Partly allowed

Krishna Ganapu Naik v. State of Karnataka

Karnataka HC1 Jun 2023CRL.RP/100154/2021

Case brief

AI extract

What is this about?

The High Court held that while the lower courts incorrectly classified the offence as Section 325 IPC, the facts supported conviction under Section 324 IPC. The prosecution failed to prove Section 504 IPC due to lack of intent to provoke breach of peace. The petition was partly allowed, convicting the accused of Section 324 IPC and awarding compensation.

What did the court decide?

Accused convicted under Section 324 IPC; sentenced to fine of Rs. 3,000/- each with 2 months imprisonment in default; Rs. 11,000/- awarded as compensation to complainant.

Krishna Ganapu Naik Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2023)

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1 - CRL.RP No. 100154 of 2021

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI

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CRL. R.P. NO. 100154 OF 2021 (397-)

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BETWEEN:

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KRISHNA GANAPU NAIK

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AGED ABOUT 54 YEARS, OCC: AGRI RESIDING AT YANA, ATTIBETTU, KUMTA TALUK,

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UTTARA KANNADA DISTRICT-581343.

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GANAPATI KRISHNA NAIK AGED ABOUT 29 YEARS, OCC: AGRI RESIDING AT YANA, ATTIBETTU, KUMTA TALUK,

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UTTARA KANNADA DISTRICT-581343.

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Digitally
signed by J
MAMATHA
J
MAMATHA Date:
2023.06.06
12:14:56 -
0700

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NAGARAJ KRISHNA NAIK AGED ABOUT 28 YEARS, OCC: AGRI RESIDING AT YANA, ATTIBETTU, KUMTA TALUK,

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UTTARA KANNADA DISTRICT-581343.

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RAGHAVENDRA KRISHNA NAIK AGED ABOUT 25 YEARS, OCC: AGRI RESIDING AT YANA, ATTIBETTU, KUMTA TALUK,

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UTTARA KANNADA DISTRICT-581343.

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…PETITIONERS

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(BY SRI. ANKIT DESAI, ADV. FOR SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV.)

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AND:

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STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, BY ITS UTTARA KANNADA-581343, (KUMTA POLICE STATION)

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…RESPONDENT

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(BY SRI. RAMESH CHIGARI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C., SEEKING TO SET ASIDE THE ORDER DATED 11.02.2021 DISMISSING THE APPEAL PREFERRED BY THE PETITIONERS HEREIN IN CRL. A.NO.102/2006 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, UTTAR KANNADA AT KARWAR CONFIRMING THE JUDGMENT OF CONVICTION DATED 16/05/2006 IN C.C.NO.293/2005 PASSED BY THE JMFC, KUMTA CONVICTING THE ACCUSED NO.1 TO 4 / PETITIONERS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504, 506, 326 R/W 34 OF IPC, 1860.

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

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ORDER

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Revision petitioners-accused Nos.1 to 4 feeling aggrieved by judgment of first Appellate Court on the file of Prl. District and Sessions Judge, Uttar Kannada, Karwar in Crl.A.No.102/2006, dated 11.2.2021, preferred this revision petition.

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3 - CRL.RP No. 100154 of 2021

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Parties to the petition are referred with their ranks as assigned in the trial Court for the sake of convenience.

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The factual matrix leading to the case of

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prosecution can be stated in nutshell to the effect that on 19.9.2004 at about 4.45 p.m. accused persons formed themselves into unlawful assembly came to the house of complainant and they abused complainant in filthy language. When complainant questioned about removal of coconuts which were fallen in the land encroached by complainant, accused No.3 assaulted complainant on his right fore arm and other accused assaulted complainant with hands and stones. As a result, complainant sustained grievous injuries. On these allegations made in complaint, case was registered in Crime No.214/2004 of Kumata police station for the offences punishable under Sections 326, 504, 506 of IPC. The investigating officer on completion of investigation filed charge sheet.

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In response to summons, accused Nos. 1 to 4 appeared through learned counsel. The trial Court on being prima facie satisfied, framed charges against all the accused for

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aforesaid offences, they pleaded not guilty and claimed to be tried. The prosecution to prove the charges leveled against the accused, relied on the evidence of PWs.1 to 11 and documents at Ex.P.1 to 5, so also got identified M.O.1. and Ex.D.1 came to be marked through evidence of PW.2.

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On closure of prosecution evidence, statement of accused under Section 313 of Cr.P.C. came to be recorded. Accused denied all incriminating material evidence appearing against them and claimed that false case is filed. The trial Court after appreciation of evidence, convicted all accused for the aforesaid offences and imposed sentence as per order of sentence.

