Raja @ J.C. Krishnaraju Vs State by Harohalli Police

RAJA @ J.C. KRISHNARAJU S/O CHANNAPPA AGED ABOUT 40 YEARS R/A KADUJAKKASANDRA VILLAGE HAROHALLI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT - 562 112 (NOW IN JUDICIAL CUSTODY SERVICE SENTENCE)

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…APPELLANT

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(BY SRI. A.V. RAMAKRISHNA, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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STATE BY HAROHALLI POLICE REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATKA HIGH COURT BUILDING BANGALORE - 560 001 (BY SRI. CHANNAPPA ERAPPA, HCGP)

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…RESPONDENT

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED: 30.09.13/08.10.13 PASSED BY THE I ADDITIONAL DISTRICT AND S.J.,/SPECIAL JUDGE, RAMANAGARA, IN SPL.C.C.NO.306/2007 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 341 AND 307 OF IPC AND ETC.,

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THIS APPEAL IS COMING ON FOR FURTHER HEARING , THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri A.V.Ramakrishna, learned counsel for the

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appellant and Sri Channappa Erappa, learned HCGP for the respondent-State.

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Appellant is the accused, who suffered an order of conviction in Spl.C.C.No.306/2007 for the offences punishable under Sections 307 and 341 of IPC and ordered to undergo simple imprisonment for a period of five years and to pay Rs.1,000/- fine for the offence punishable under Section 307 of

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IPC. For the offence punishable under Section 341 of IPC, he has been sentenced to pay fine of Rs.500/-.

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Facts in the nutshell for disposal of the appeal are

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as under:

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A complaint came to be lodged with Harohalli Police Station for the offences punishable under Sections 307, 341, 506 read with section 34 of IPC and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of

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Atrocities) Act, 1989, (for short 'SC/ST (PoA) Act').

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The complaint averments reveal that on 26.09.2007 at about 8:00 A.M., when the complainant was proceeding on the public road to reach Harohalli, pursuant to previous enmity, the accused picked up a quarrel and abused him in filthy language taking out his caste name with an intention to degrade him in public view and also gave him a life threat.

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Based on the said complaint, the Police registered the case and investigated the matter and filed chargesheet for the aforesaid offences.

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Presence of the accused was secured by the learned Special Judge and cognizance was taken.

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On due compliance of Section 207 of Cr.P.C., charges were framed for the aforesaid offences by the learned Special Judge. Accused pleaded not guilty. Therefore, trial was held.

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In order to prove the guilt of the accused, prosecution proceeded to examine 10 witnesses as P.W.1 to P.W.10 comprising of complainant, mahazar witnesses, circumstantial witnesses, Doctor, who issued the wound certificate and the Investigating Officer.

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The Prosecution proceeded to place on record eight

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documentary evidence on record as Exhibits P.1 to P.8 comprising of complaint, spot mahazar, wound certificate, opinion of the Doctor with regard to the weapon used in the incident and FIR.

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During the course of cross-examination of P.Ws.3, 4 and 5, contradictions were elicited with regard to Exhibits D.1 to D.3. The weapon used in the incident is marked as M.O.1 on behalf of the prosecution.

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On completion of recording evidence, accused statement as is contemplated under Section 313 of Cr.P.C., was recorded by the learned Special Judge. Accused has denied all incriminating materials found against him in the prosecution case but he did not choose to place his version on record by furnishing any written submission as is contemplated under Section 313(4) of Cr.P.C., nor placed any defence evidence on record.

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Thereafter, learned Special Judge heard the

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arguments of the parties in detail and acquitted the accused for

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the offence under Section 3(1)(x) of the SC/ST (PoA) Act but

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convicted the appellant and sentenced as referred to supra.

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The State or the de-facto complainant did not file

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any appeal challenging the acquittal of the accused for the offence under Section 3(1)(x) of the SC/ST (PoA) Act and therefore, it has attained finality.

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Accused has filed the present appeal challenging the validity of the impugned judgment wherein accused has been convicted for the offences punishable under Sections 307 and 341 of IPC.

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Sri A.V.Ramakrishna, learned counsel for the appellant, reiterating the grounds urged in the appeal, contended that absolutely, there is no material on record, which would be sufficient enough to maintain the conviction of the appellant for the offence under Section 307 of the IPC and the appeal needs to be allowed.

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He would further contend that at the most, the material on record may indicate that there was altercation on the date of incident inasmuch as it is the complainant, who has come near the house of the appellant and picked up the

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quarrel. Therefore, the prosecution suppressed the genesis of the crime, which shows that there was no intention on the part of the appellant either to pick up the quarrel with the complainant or to assault the complainant voluntarily.

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Taking note of the fact that the injuries have been caused and the weapon has been seized, which contains no blood stains and the weapon was not sent to the FSL for examination, this Court may scaled down the offences under Section 307 to Section 324 and the custody period already undergone by the appellant may be treated as period of imprisonment and allow the appeal to that extent.

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Per contra, Sri Channappa Erappa, learned HCGP for the respondent-State supports the impugned judgment. He would further contend that the wound certificate marked as Ex.P.5 and the weapon that has been seized by the Police, which is marked as M.O.1 having been sent to the Doctor for opinion, which has been furnished at Ex.P.6 would conclude that, it is the appellant, who has voluntarily assaulted the complainant with M.O.1 resulting in several injuries of which, injuries found on the body of the complainant would be that of grievous in nature.

