Partly allowed

Maratti Ravi S/O Shankarappa v. the State of Karnataka by

Karnataka HC8 Jun 2023CRL.A/100079/2014

Case brief

AI extract

What is this about?

The High Court confirmed the Sessions Judge's conviction for offences under Sections 323, 504, and 316 IPC. The Court modified the sentence for Section 316, reducing imprisonment from two years to one year and directing a fine of Rs.25,000 to be paid as compensation.

What did the court decide?

Conviction confirmed for Sections 323, 504, 316 IPC. Sentence for Section 316 reduced to one year; fine of Rs. 25,000 directed as compensation.

Maratti Ravi S/O Shankarappa Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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1 - CRL.A No. 100079 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8^TH DAY OF JUNE 2023

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BEFORE

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THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL APPEAL NO.100079 OF 2014

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BETWEEN:

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MARATTI RAVI, S/O: SHANKARAPPA, AGED ABOUT 29 YEARS, OCC: LABOURER, R/O: SHIBARADINNI, KAMPLI, DIST: BELLARY.

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…APPELLANT

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(BY SRI.GODE NAGARAJ, ADVOCATE)

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AND:

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.06.29 13:21:10 +0530

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THE STATE OF KARNATAKA BY THE P.S.I., KAMPLI POLICE STATION, BELLARY DISTRICT, REPRESENTED BY S.P.P., HIGH COURT, DHARWAD BENCH BUILDING, DHARWAD-580 011.

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…RESPONDENT

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(BY SRI.V.M.BANAKAR, ADDL. SPP.)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET-ASIDE JUDGEMENT AND ORDER OF CONVICTION DATED:24.02.2014 PASSED BY THE II ADDL.DISTRICT & SESSIONS JUDGE, BELLARY, SITTING AT HOSPET, IN S.C.NO.78/2013 FOR AN OFFENCE PUNISHABLE U/SECS.323,504 AND 316 OF I.P.C. AND ACQUIT THE APPELLANT FOR CHARGES LEVELED AGAINST HIM.

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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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The accused/appellant has filed the present appeal against the judgment and order of conviction and sentence dated 24.02.2014 passed by the learned III Additional District and Sessions Judge, Bellary, sitting at Hospet, sentencing him to undergo simple imprisonment for a period of 6 months for an offence under Section 323 of the Indian Penal Code, (hereinafter referred to as 'IPC', for brevity); to undergo simple imprisonment for a period of 1 year and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of 3 months for an offence under Section 504 of IPC and sentenced to undergo simple imprisonment for a period of 2 years and to pay fine of Rs.5,000/- in default, to undergo simple imprisonment for a period of 6 months for an offence under Section 316 of IPC.

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(i) Brief facts of the case are that:

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On 12.03.2013 at about 8:00 pm, PW.4-Huligemma

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was sitting along with her son Ganesh-PW.5, her daughter Smt. Hanumanthamma-PW.1 on cot in front of her house, at that time, the accused came there and abused PW.4 in filthy

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language, intentionally insulted to provoke the breach of peace of PWs.1, 4 and 5. Hence, PW.4 got afraid and woke up from the cot and stood by the side of PW.6-Manjunath. In this regard, PW.5-Ganesh requested him that, they are sitting outside as there is no air inside the house, for which, the accused once again abused PWs.4 and 5 in filthy language and also intentionally insulted them to provoke their breach of peace, assaulted with his hands on PWs.4 and 5 on their cheek and chest. Hence, PW.4 sustained injuries on her chest and left rib. As PW.6-Manjunath came to pacify the quarrel, the accused pushed him and held the tuft of PW.1-Hanumanthamma, dragged her, assaulted her with his hands, at that time, PW.6-Manjunath requested the accused not to beat her as she is 3 months pregnant. In spite of request made by PW.6, the accused forcefully assaulted on her abdomen by his right leg and caused abortion to her. The accused also threatened PWs.1, 4, 5 and 6 to eliminate them. Hence, on the aforesaid incident, PW.1 lodged a complaint before the Kampli Police Station as per Ex.P-1.

