Sri.Tukkappa @ Tukaram S/O Manageni Ushakari Vs the State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT PASSED IN CRL.A.NO.14/2017, DATED 29.09.2018, FOR

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OFFENCES PUNISHABLE U/S 326 OF IPC, PASSED BY THE I- ADDL. DIST. & SESSIONS JUDGE, BAGALKOT, TO SIT AT JAMAKHANDI, JAMAKHANDI, REVERSING THE JUDGMENT PASSED IN C.C.NO.51/2013, DATED 01.06.2016, ON THE FILE OF PRL. SENIOR CIVIL JUDGE & JMFC COURT, JAFMAKHANDI AND CONSEQUENTLY ALLOW THE PETITION FILED BY THE PETITIONER.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE ORDER THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the judgment of conviction and order of sentence dated 29.09.2018 passed in Crl.A.No.14/2017 by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, setting aside the judgment of acquittal dated 01.06.2016 in C.C.No.51/2013 passed by the Principal Senior Civil Judge and JMFC, Jamakhandi wherein, the

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accused were charge- sheeted by Savalagi Police for the offence punishable under Section 325, 504 and 506 of IPC.

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A complaint was filed by the complainant, by name Hanamant Tippanna Babaladi alleging, that on 01.07.2013 at 3 p.m, when the complainant along with his sheep went to the landed property of Kashiraya Suryavanshi for the purpose of grazing his sheep, at that time, the accused abused the complainant in a filthy language and gave a life threat to him, so also, assaulted

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the complainant on his right hand with club, caused him bleeding injuries and the persons gathered there i.e., brother’s son of the complainant by name Sadashiva Babaladi and his son Sadashiva rescued him and resolved the dispute. While this Sadashiva was taking him to the Police Station, the accused gave a life threat to him. With these allegations, a complaint came to be filed before the Head Constable and the crime was registered against the accused for the aforesaid offences and the criminal law was set in motion. The Investigation Officer, after

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completion of the investigation filed the charge sheet. During crime stage itself the accused was arrested and was enlarged on bail consequently.

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After filing the charge sheet, the learned Jurisdictional Magistrate took cognizance of the offences and copies of the police papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. Charges against the accused were framed and read over and explained to the accused in Kannada and the language

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known to the accused and he pleaded not guilty and claims to be tried.

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To prove the guilt of the accused, prosecution

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in all, examined 6 witnesses from PWs.1 to 6 and got marked Exs.P1 to P4 and also MO.No.1 – the wooden club. Closed the prosecution evidence.

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On closure of the evidence of the

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prosecution, accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating

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circumstances appearing in the evidence of the

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prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence.

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The learned Jurisdictional Magistrate on

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hearing the arguments and on evaluation of the evidence placed on record observed that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. It is further observed that because of the inconsistencies and improvements in the evidences of

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prosecution witnesses, the story put forth by the prosecution cannot be accepted. Thus, by giving benefit of doubt the accused was acquitted by the trial Court for the offences under Sections 325, 504 and 506 of IPC.

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This judgment of acquittal passed by the JMFC, Jamakhandi was challenged by the State by preferring Crl.A.No.14/2017 before the I Additional District and Sessions Judge, Bagalkot sitting at Jamakhandi. The learned first appellate Court, on hearing the arguments

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and on re-assessment of the evidence observed that, in view of the evidence of eye witnesses and the injured, so also, recovery of the club – MO.No.1, at the instance of the accused, the prosecution is able to prove the guilt of the accused and thereby, found the accused guilty of committing the aforesaid offences. The learned lower appellate court set aside the impugned judgment so passed in C.C.No.51/2013 dated 01.06.2016 passed by the Principal Senior Civil Judge and JMFC, Jamakhandi, convicted and sentenced the accused for the offence under

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Section 326 of IPC and acquitted the accused for the offences under Sections 504 and 506 of IPC:

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Order of sentence reads as under:

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“ The respondent/accused is convicted U/s.248(2) of Cr.P.C. for the offence punishable U/s.326 of IPC and sentenced to under simple imprisonment for 2 years and sentenced to pay a fine of Rs.5,000/- in default of payment of

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fine the accused is sentenced to undergo simple imprisonment for 2 months.”

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Now the accused – petitioner is before this

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Court, challenging the impugned judgment of the lower appellate Court.

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The learned counsel Sri Harish S Maigur appearing for the revision petitioner in addition to the grounds urged in the revision petition with all vehemence submits that, no such incident as alleged by the prosecution has taken place. He submits that, both accused and the complainant are relatives. Because of some ill-will, a false complaint is filed. The accused is a Rickshaw driver and there was no occasion for this Rickshaw driver to take his sheep. He further submits that, the so called witnesses examined by the prosecution are the close relatives of the accused. Even their evidence is also not convincing and there is no substantial in the

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evidence given by the witnesses as well as a crossexamination so directed. In view of the admissions in the

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cross-examination, he submits that no such incident has taken place and this accused is falsely implicated by the complainant because of some ill will.

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The learned counsel for the accused –

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petitioner took me to the various evidence placed on record both oral and documentary. Further he submits that the ingredients of the offence under Section 320 of IPC with regard to the commission of the crime under Section 326 being the grievous hurt is not proved by the prosecution. Learned counsel for the petitioner further submits that, the prosecution has not produced any X-ray report, CT scan report to know the exact injuries suffered by the complainant. It is fatal to the case of the prosecution. In support of his submission, learned counsel for the accused – petitioner relied upon the Division Bench

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judgment of this Court in Crl.A.No.100481/2019 dated 21.11.2022. He submits that as the vital medical reports are not produced to show about the grievous injuries suffered by the complainant, it is hard to believe the story

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of the complainant. Thus, he submits that all is not well with the case of the prosecution and the offences so alleged against the accused is not proved. Hence, he prays to allow the revision and set aside the impugned judgment of the lower appellate Court and restore the judgment of the trial court.