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As per the X-ray report, there is a fracture of nasal

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bone and therefore, all ingredients to attract offence under Section 307 of IPC has been established by the prosecution by placing cogent and convincing evidence on record and thus, sought for dismissal of the appeal.

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He further contended that the submission made

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on behalf of the appellant that the offence needs to be scaled down from Section 307 of IPC to Section 324 of IPC, has no merit whatsoever, in view of the specific oral and documentary evidence placed on record and sought for dismissal of the appeal in toto .

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Having heard the parties in detail, this Court perused the material on record meticulously, following points would arise for consideration:

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(i) Whether material on record would be sufficient enough to maintain the conviction of the appellant under Sections 307 and 341 of IPC;

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(ii) Whether the impugned judgment is suffering from legal infirmity or perversity or thus, call for interference?

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(iii) Whether the sentence needs modification?

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(iv) What order?

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REGARDING POINTS No.1 and 2: in the case on

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hand, there was a transaction between the complainant and the accused earlier and in that regard, there was a complaint as well. As such ill-will developed between the complainant and the accused. It is the specific case of the complainant that pursuant to said ill-will, on 26.09.2007 at about 8:00 A.M., when he was proceeding on the public road, the accused has picked up a quarrel voluntarily with the complainant and abused him in filthy language by taking out his caste name and assaulted him with M.O.1. The quarrel was pacified by the other villagers and thereafter, compliant came to be lodged by the complainant in the evening.

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Police, after investigating the matter, filed the charge sheet for the offences punishable under Sections 307, 341 read with Section 3(1)(x) of the SC/ST (PoA) Act. However, learned Trial Judge himself did not notice any ingredients in the material evidence so as to convict the accused for the offence punishable under Section 3(1)(x) of the SC/ST (PoA) Act. Therefore, the Trial Judge acquitted the

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appellant for said charge. The State and the victim have not filed any appeal against the acquittal of the appellant for the aforesaid charge, it has become final.

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Admittedly, there are five injuries caused to the complainant in the incident that has occurred on 26.09.2007. In fact, after treating the complainant in the General Hospital, Kanakapura, he was referred to NIMHANS, Bengaluru. X-ray of the complainant was also taken wherein it is noticed that there is fracture of the nasal bone.

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However, neither the Doctor, who issued Ex.P.5 nor the prosecution agency has placed the original X-ray film or the radiological report to support the injury No.5 as grievous injury.

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Following the dictum of the Division Bench of this Court in the case of State Vs. Sheenapa Gowda and Others reported in 2010 SCC OnLine Kar 5294, in the absence of any X-ray or radiological report, injury cannot be classified as a grievous injury especially when it is a fracture injury. Therefore, even though as per Ex.P.5, injuries are noted as grievous injury, the same needs to be re-looked in the light of

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the legal principles laid down in the case of Sheenapa Gowda (supra).

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Having said thus, since M.O.1 was in the hands of

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the accused, if he had any intention to take away the life of the complainant, why would he not utilize the opportunity in completing the act of killing the complainant on that day is a question that remains to be unanswered on behalf of the prosecution. Therefore, since the injuries are caused using M.O.1, which are bleeding injuries, this Court is of the opinion that offence punishable under Section 307 could not have been held to be proved in the absence of necessary ingredients placed on record on behalf of the prosecution.

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Therefore, the injuries sustained as is shown in Ex.P.5, which is corroborated by Ex.P.6, which is the opinion given by the Doctor, after examining M.O.1, resulting in bleeding injuries, this Court is of the considered opinion that the conviction of the appellant for the offences punishable under Section 307 of IPC needs to be set-aside; instead, the appellant needs to be convicted for the offences punishable under Section 324 of IPC. In view of the forgoing discussion, points No.1 and 2 are answered partly in affirmative.

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27. REGARDING POINT No.3: Since this Court has

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acquitted the accused for the offences punishable under Section 307 of IPC as referred to supra and scaled down the for the offences to Section 324 of IPC, custody period already undergone by the appellant, if treated as period of imprisonment for the offences punishable under Section 324 and 341 of IPC, by enhancing the fine amount in the sum of Rs.75,000/-, ends of justice would be met. Accordingly, point No.3 is answered partly in affirmative.

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28. REGARDING POINT No.4: In view of the findings of this Court on point Nos.1 to 3 as above, the following:

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ORDER

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(i) Appeal is allowed in part;

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(ii) Accused is acquitted for the offence punishable under Section 307 of IPC; instead, he has been convicted for the offence punishable under Section 324 of IPC, by maintaining the conviction of the accused for the offence under Section 341 of IPC.

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(iii) Consequently, sentence ordered by the learned Trial Judge is modified as under:

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(a) Custody period already undergone by the appellant is treated as period of imprisonment for the offences punishable under Section 324 and 341 of IPC, by enhancing the fine amount in the sum of Rs.75,000/-.

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(b) Time is granted till 20.03.2025 to pay the fine amount. Failing which, appellant shall undergo simple imprisonment for a period of six months.

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(c) Out of the fine amount, a sum of Rs.50,000/is directed to be paid as compensation to the complainant.

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