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On the basis of the complaint, the Kampli Police

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registered a case against the accused in Crime No.44/2013 for the offences punishable under Sections 506, 504, 316, 323, 354 and 326 of IPC. The Investigating Officer conducted investigation and filed charge sheet.

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After committal of the case to the Court of Sessions, the learned Sessions Judge framed charges for the offences punishable under Sections 504, 323, 316 and 506 of IPC and read over to the accused. The accused pleaded not guilty and claimed to be tried.

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In order to prove the charge against the accused, the prosecution in all examined 13 witnesses as PWs.1 to 13 and got marked 9 documents as per Exs.P-1 to P9. After completion of the evidence on behalf of the prosecution, the statement of the accused was recorded by the trial Court as contemplated under Section 313 of the Code of Civil Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity). The accused denied all the incriminating materials appearing against him but he did not lead any defence evidence.

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(ii) Finding recorded by the learned Sessions Judge:

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Based on the oral and documentary evidence on

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record, the learned Sessions Judge framed the following points for consideration:

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(i) Whether the prosecution proves beyond all reasonable doubts that on 12.03.2013 at about 8:00 p.m. the P.W.4-Smt.Huligemma was sitting on cot infront of her house at Shibaradinni, Kampli Town, and at that time the accused intentionally insulted her by abusing in filthy language as '' ¯ÉÃ ªÀÄÄ¢ ¸ÀÆ¼É zÁjAiÀÄ°è ªÀÄÄAZÀ ºÁQPÉÆAqÀÄ K£ÀÄ ¸ÉAl ªÀiÁrÛÃ zÁj ©lÄÖ PÀÄAzÀæ¯ÉÃ'' and also abused P.W.5- Ganesha in filthy language as "zÁj ©lÄÖ PÀÄAzÀÄæ CAzÉæ £À£ÀUÉ ºÉÆÃUÀÄ CAwAiÀiÁ gÉÆÃqÉÃ£ÀÄ ¤ªÀÄäªÀé£ï «ÄAqÀAzÀ K£À¯ÉÃ ¸ÀÆ¼ÉÃ ªÀÄUÀ£À" and thereby gave provocation to them knowing that such provocation would cause them to break public peace and thereby committed an offence punishable u/S 504 of I.P.C.?

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(ii) Whether the prosecution further proves beyond all reasonable doubts that on the same date, time and place the accused beaten on the check of P.W.5- Ganesha by

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hands and he pushed P.W.4-Huligemma and she fell down to drainage and sustained injuries on chest and left rib, and he held the tuft of P.W.1 Smt.Hanumantamma and dragged her and beaten her by hands and thereby committed an offence punishable u/S 323 of I.P.C.?

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(iii) Whether the prosecution further proves beyond all reasonable doubts that on the same date, time and place the accused forcefully kicked on the abdomen of P.W.1Hanumanthamma by right knee and at that time she was 3 months pregnant and if he thereby caused death, he would be guilty of culpable homicide and by such act caused the death of quick unborn child of P.W.1 and thereby committed an offence punishable U/Sec.316 of I.P.C.?

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(iv) Whether the prosecution further proves beyond all reasonable doubts that on the same date, time and place the accused committed criminal intimidation by threatening the life of P.W.1, P.W.4 and P.W.5 and thereby committed an offence punishable u/S 506 of I.P.C.?

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(v) What order?

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6. The learned Sessions Judge, after considering

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the oral and documentary evidence on record, has recorded a finding that, the prosecution has proved its case beyond all reasonable doubt that, on 12.03.2013 at about 8:00 pm, the accused intentionally insulted PWs.1, 4, 5 and 6, made criminal intimidation to them and assaulted on the abdomen of PW.1 with his leg and also voluntarily caused hurt to PWs.1 and 4. Thus, committed an offences under Sections 504, 323 and 316 of IPC. However, the learned Sessions Judge, acquitted the accused for an offence punishable under Section 506 of IPC.

