence punishable under Section 326 of IPC was not sustainable;

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(v) Since there were cases and counter cases, on joint trial, the trial Court should have decided who was the

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aggressor. On that ground accused Nos.1, 3 and 4 are

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entitled for acquittal; &

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(vi) The incident happened in the year 2001. The

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accused have faced the proceedings for about 20 years. They have no criminal antecedents. Looking to that the sentence of imprisonment may be modified by enhancing the sentence of fine.

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12. In support of his contentions, he relies upon

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the following judgment:

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State Vs. Sheenappa Gowda¹

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Akhi alias Akhil Behera v. State of Orissa²

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State of Punjab Vs.Harinder Singh @ Raju³

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P.Johnson v. State of Kerala⁴

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State of Orissa v. Kanhu Mohapatra and Another⁵

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Aher Rama Gova and others Vs. State of Gujarat⁶

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Wasakha Singh Vs. State of Punjab⁷

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Baldev Singh Vs. State of Punjab⁸

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State of Rajasthan Vs. Govind Chand & Ors⁹

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1 LAWS(KAR) 2010 3 38

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2 1996 CRI.L.J. 2352

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3 LAWS(P & H) 2008 2 81

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4 1998 CRI.L.J.3651

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5 2005 CRI.L.J.3361

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6 AIR 1979 SC 1567

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7 LAWS (P&H) 1984 1 35

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8 LAWS (P&H)-1995-11-93

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9 2009 CRI.L.J.(NOC) 173 (RAJ.)

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Per contra, Sri B.J.Rohith, learned HCGP for

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the State seeks to justify the impugned orders of conviction and sentence on the following grounds:

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(i) The trial Court and the First Appellate Court in appreciating and re-appreciating the evidence have taken up the concurrent view that the charges are proved. This Court in revisional jurisdiction cannot interfere with such findings;

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(ii) The accused themselves have not sought joint trial in case of counter cases and it is not open to them to raise that point for the first time in this revision petition;

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(iii) The evidence of the injured witnesses with regard to the incident, weapons, particulars of the assailants is cogent and consistent and that is sufficient to convict the accused for the charges brought against them; (iv) PW.10 the doctor has not only given opinion based on the clinical examination, but he has also referred the X ray and X ray report. Therefore non production of X ray and X ray reports and non-examination of the radiologist is not fatal.

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(v) Considering the nature of the injuries suffered

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by PW.6 and the weapon used by the accused, the sentence imposed by the trial Court is just and reasonable.

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In support of his contentions, he relies upon the following judgments:

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Ravinder Singh v. State of Haryana¹⁰

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Sevaka Perumal v. State of T.N.¹¹

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Mahiboob v. The State of Karnataka¹²

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This being revision petition against the concurrent findings of the Courts below, the scope for interference in such findings is very limited. Unless it is shown that the impugned orders of conviction and sentence suffer glaring illegality, impropriety or incorrectness, there is no scope for interference.

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It is no doubt true that regarding the same incident, accused No.1 filed complaint against PW.1 and one Devamma and they were tried in C.C.No.592/2002 and acquitted by the judgment of the trial Court on

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10 (2015) 11 SCC 588

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11 (1991) 3 SCC 471

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12 Crl.A.No.3567/2010 DD 12.02.2015

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30.08.2005. That judgment has attained finality. Subsequently, the accused in this petition were tried in C.C.No.716/2002 and were convicted by the impugned

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judgment and order dated 01.03.2008. Though the accused were aware of the proceedings in C.C.No.592/2002 did not bring to the notice of the trial Court about C.C.No.592/2002 and C.C.No.716/2002 being case and counter cases and seek trial together.

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For the first time, before the First Appellate Court, the accused produced the copy of the judgment in C.C.No.592/2002. Such ground was not raised in the appeal memo before the First Appellate Court. In the aforesaid circumstances, there is no merit in the contention that the whole trial was vitiated for not conducting the joint trial in C.C.No.592/2002.

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Section 461 of Cr.P.C deals with irregularities which vitiate proceedings. Section 461 does not say that failure of the trial Court to conduct joint trial in case and counter cases vitiates trial. The case of the prosecution was based on the evidence of injured eyewitnesses PWs.1,

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6 to 8 and the eyewitness PW.3, medical evidence of PW.10 and the Official witness Investigating Officer PW.9. PWs.1, 6 to 8 in their depositions categorically spoke about the presence of accused Nos.1, 3 and 4 at the scene of the offence and their overt acts .

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The very fact of accused No.1 filing complaint against PW.1 and Devamma goes to show that he admitted the presence of himself and PW.1 at the scene of offence. The judgment in C.C.No.592/2002 further indicates that accused No.1 alleged that PW.1 and Devamma assaulted accused No.3 and caused him injuries, thereby the presence of accused No.3 at the scene of offence also stands proved.

