Kushalappa @ Sakkare Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CODE OF CRIMINAL PROCEDURE PRAYING TO SETASIDE THE JUDGMENT AND CONVICTION ORDER DATED 24.01.2013 PASSED BY THE SESSIONS JUDGE, KODAGU, MADIKERI IN SPL.CASE (ATRO) NO.32/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 324 AND 326 OF INDIAN PENAL CODE.

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THIS APPEAL, COMING ON FOR FINAL 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 V.Srinivas, learned counsel for the appellant and Sri Channappa Erappa, learned High Court Government Pleader.

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Appellant has been convicted by the Special Judge in Spl. Case (Atro) No.32/2009 on the file of the District and Sessions Judge, Kodagu, Madikeri, by the judgment dated 24.01.2013 for the offence punishable under Sections 324 and 326 of the Indian Penal Code and sentenced as under:

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“Accused is acquitted of the charge under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 506 IPC and he is convicted for the offences under Sections 324 and 326 IPC and is sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs.25,000/- (Rupees twenty five thousand only) and in default of payment of fine to undergo rigorous imprisonment for six months.

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Out of the fine amount a sum of Rs.20,000/- (Rupees twenty thousand only) shall be awarded to P.W.1 the victim of the offence as compensation under Section 357(1) Cr.P.C.

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It is made clear that in view of the proviso to sub section (1) of Section 421 Cr.P.C., even if the accused undergoes the default sentence, he is not absolved of his liability to pay the fine amount.

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The period spent by the accused as an under trial prisoner shall be given set off against the sentence now imposed.

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M.O.1 is confiscated.”

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The facts in nutshell for disposal of the appeal are as under:

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Smt. Baby, a woman belonging to Scheduled Caste and accused being a person belonging to Kodava community, were known to each other. The victim was staying in the servant’s quarters of one Uthappa who was also called as ‘Commissioner Uthappa’, situated in Hattihole within the limits of Somwarpet Police Station.

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On 06.07.2009, in the evening, the victim/complainant

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had been to the shop of C.W.5-B.S.Lingappa for purchase of some house hold articles. Accused who was present in the shop said to have asked the victim to come to his land for labour Work which was being refused by the victim. She also mentioned that she has already joined the estate of Commissioner Uthappa. On hearing the said refusal, accused got enraged and said to have abused the victim in filthy

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language taking out her caste name to degrade her in the public view.

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The accused also assaulted the victim with kathi which was in his hand resulting in injury being caused to the victim.

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When the victim lady cried for help, her son-Muthappa and shop keeper-B.S.Lingappa and the chance witness by name James rescued her from the clutches of the accused and pacified the quarrel.

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A complaint came to be lodged in this regard on 07.07.2009 after the victim was treated in the Government Hospital, Somwarpet.

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After registering the case for the offence punishable under Sections 324, 326, 506 of the Indian Penal Code and under the provisions of Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the police thoroughly investigated the matter, inter alia arrested the accused and filed the charge sheet.

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The learned Special Judge took cognizance of the aforesaid offences and framed the Charge. Accused pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the accused, eight witnesses were examined as P.Ws.1 to 8, comprising of victimSmt. Baby, her son –Sri M.Muthappa, Sri E.Ashraf-panch witness, Sri Francis-witness, shop keeper-B.S.Lingappa, chance witness-James Santha Meyar, Dr.Venkatesh who treated the victim on 07.07.2009 and issued the wound certificate vide Ex.P.6, and Sri M.Narayana, Deputy Superintendent of Police.

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The prosecution, in all, placed eight documents on record which were exhibited and marked as Exs.P.1 to 8 comprising of complaint, spot mahazar, statements of prosecution witnesses who did not support the case of the prosecution, wound certificate, caste certificates of the accused and the complainant. The weapon used in the incident is seized and marked as M.O.1 before the Trial Court.

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On conclusion of recording of the evidence, learned Trial Judge recorded the accused statement as is contemplated

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under Section 313 of the Code of Criminal Procedure, wherein, accused has denied all the incriminatory materials, but did not chose to place any written submission on record as is contemplated under Section 313(4) of the Code of Criminal Procedure nor lead any defence evidence.

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Thereafter, learned Trial Judge heard the parties in detail and by virtue of the impugned judgment, convicted and sentenced the accused as aforesaid.

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Against the Order of acquittal of the appellant for the Charge under Section 506 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, State or the victim did not chose to file any appeal and therefore, it has become final.

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Sri V.Srinivas, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that the conviction of the appellant for the offence punishable under Sections 324 and 326 of the Indian Penal Code is incorrect, inasmuch as, the prosecution evidence is hardly sufficient to maintain the conviction of the

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appellant for the aforesaid offences, in the absence of any independent witness supporting the case of the prosecution.

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He brought to the notice of the Court that there was delay in lodging the complaint and P.W.5 did not support the case of the prosecution in toto, so also, P.W.6. Therefore, self serving testimony of P.W.1 ought not to have been relied upon by the learned Trial Judge for recording the Order of conviction for the aforesaid offences and sought for allowing the appeal.

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Alternatively, learned counsel for the appellant contends that in the event this Court believing the oral testimony of P.W.1 coupled with the testimony of P.W.7-Doctor who issued Ex.P.6-wound certificate, at the most, offence punishable under Section 324 would get attracted and not the offence under Section 326 of the Indian Penal Code and sought for allowing the appeal to that extent.