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Aggrieved by the judgment of conviction and sentence passed by the learned Sessions Judge, the accused has preferred this appeal. So far as acquittal of the accused for an offence punishable under Section 506 of IPC, the State has not preferred any appeal.

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(iii) Arguments advanced by:

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Learned counsel for the appellant vehemently argued and submitted that the judgment of conviction and

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sentence passed by the learned Sessions Judge is contrary to law, evidence and probability of the case. The learned Sessions Judge has failed to analyse the entire evidence on record in a legal manner and all the witnesses are highly interested, as there is full of contradictions, not reliable and artificial. The approach of the learned Sessions Judge to the facts and circumstances of the case is wholly erroneous and the same is vitiated. The counsel further submits that the learned Sessions Judge ought to have acquitted the appellant on the ground that, the prosecution has failed to prove the case as charge sheeted for the offences punishable under Sections 506, 323 and 316 of IPC. Further, though facts of the case are entirely different and the evidence does not disclose the case of the prosecution, relying on the evidence of PWs.1, 4, 5 and 7 who are the interested witnesses, the learned Sessions Judge has wrongly convicted the appellant.

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The counsel further submits that the learned Sessions Judge without analyzing the evidence of the

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prosecution case and without looking in detail to the evidence of the Doctors-PWs.10 and 13 has convicted the accused for an offence under Section 316 of IPC which amounts to miscarriage of justice. He further submits that the incident occurred on 12.03.2013 and the complaint was lodged on 13.03.2013 at 7:45 pm by PW.1 and the Doctor examined PW.1 on 12.03.2013. Therefore, the very case lodged by PW.1 is doubtful. He further contended that, PW.8-Mallikarjuna, an eyewitness to the incident, turned hostile to the case of the prosecution. Further, the prosecution evidence itself reflects that they have not come with true version, as there is delay in filing the complaint. Further, PWs.2 and 3, who are the panch witnesses to Ex.P.2-spot panchanama, have not supported the case of the prosecution. The learned counsel further submits that the accused is a Hamali by profession. He is having 3 children who are studying 8th, 6th and 3rd standard respectively. He has to look after his two unmarried sisters and aged father and he is the only bread

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earning member in the family. Therefore, the counsel prayed to take a lenient view while imposing sentence.

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The learned Additional State Public Prosecutor for the respondent-State, sought to justify the impugned judgment of conviction and sentence and contended that, all the prosecution witnesses have supported the case of the prosecution and the learned Sessions Judge relied upon the testimony of PWs.1, 4, 5, 6 and 7 and based on the medical evidence and the oral testimony of the Doctors-PWs.10 and 13, has convicted the appellant for the offences punishable under Sections 323, 504 and 316 of IPC. The learned Additional SPP further submits that,

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the accused picked up quarrel with PWs.1 and 4 to 6 unnecessarily and assaulted PWs.1 and 4. Even considering, both, oral and documentary evidence on record, the learned Sessions Judge has rightly convicted the accused under Sections 323, 504 and 316 of IPC. Hence, this Court cannot interfere with the same under the

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provisions of Section 374(2) of Cr.P.C. Accordingly, the learned Additional SPP sought for dismissal of the appeal.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that arises for the Court's consideration in the present appeal is:

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Whether the accused/appellant has made out a case for interference with the impugned judgment and order of conviction sentencing him to undergo simple imprisonment for a period of 6 months for an offence under Section 323 of the Indian Penal Code, (hereinafter referred to as 'IPC', for brevity); to undergo simple imprisonment for a period of 1 year and to pay fine of Rs.1,000/-, in default, to undergo simple imprisonment for a period of 3 months for an offence under Section 504 of IPC and sentenced to undergo simple imprisonment for a period of 2 years and to pay fine of Rs.5,000/- in default, to undergo simple imprisonment for a period of 6 months for an offence under Section 316 of IPC, in the facts and circumstances of the case?