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Soon after the incident, PWs.1, 6 to 8 were taken to Humcha Primary Health Care Centre with history of assault at Byrappa’s house and PW.10 examined them and issued wound certificates as per Exs.P5 to P8. Nothing was elicited in the cross-examination of PW.10 to show that he was the interested witness. Therefore there was no

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reason to disbelieve that PWs.1, 6 to 8 suffered injuries and assault.

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Then the only question was about nature of the injuries. Except the injury suffered by PW.6 which was grievous in nature, the injuries of other witnesses namely PWs.1, 7 and 8 were simple in nature. Based on the evidence of PW.10 and Ex.P5, the trial Court and the First Appellate Court arrived at the conclusion that PW.6 suffered grievous injuries.

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According to PW.10 on clinical examination he found tenderness all over the scalp and repeated vomiting, Therefore he referred PW.6 to Higher Medical Center at Thirthahalli for treatment. He further says that as per the information of the doctor at Thirthahalli, PW.6 suffered fracture of front bone of the head. The said doctor of Thirthahalli was not cited as charge sheet witness. Though Ex.P5 refers to X ray report issued by Mc Gann Hospital, Shimoga, it does not even show that the said X ray and X ray report were sent to PW.10. PW.10 does not even speak to that effect.

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23. The Division Bench of this Court in Sheenappa

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Gowda’s case referred to supra in similar circumstances in case of grievous injuries in para 11 of the judgment held as follows:

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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 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 PW.1 would only show that there was injury as described in the wound certificate – Ex.P2. When PW.1 suspected such fracture, he ought to have referred the injured – PW.4 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

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fracture opined by the Doctor on medical examination clinically, it cannot be said that the

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accused have caused grievous injury of fracture . It is true that in the cross-examination of PW.1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, the same would not dispense with the production of the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is

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an opinion given by PW.1 Doctor only on clinical examination of PW.4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos.1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified.”

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(Emphasis Supplied)

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To claim conviction for the charge under Section 326 of IPC, the prosecution has to prove that the victim suffered grievous injuries as defined under Section 320 of IPC. According to the prosecution, PW.6 has suffered fracture of front bone of the head. Therefore the initial burden of proving that fact was on the prosecution. The prosecution neither produced X ray or X ray report

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issued by Mc Gann Hospital or cited the doctor of

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Thirthahalli hospital as charge sheet witness. Even during the trial, the learned Public Prosecutor did not choose to summon those witnesses or documents.

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Having regard to such circumstances and the judgment in Sheenappa Gowda’s case referred to supra conviction of the accused for the offence punishable under Section 326 read with Section 34 of IPC does not sustain. The prosecution evidence construed to hold that PW.6 suffered simple injuries attracting the offence punishable under Section 324 of IPC.

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So far as reduction of sentence, the major offence is one under Section 324 of IPC which carries imprisonment upto three years or fine or both. In the case on hand, the parties were related to each other and there were allegations of assault to each of the parties. The accused have faced the proceedings since 2001 i.e. almost for about 20 years. The judgment in C.C.No.592/2002 refers to two wound certificates as per Exs.P3 and P4 that shows that accused party had also suffered injuries in the incident.

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27. In Harinder Singh @ Raju’s case relied upon

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by learned Counsel for the petitioners and Ravinder Singh’s and Sevaka Perumal’s cases relied upon by learned HCGP, the same principles are enunciated. It was held that the question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. It is further held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. It is further held that at the same time there shall not be disproportionate imposition of sentence. It was further held that the Court has to take decision based on the facts and circumstances of each case.

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In the light of the facts and circumstances discussed above, this is a fit case to modify the sentence from the sentence of imprisonment to sentence of fine increasing the amount of fine. Therefore the petition is partly allowed.

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The impugned order of conviction passed against the petitioners for the offences punishable under Sections 324 and 504 read with Section 34 of IPC is confirmed. The impugned order of conviction and sentence for the offence punishable under Section 326 read with Section 34 of IPC is hereby modified as follows:

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Accused Nos.1, 3 and 4 are convicted for the offence under Section 324 read with Section 34 of IPC and sentenced to fine of Rs.20,000/- each. In default to pay the said fine amount they shall serve simple imprisonment for three months.

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The sentence imposed by the trial Court with regard to Section 504 read with Section 34 of IPC is maintained.

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By exercising the power under Section 357(b) of Cr.P.C., out of fine amount of Rs.60,000/-, Rs.50,000/- is ordered to be paid to PW.6 Shivamurthy and remaining Rs.10,000/- shall be remitted to the State towards defraying the prosecution expenses.

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The order of the trial Court with regard to payment of compensation is modified accordingly.

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The trial Court shall issue modified warrant

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accordingly.

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The accused shall deposit the fine amount within

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