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Accused Nos. 1 to 4 challenged the said judgment of conviction and order of sentence before first Appellate Court on the file of Prl. District and Sessions Judge, Uttar Kannada, Karwar in Crl.A.No.102/2006. The first Appellate Court on reappreciation of evidence by judgment dated 11.02.2021 dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the trial Court.

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Revision petitioners-accused, challenged concurrent

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findings of both Courts below contending that both Courts below have not properly appreciated the evidence on record. The civil dispute between the parties has been converted into criminal case. The alleged injury suffered by complaint as per wound certificate-Ex.P.4 and evidence of PW.11-doctor is insufficient to attract penal action in terms of Section 326 of IPC. The finding recorded by both Courts below in holding accused guilty for the aforesaid offences cannot be legally sustained. Therefore, prayed for allowing the revision petition and to set aside judgment of conviction and order of sentence passed by both Courts below. Consequently, to acquit accused Nos. 1 to 4 from the charges leveled against them.

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Heard the arguments of both sides.

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On careful perusal of oral and documentary evidence relied by the prosecution, it would go to show that complainant and accused No.1 jointly encroached portion of forest land about 20 years back and they were cultivating the land separately. Accused No.1 had given up cultivation of land to complainant by accepting Rs.40,000/- as fixed by elders. On

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18.09.2004, accused No.2 picked up two coconuts from the land of complainant and the same was objected. On 19.09.2004 at 4.45 p.m., all the accused formed themselves into unlawful assembly came to the house of complainant and started abusing the complainant in filthy language. Accused No.3 assaulted complainant on his right forearm and other accused assaulted the complainant with hands and stone, as a result complainant sustained grievous injury. The prosecution to prove the said allegations, mainly relied on the evidence of complainant-PW.1 and that of his wife PW.2, so also evidence of PWs.5 to 8. The said evidence is sought to be corroborated by evidence of PW.11- doctor and wound certificate-Ex.P.4 with that of investigating officers-PWs.9 and 10.

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On careful reading of oral evidence of PWs.1 and 2, it would go to show that their evidence is consistent with regard to incident that took place on 19.09.2004. The complainant questioned the accused with regard to taking coconuts from his land and that led to incident in question. PW.1 further deposed to the effect that accused No.3 caught hold his shirt and assaulted by means of club. Accused No.2 by means of stone assaulted over his waist and rest of the accused

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caught hold complainant and kicked on him. Due to which, he sustained injuries. The said evidence is also certified by the evidence of PWs-5 to 8 who are the neighbourers. The evidence of all these witnesses is consistent with regard to the injuries suffered by complainant due to assault of accused No.3 by means of club and accused No.2 by means of stone.

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The medical evidence relied by prosecution of Dr.Prashant Kamalakar Manakikar PW-11 would go to show that he has examined the complainant at 7.15 p.m. and found injuries noted in wound certificate Ex.P.4. The right forearm is found with fracture and injury No.1 is opined to be grievous in nature and rest of the injuries are simple in nature. The oral evidence of PWs-1 and 5 to 8 with regard to the injuries suffered by complainant in the incident that took place on 19.09.2004 is supported by the medical evidence of PW-11 and the wound certificate Ex.P.4. Looking to the time gap between the time of incident and the date and time of complainant being examined by PW-11 in the Government Hospital, then it would go to show that complainant suffered injury in the incident itself as alleged in the complaint Ex.P.1. The defence has not brought any material evidence on record during the cross-

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examination of the above referred witnesses that there was any other occasion for the complainant to suffer injuries as noted in the wound certificate Ex.P.4 in between the time of incident and the time of his examination by PW-11.

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The question is as to whether the injury No.1 recorded in the wound certificate Ex.P.4 is grievous in nature which can attract penal action under Section 326 of IPC. The trial Court as well as the first Appellate Court recorded finding that non-examination of doctor who took X-ray and non production of X-ray report, criminal liability under Section 225 or 226 could be said to be not established and as such, the penal action in terms of Section 326 IPC is not attracted and held that the offence falls within the ambit of Section 325 of IPC. Reference is made by the trial Court to the judgment of Hon’ble Apex Court in P. JOHNSON AND OTHERS VS. STATE OF KERALA [(1998) CRL.LJ 3651].

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Indisputably, the prosecution apart from examining PW-1 - doctor who examined the complainant and issued wound certificate Ex.P.4 has not examined the radiologist who has given opinion on the basis of X-ray that injury No.1 caused

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9 - CRL.RP No. 100154 of 2021

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to complainant as per wound certificate Ex.P.4 is grievous in nature. Complainant was referred to Orthopedic Surgeon. The wound certificate Ex.P.4 would go to show that on the basis of Orthopedic report, injury No.1 is opined to be grievous in nature. The prosecution has not produced the report of Orthopedic Surgeon nor produced the X-ray or radiologist report to substantiate the fact that complainant suffered grievous injuries as noted at Sl.No.1 in the wound certificate Ex.P.4. Therefore, the trial Court as well as the first Appellate Court were justified in holding that offence under Section 326 of IPC is not proved.