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This Court has given anxious consideration to the

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arguments advanced by the learned counsel for the parties

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and perused the entire material including the original records.

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(iv) The witnesses examined on behalf of the prosecution:

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In order to re-appreciate the oral and documentary evidence on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon.

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PW.1-Hanumanthamma is an injured eyewitness. She has stated in her evidence that she knows the accused, who is residing in the same lane where her brother PW.5Ganesha is residing. She further deposed that, about 9 months ago, one day at about 8:00pm, herself, her motherPW.4 and her brother-PW.5 were sitting in front of the house of her mother PW-4 Huligemma, at that time, the accused came there and abused her mother-PW-4 and intentionally insulted her and provoked her to commit breach of peace and the accused also assaulted on her abdomen with his leg. Hence, she got aborted. PW.1 has undergone crossexamination by the counsel for the accused. In the cross-

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examination, she has deposed that, the house of accused is situated after 4 house from her house. She has further admitted that there was dark at the spot and at the time of galata. She further admits that, herself, her brother, her mother were sitting on the cot which was laid by the side of the drainage. Her husband is the native of Shimogga and after marriage, she is residing with her husband at Shimogga. She further deposed that, she has no medical document to show that, at the time of quarrel, she was 3 months pregnant. Further, she did not observe how many persons had gathered at the time of quarrel.

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The counsel for the accused made a suggestion that, at the time of Municipal elections, the accused was supporting some person and the family of PW-1 were supporting some other person and since then, there is ill-will between them. But the said suggestion is clearly denied by PW.1. Rest of the suggestions were denied by PW.1.

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PW-2-Shekar, is an witness to the spot mahazar. He has deposed that on 14.03.2013, at 5:00pm, the Police conducted spot panchanama in front of house of PW-4. In

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the cross-examination, he has admitted that he does not know the contents of Ex.P-2 mahazar and he signed the said mahazar in the police station.

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PW.3-Hariprasad is another witness to the

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spotmahazar-Ex.P.2. In his evidence, he has deposed that, on 14.03.2013, the Police have conducted spot panchanama near the house of PW-4 as per Ex.P-2. In the crossexamination, PW.3 has admitted that he does not know to read and write in Kannada language but he reads Telugu language. He does not know the contents of Ex.P.2 mahazar.

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PW.4-Huligemma is another injured witness. In her evidence, she has evidence she has stated that about 9 months ago, one day at about 8:00 pm, herself, her daughter-PW.1 and her son Ganesha-PW.5 and his wife Rekha-(PW.7) were sitting on the cot which was laid on the drainage, the accused came there and abused her in filthy language, intentionally insulted her to provoke her breach of peace, hence, her son Ganesha-PW.5 stated that, they were sitting in the open air, in this regard the accused assaulted

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him with hands and also kicked PW-4 by his leg and assaulted PW.5-Ganesha with his hand, at that time, PW.7Rekha cried. Again the accused kicked PW-1 on her ribs and stomach by his leg, at that time, PW.1-Hanumanthamma was 3 months pregnant. Hence, her son-in-law-ManjunathaPW.6 came there and requested the accused not to kick his wife Hanumanthamma, as she was 3 months pregnant, again the accused pushed Manjunatha-PW.6. At the same time, PW.2-Shekar and PW.8- Mallikarjun came there and treated PW.1 and later they went to the police station and later they took PW.1 to the hospital for treatment in an autorickshaw. On the next day, X-ray was taken on her and her daughter and also PW-7. PW-4 has undergone crossexamination by the counsel for the accused. In the crossexamination, she had admitted that, she does not know the contents of the statement recorded by the police. At the time of quarrel, about 20-30 persons had gathered. She further admits that they have lodged the complaint on the date of quarrel itself and rest of the suggestions were denied by PW.4.