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He would further submit that consequently this court may treat the period of custody already undergone by the appellant as the period of imprisonment for the offence punishable under Section 324 of the Indian Penal Code by enhancing the fine

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amount reasonably and sought for allowing the appeal to such extent.

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Per contra, Sri Channappa Erappa, learned High Court Government Pleader supports the impugned judgment.

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He would further contend that even though there is a day’s delay in lodging the complaint, same is explained by the prosecution by placing cogent evidence on record.

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Admittedly, P.W.1 being a lady, went home after she sustained injury and being unable to bear the pain, visited the government hospital, wherein, x-ray taken and there is a fracture noted by the Doctor. Therefore there is delay in lodging the complaint which did not cause any serious dent to the case of the prosecution nor there was any material on record to show that accused has been falsely implicated in the incident.

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He would further contend that there is a voluntary act of committing the assault on the victim by the accused as could be seen from the complaint averments and oral testimony of P.W.1 by use of M.O.1. Therefore, prosecution is successful in

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placing such material evidence on record which is sufficient in maintaining the conviction of the appellant for the offence punishable under Sections 324 and 326 of the Indian Penal Code.

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He would further contend that the Doctor who is examined as P.W.7 did not nurture any previous enmity or animosity against the appellant nor extra affinity towards the victim to give false wound certificate and therefore, conviction is to be maintained and appeal needs to be dismissed.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, the following points would arise for consideration.

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(i) Whether the material evidence available on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Sections 324 and 326 of the IPC?

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(ii) Whether the appellant makes out a case that the impugned judgment of convicting

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appellant is suffering from legal infirmity, perversity and thus calls for interference?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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REGARDING POINT Nos.1 AND 2: In the case on hand,

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incident has occurred on 06.07.2009 near the shop of B.S.Lingappa who has supported the case of the prosecution, in part, by examining himself as P.W.5 stands established. Admittedly, James and B.S.Lingappa are the persons who are no way related to the complainant, whereas, P.W.2-Muthappa is the son of the complainant/victim.

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Sri B.S.Lingappa, has stated before the Court that he was

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not in station on the date of the incident. However, in the cross-examination, the statement that has been given to him has been confronted to him which has been proved through the Investigation Officer who did not nurture any previous enmity with the accused.

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Further, the incident according to the prosecution has occurred when P.W.1 refused to come for the labour work in the estate of the accused. She has also stated that she is

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already working in the estate of Uthappa @ Commissioner Uthappa. Being enraged by the same, appellant said to assaulted with M.O.1 on the hand of P.W.1/victim/complainant.

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These aspects of the matter when viewed cumulatively, why unnecessarily P.W.1 would implicate the accused in a false case is a question that remains unanswered. When there is total denial and there is no other version that has been placed on record by the accused, the version to the extent that prosecution has been able to establish before the Court is to be believed.

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Further, there is application of judicious mind into the case of parties inasmuch as the learned Special Judge has acquitted the appellant for the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, so also under Section 506 of the Indian Penal Code.

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Further, the Doctor who issued the wound certificate did not nurture any previous enmity or animosity against the

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appellant or extra affinity towards the complainant, so as to issue false wound certificate vide Ex.P.6.

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He has examined the injured and thereafter took x-ray. No doubt, x-ray and radiological report are not placed on record. Learned Sessions Judge simply placed his reliance on Ex.P.6 while classifying the injury as grievous injury which is a opinion evidence of Doctor.

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Said approach of the learned Sessions Judge cannot be countenanced inasmuch as for establishing the grievous hurt especially fracture injury prosecution is bound to place on record the original x-ray or the radiological report.

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View of this Court in this regard is fortified by the principles of law enunciated by the Division Bench of this Court in the case of State v. Sheenappa Gowda reported in (2011) 4 KCCR 2759 , wherein it has been held as under:

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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

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prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 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 hat unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the 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, he same would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained

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fracture of middle phalanx, which is 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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Therefore, to the extent that the conviction of the appellant for want of original x-ray or the radiological report except Ex.P.6, convicting the appellant for the offence punishable under Section 326 of the Indian Penal Code needs relook and same needs to be set-aside.

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Admittedly, blood injury has been caused to the body of P.W.1 and therefore, offence is punishable under Section 324 of the Indian Penal Code. Accordingly, point Nos.1 and 2 are answered partly in the affirmative .

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REGARDING POINT No.3: In view of the finding of this

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Court on point Nos.1 and 2 as above, especially, scaling down the offence from Section 326 to 324 of the Indian Penal Code,

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custody period already undergone by the appellant if treated as period of imprisonment by enhancing the fine amount in a sum of Rs.50,000/- which can be paid as compensation to the victim, ends of justice would be met. Accordingly, point No.3 is answered partly in the affirmative .

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

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ORDER

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(i) The Criminal Appeal is allowed in part .

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(ii) While maintaining the conviction of the appellant for the offence punishable under Section 324 of the Indian Penal Code, conviction for the offence punishable under Section 326 of the Indian Penal Code is hereby set-aside.

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(iii) Consequently, sentence is modified as under: (a) Custody period already undergone by the appellant is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.50,000/- payable by the appellant on or before 25^th March 2025,

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