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The Courts below have held that the offence falls under Section 325 of IPC. On careful perusal of the said proviso, it would go to show that the legal requirement is that "voluntarily causing grievous hurt" shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. When the nature of grievous injury has not been established out of the evidence placed on record as rightly held by trial Court as well as first Appellate Court then the question of attracting the penal action in terms of Section 325 also does not arise. However,

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voluntarily causing hurt by dangerous weapons or means will attract penal action in terms of Section 324 IPC. Therefore, in my opinion, both the Courts below have committed error in holding that prosecution has proved the offence under Section 325 IPC. On the other hand, the case will fall within the ambit of Section 324 IPC. The above evidence on record would be sufficient to attract penal action in terms of Section 324 IPC.

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The evidence of PWs-1, 2 and 5 to 8 is in general terms with regard to accused said to have abused complainant in filthy language and administered threat to take away his life. The said evidence is not consistent enough to draw any inference that the said abusive words were intended to insult with an intention to provoke to commit breach of public peace. The dispute between complainant and accused is essentially arising out of a property dispute which is civil in nature. The mere reference of some abusive words in the complaint and uncertified evidence of the witnesses cannot be itself sufficient to attract penal action in terms of Section 504 IPC.

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In this context of the matter, it is useful to refer judgment of Hon’ble Apex Court in Fiona Shrikhande V/s.

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State of Maharashtra , reported in AIR 2014 SC 957 , wherein it has been observed and held that:

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" Section 504 of IPC comprises of the following ingredients viz., a) Intentional insult, b) the insult must be such as to give provocation to the persons 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 person 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 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 of IPC."

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In the present case also, the dispute between the

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complainant and accused occurred on account of property dispute between them and there was no any intention which would be sufficient to provoke the complainant to commit breach of public peace. The evidence of prosecution witnesses is not in conformity with the principles enunciated in the aforesaid decision of Hon'ble Apex Court. It is alleged that accused have addressed the complainant that within 24 hours they will cause to disappear complainant. If any such expression was intended to be executed then it must be supported by required evidence which would be sufficient enough to draw any inference from the proved facts. However, in the present case there is no any such material evidence placed on record by the prosecution. The evidence of prosecution witnesses is also not consistent in that regard. Therefore, both the Courts below were not justified in convicting the accused for the offence under Sections 504 and 506 of IPC.

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Now, coming to the imposition of sentence, the trial Court has sentenced accused Nos.1 to 4 for the offence

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under Section 325 read with 34 IPC to undergo simple imprisonment for three months and pay a fine of Rs.500/-. In view of the reasons recorded above, it has been held that the offence under Section 324 IPC is attracted. The offence under Section 324 IPC is punishable with imprisonment of either discretion for a term which may extend to 3 years or with fine or with both. The discretion is left with the Court looking to the facts and circumstances of the case to impose any of the aforesaid offence.

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In the present case, it is not in dispute that complainant and accused No.1 were jointly cultivating the encroached forest land. Accused No.1 thereafter gave up his land in favour of complainant for Rs.40,000/- fixed by the elders. Now, it appears that accused No.1 is demanding back the said land and over the said issue, there is a dispute between complainant and accused. Therefore, looking to the facts and circumstances of the present case and the evidence on record, in my opinion, if each of the accused is sentenced

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to pay fine of Rs.3,000/- and in default to undergo simple imprisonment for a period of 2 months is ordered will meet

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the ends of justice. Consequently, proceed to pass the following:

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ORDER

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Revision Petition filed by accused Nos.1 to 4 is hereby partly allowed.

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Accused Nos.1 to 4 are convicted for the offence punishable under Section 324 IPC and sentenced to pay fine of Rs.3,000/- each. In default, each of them shall undergo imprisonment for a period of two months.

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In exercise of powers under Section 357 of Cr.P.C., out of the fine amount, Rs.11,000/- is ordered to be paid to the injured-complainant PW-1 as compensation and Rs.1,000/- is defrayed as expenses incurred by the prosecution.

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The registry is directed to transmit the records with the copy of this judgment to trial Court.

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(Sd/-) JUDGE

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VB-paragraphs 1 to 10, JM-paragraphs 11 till end List No.: 1 Sl No.: 17

Krishna Ganapu Naik v. State of Karnataka

Case brief

What is this about?

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Krishna Ganapu Naik v. State of Karnataka

Case brief

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