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PW.5-Ganesha is the younger brother of PW-1Hanumanthamma, who is the daughter of PW.4-Huligemma. He has deposed in the line with PWs.1 and 4 and corroborated their oral testimony. PW.5 has undergone cross-examination by the counsel for the accused. In the cross-examination, he has categorically admitted that there is no other road to go to the house of the accused except the road which is there in front of their house. He further admits that house of Harijana Hanumanthappa is situated opposite to his house and at the time of alleged incident, drainage workers had laid drainage mud on the road in front of his house and at that time, only two wheeler could pass there. He further admits that, they have constructed a hut in the Government Janata site and at the time of quarrel, there was no electricity supply and it was dark. He further admits that the distance from his house and to the house of PW.1Hanumanthamma is about 1/2 a kilometer. He further admits that about 100 persons had gathered at the time of the quarrel at the spot. He admits that, he does not know who abused to whom and in which language. He further

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admits that there is ill-will between himself and accused regarding Ganesha festival.

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PW.6-Manjunatha, husband of PW.1, son-in-law of PW.4 and brother-in-law of PW.5, deposed in the line with the evidence of PWs.1, 4 and 5 and corroborated the oral testimony of the aforesaid witnesses. In the crossexamination, nothing has been elicited from his mouth to discredit his testimony.

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PW.7 -Rekha, is an eyewitness to the incident, sister-

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in-law of PW.1, daughter-in-law of PW-4 and wife of PW.5. She has also deposed in line with PWs.1, 4, 5 and 6 and corroborates their testimony.

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PW.8-Mallikarjun is an eyewitnesses to the incident.

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He has stated that, on 13.03.2013 at about 8:00 pm, he heard the sound of galata near the house of PW.4Huligemma. Hence, he rushed to the spot, the accused abused PWs.1 and PW-4 and PW-7 in filthy language. He has further deposed that he does not know anything more. At this juncture, the learned Public Prosecutor treated him as

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hostile and cross-examined him. In the cross-examination,

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he has categorically admitted that the accused came there and abused Huligemma in filthy language and threatened PWs.1, 4, 5 and 7 with dire consequences. He further admits that, at the time of said quarrel, PW.1Hanumanthamma was pregnant and during assault, she got aborted. He has further deposed that, he has not given statement before the police as per Ex.P-5. In the crossexamination by the learned counsel for the accused, he has denied all the suggestions made to him.

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PW.9-Chandraiah is the Police Constable, who carried FIR to the Court and reported to the SHO accordingly.

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PW.10-Dr. Manjunath, is the Medical Officer, Kampli,. In his evidence he has stated that on 12.03.2013 at about 9:25 pm, PW.1-Hanumanthamma was brought to the hospital by her relatives with the history of assault. Hence, he examined her and found the following injuries:

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i. Blunt injuries to abdomen.

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ii. There was a bleeding in vagina.

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At that time, she was pregnant and was aborted. Hence, he sent PW-1 to Kalgudi clinic, Kampli for ultrasound scanning of abdomen. On 13.03.2013, he received scanning report from said clinic and came to know that there was complete abortion, quire ectopic-pregnancy. Hence, he issued his report as per Ex.P.5 and he is of the opinion that the injuries caused to PW-1 are grievous in nature. According to PW.10, abortion may be caused due to blunt force on the abdomen. PW.10 further deposed that, on the same day, at 9:20pm he also examined PW.4-Huligemma and found blunt injury to the chest and blunt injuries over left loin region and the said injuries were simple in nature and the can be caused, if, a person assaults with hands and kicks by leg and also assaults with blunt weapons. In this regard, he issued wound certificate of PW.4 as per Ex.P-6. In the crossexamination, PW-10 has admitted that he has not mentioned the name of the assailant in the wound certificates. He admits that, due to hard work, there are chances of abortion. He has further stated that, he made urine test to ascertain whether PW.1-Hanumanthamma was pregnant or not and

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the said urine test was positive i.e., she was pregnant and rest of the suggestions were denied by him.

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PW.11-V.Laxman, ASI, in his evidence, he has stated that, on 13.03.2013 at 7:45pm, he was in the Police Station, at that time, PW.1-Hanumanthamma came to the police station and lodge a compliant as per Ex.P-1. Hence, he registered the same in Crime No.44/2013 for the offences punishable under Sections 504, 323, 354, 325 and 506 of IPC and sent FIR and the complaint to the Court. He has further deposed that on 14.03.2013, he sent a requisition to the Court for incorporation of Section 316 of IPC instead of Section 325 of IPC since PW.1 got aborted. On the same day, he visited the scene of occurrence, drew spot sketch as per Ex.P-7, conducted spot panchanama as per Ex.P-2 in the presence of PWs.2 and 3. On the same day, his sub-staff produced the accused before him and hence he arrested him and on the same day, he produced the accused before the Court under remand application and on the same day, handed over the further investigation to PW.12-Anand, PSI.

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In the cross-examination, nothing has been elicited from the mouth of PW-11 to discredit his testimony.

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PW.12-Anand, PSI, in his evidence, he has stated that on 15.03.2013, he received further investigation in this case from PW.11 and perused the investigation so far done by him, he recorded the statements of PW.6-Manjunath, PW.4Huligemma, PW.5-Ganesha and PW.7-Rekha ad PW.8Mallikarjun. He has further deposed that on 04.06.2013, he received wound certificate of PW.1-Hanumanthamma. Hence, on 05.06.2013, he got the clarification from Dr.Manjunath about the injuries caused to her. Hence, he has given the clarification, as, abortion cannot be ruled out due to blunt injuries. He further deposed that on 05.06.2013, he received wound certificates of PW.4Huligemma from the Government hospital, Kampli, as per Ex.P-6 and on the same day, he submitted charge sheet to the Court. In the cross-examination, nothing is elicited from the mouth of PW-12 to discredit his evidence.

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PW.13-Dr. C.S. Kalgudi is a Private Medical practitioner

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at Kampli and he is doing general practice and Ultra Sound

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scanning. In his evidence, he has deposed that on 13.03.2013, Dr. Manjunath, Government hospital, Kampli, referred PW.1-Hanumanthamma for ultra sound scanning to rule out pregnancy loss. Hence, on the same day, he did ultra sound scanning and on examination, he did not find anything in the uterus and it was empty; it was completely aborted. Hence, he recorded the said finding in his ledger book Ex.P-9. PW.13 has undergone cross-examination by the counsel for the accused and he admitted that he used to mention the patients name and address and the name of referring doctor in the ledger book maintained by him. He has stated that he has given correct report to the patient and rest of the suggestions are denied by him.

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Based on the aforesaid evidence, the learned Sessions Judge has proceeded to convict the accused for the offences punishable under Sections 504, 323 and 316 of IPC.

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(vi) Consideration:

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Having re-appreciated the entire oral and documentary evidence on record, it is clear that the accused

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quarreled with PWs.1, 4, 5, 6 and 7 on 13.03.2013 at 8:00 pm. PW.1-an injured eye witnesses in her evidence has categorically stated that the accused abused her mother and her brother in filthy language, assaulted her mother PW-4 and also assaulted her on her abdomen and hence, abortion took place. This part of the evidence has been corroborated by PWs.4 to 7 and 10 to 13.

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So far as injury sustained by PW.1 and PW.4 is concerned, PWs.10 and 13 have categorically stated that PW.1 got aborted due to force with a blunt object and PW.4 sustained simple injury.

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Learned counsel for the appellant has taken a contention that PW.1 and 4 to 7 are close relatives and they are interested witnesses and their oral testimony cannot be believed.

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Learned Additional State Public Prosecutor vehemently argued and contended that, the close relatives have stated in a corroboratory manner, their evidence is clear, consistent and corroborative in nature. Merely because they are close relatives, it is not sufficient to discredit a

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witness unless motive to spare the real culprit and falsely implicate an innocent person is shown. Admittedly, in the instant case, according to the defence, the motive to lodge a false complaint was, there was ill-will between the family of the accused and PW.1 in respect of election, as accused was supporting one party and the family of PW-1 was supporting one party. The counsel for the accused suggests PWs.1 to 4 with regard to the motive in respect of "election" but the counsel for the accused suggested to PW.5-Ganesha that, "there was enmity between the accused and the family of PW.1 with respect to Ganesha festival." Therefore, the contention of the learned counsel for the accused as to the motive aspect is concerned, there is no consistency.

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Further, merely, because PWs.1 and 4 to 7 are family

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members and close relatives, their evidence cannot be discredited since their evidence is in clear terms, consistent and corroborates with each other. Hence, a close relation would make an endeavor to see that actual culprits are punished and closest relationship does not affect the credibility of evidence of a witness. Foundation has to be

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laid if a plea of false implication is raised. Whereas in the instant case, foundation is not laid regarding false implication of accused in this case.

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Learned Additional SPP vehemently argued and submitted that in the instant case, PWs.1 and 4 are injured witnesses and their evidence must be appreciated. Admittedly, the testimony of injured witnesses is accorded

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a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate some one. Convincing evidence is required to discredit an injured witness. In the instant case, PWs.1 and 4 have deposed in a convincing manner. Nothing has been elicited to discredit their testimony.

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Learned counsel for the appellant has vehemently argued and contended that, in the instant case, the eyewitness to the incident PW.8 has turned hostile to the case of the prosecution. Therefore, the case of the prosecution cannot be believed.

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On perusal of the evidence of PW.8, it appears

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that, PW.8 has clearly deposed about the quarrel took place between the accused and the family of PW.1 on 13.03.2013 at 8:00 pm and he saw the quarrel. At that time, accused was abusing PW.4, PW.1 and PW.7 in filthy language and apart from that, he does not know any more. But in the cross-examination, he admitted to the effect that accused

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came there and abused PW.4 in filthy language and he threatened the life of PWs.1, 4, 5 and 7 and he also admitted that PW.1-Hanumanthamma was aborted and rest of the suggestions were denied.

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PW.8 has deposed that he has not given any statement before the police as per Ex.P-3, therefore, in this regard, learned Additional SPP vehemently argued and contended

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that so far as to attract the offence under Section 323, 504 and 316 of Cr.P.C., it is necessary for the Court to consider his testimony and it could still be believed in regard to a part of his evidence. If the evidence is not completely shaken,

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the Court may, after considering his evidence as a whole with due care and caution, accept in the light of other

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evidence on record, that part of his evidence, which is found creditworthy and act upon it.

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Admittedly, the testimony of partly hostile witness cannot be rejected outright. The testimony of such witness, if corroborated with other injured witnesses could be considered and said part of witness evidence found believable, could be used for the purpose of corroborating the evidence of other witnesses.

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The counsel for the appellant has taken a contention that the Investigating Officer has not cited any independent witness in this case except PW.8. Admittedly, in a grave incident, the neighbours who may be independent witnesses may not like to come forward and depose against the assailants. Whereas in the instant case, the accused and the family of PW.1 are neighbours. Therefore, the accused cannot take an advantage of non-examination of said independent witness, particularly, if defence did not question the Investigating Officer on this aspect.

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In the light of the above evidence and

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appreciation of evidence on record, let me examine the provisions of Sections 316, 323 and 504 of IPC.

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" Section 316- Causing death of quick unborn child by act amounting to culpable homicide .— Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Section 323 - Punishment for voluntarily causing

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hurt .—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

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Section 504. Intentional insult with intent to

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provoke breach of the peace.— Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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From perusal of Section 504 of IPC, the

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prosecution has to show that the accused has intentionally insulted PWs.1, 4 and 5 so as to give them provocation, intending or knowing it that such provocation will cause them to break the public peace or to commit any other offence. Therefore, mere act of insulting a person would not satisfy the ingredients of Section 504 of IPC. The act of insulting should be of such a nature, that should give provocation to a person insulted to break the public peace or to commit any other offence. The above observation was made by Hon'ble Apex Court in the case of Fiona Shrikhande v. State of Maharashtra reported in 2014 AIR SC 2013 wherein at paragraphs 13 and 14 is held as under:

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'' 13. Section 504, IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a per- son to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any

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other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504, IPC.

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14. We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504, IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The back- ground facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504, IPC.

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From the above analysis of law and the facts and circumstances of the present case, the accused has

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intentionally insulted and provoked PWs.1 and 4 to 7 to break the public peace and assaulted PWs.1 and 4. On perusal of evidence of PWs.1 and 4 to 7, it appears that, they have in categorical terms deposed about the commission of offence by the accused with respect to Section 323, 504 and 316 of IPC. On the other hand, nothing is elicited in the cross-examination of PWs.1 and 4 to 7 to disbelieve their evidence. Thus, their evidence corroborate with each other. Hence, the prosecution has proved its case beyond all reasonable doubt that accused assaulted PWs.1 and 4, the accused kicked on the abdomen of PW.1 by leg, who was pregnant by 3 months and caused abortion to her. Therefore, by that act, he caused the death of an unborn child of PW.1.

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The learned Sessions Judge has passed the well reasoned order convicting the accused for the offences punishable under Sections 504, 323 and 316 of IPC and the same requires to be confirmed.

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So far as imposition of sentence is concerned, the counsel for the appellant has taken a contention that the

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appellant has already undergone 5 months 27 days of imprisonment. The appellant has aged mother, wife and children and appellant is the only bread earner of family. Further, the accused committed an offence under the influence of alcohol. Hence, he prays the Court to set off the period of imprisonment already undergone under Section 428 of Cr.P.C.

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Learned Additional SPP has vehemently argued and contended that the accused has committed a grave offence against the pregnant woman, hence, no leniency should be extended in favour of the accused. He further contended that, the trial Court has not granted compensation in favour of PW-1 under Section 357 of Cr.P.C. and he requested the Court to direct the District Legal Services Authority for grant of compensation to PW.1.

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Learned counsel for the accused submits that the appellant is a first time offender, hence he prayed to invoke Sections 3 and 4 of the Probation of Offenders Act, 1958, while imposing sentence.

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In the instant case, the alleged incident took

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place in front of the house of PW.1 in a spur of moment as the family of PW.1 did not allow the accused to pass through their house, the accused abused PWs.1 and 4 and assaulted them under the influence of alcohol. Admittedly, the accused is doing hamali work and his family is depending on his avocation and he is the only bread earner of the family. Further, the accused and the family of PW.1 are neighbours.

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On perusal of the offence under Section 316 of IPC, it is punishable with imprisonment for a term which may extend to ten years and shall also be liable to fine.

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Considering the circumstances under which the offences are committed, his status in the society, his dependants, sentence imposed on the accused for an offence punishable under Section 316 of IPC and sentenced for 2 years requires to be modified. Further, by imposing fine of Rs.25,000/-, which shall be payable to PW.1, would meet the ends of justice. To that effect, the sentence imposed by the learned Sessions Judge requires modification.

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Accordingly, the following order is passed.

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The appeal is partly allowed. The judgment of conviction passed by the learned III Additional District and Sessions Judge, Bellary, sitting at Hospet, for the offences punishable under Sections 316, 323 and 504 is confirmed. The sentence imposed under Section 316 of IPC is modified by imposing fine of Rs.25,000/-; the sentence imposed for offence punishable under Section 316 of IPC is reduced to one year from two years imprisonment and the appellant shall undergo simple imprisonment for a period of one year.

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Soon after deposit of Rs.25,000/- the learned Sessions Judge is directed to pay the said compensation to PW.1Smt.Hanumanthamma.

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The District Legal Services Authority, Bellary, is directed to consider the application to be filed by PW.1 for compensation, as per Section 357 of Cr.P.C.

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The registry is directed to send a copy of this order along with the trial Court records to the court below forthwith.

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Sd/JUDGE

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Kmv

Maratti Ravi S/O Shankarappa v. the State of Karnataka by

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Maratti Ravi S/O Shankarappa v. the State of Karnataka by

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