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As against this submission, learned AGA Sri T. Hanumareddy with all force submits that, the lower appellate Court has properly appreciated the evidence placed on record by the prosecution. PW.1 being the eye witness and injured, has supported the case of the prosecution. His own brother’s son and his son have supported the case of the prosecution being the eye witnesses and because of the assault on the person of the complainant by the accused, he has sustained the grievous injuries. Immediately, he was shifted to the hospital. In the hospital, police came and recorded his statement. Therefore, he submits that, as there is a proper

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appreciation of evidence by the lower appellate Court, he prays to dismiss the revision petition as devoid of merits.

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I have given my anxious consideration to

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the arguments of both the side. Perused the records.

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According to the case of the prosecution, on 01.07.2013 at 3 p.m, this accused herein, near the land of one Kashiraya Suryavanshi, when the complainant was grazing the sheep, when accused asked him why he is grazing the sheep, at that time, accused picked up a quarrel with the complainant and abused him in a filthy language so as to make the complainant to provoke himself and cause him threat in the public place, so also abused him in a filthy language and gave a life threat to him. rate. It is alleged that by using MO.No.1 – club, accused assaulted on the left wrist of the complainant and caused him grievous injuries.

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In a case of present nature, is a bounden duty of the prosecution to prove the guilt of the accused

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beyond all reasonable doubt. The learned Trial Court has acquitted the accused for the offences under Sections 504 and 506 of IPC. When it is the case of the prosecution that, accused abused the complainant and also gave a life threat, and where such an offence is not proved by the prosecution as per the findings of the learned lower appellate Court, prosecution has not challenged the said findings. No appeal is preferred being aggrieved by the said finding of the lower appellate Court by the prosecution. Now the accused is before this Court challenging his conviction and sentence for the offence under Section 326 of IPC.

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Section 320 of the IPC defined what is

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`grievous injury’. As per this section, the ingredient to prove the grievous injuries is stated in Section 320 of IPC which gives a definition of the grievous injuries. The said provision reads as under:

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“320. Grievous hurt

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The following kinds of hurt only are designated as "grievous":-

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First- Emasculation.

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Secondly- Permanent privation of the sight of either eye.

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Thirdly- Permanent privation of the hearing of either ear,

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Fourthly- Privation of any member or joint.

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FifthlyDestruction or permanent impairing of the powers of any member or joint.

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Sixthly- Permanent disfiguration of the head or face.

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Seventhly- Fracture or dislocation of a bone or tooth.

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Eighthly- Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.”

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The law is very much settled that the

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offence of causing grievous hurt cannot be said to be made out unless the ingredients of Section 320 of IPC are

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satisfied. That means there must either be an injury falling within the categories enumerated in the first seven clauses of Section 320 of IPC and there must be proof of

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circumstances falling within the 8^th clause where there is no evidence of victim was in severely bodily pain or unable

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to follow his ordinary pursuits. Then 8^th clause is not attracted, merely because the accused was in hospital and took a treatment as inpatient. So the prosecution is under obligation to prove all the ingredients of Section 320 of IPC.

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Now let me analyze the evidence placed on record by the prosecution that, whether it is able to

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establish the offence under Section 326 of IPC in the manner alleged.

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PW.1 being the complainant and injured,

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has come before the trial court and stated that, about 5 years back he had been to the land of Kashiraya Suryavanshi to graze the sheep. At that time accused came there and started abusing him objecting for leaving sheep there and assaulted him with a club on his right palm and sustained injuries. Further he states that his

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brother’s son and his son came there and rescued and took him to the Savalagi Hospital and thereafter to Jamakhandi Government Hospital. Police came to the Hospital, he says a statement/complaint as per Ex.P1. He identified MO.No.1 weapon alleged to have been used by the accused to commit the crime against the complainant. In the cross-examination, he states that, he is the resident of the Chikkalaki village. He owns land and house properties there. Further he states that, he has got four children and all are residing together. His family has got 60 sheep. He denied the suggestion that, his son Sadashiva is residing in Bilagi and not with him. According to him, on 01.07.2013, he was at Chikkalaki village. Accused is his distant relative. There is a dispute between him and his wife. Further he states that, land of accused is not there near the scene of offence. Accused is running an Autorickshaw. After the incident, he went to

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the Savalagi police station to lodge a complaint. The clubs like MO.No.1 are very much available everywhere. He denied other suggestions.

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If the evidence of PW.1 is scrupulously

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perused, he has given a altogether different evidence with regard to the filing of the complaint. In examination-inchief, he states that immediately after the incident, he has gone to Savalagi Hospital. But, in the cross-examination he states that he went to the police station to lodge a complaint. There is no landed property available near the scene of offence, belonging to the accused. Then how the incident took place and in whose land the said incident took place is a mystery. From the evidence of PW.1 as rightly appreciated by the trial Court, there is no proof regarding the scene of offence. Therefore, if such an evidence is placed on record through PW.1, it requires corroboration.

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PW.2 – Barmappa Mayappa Honavada is a

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scene of offence panch. He states that, he was called by the police to the land of Kashiraya Suryavansi. Police conducted the panchanama in his presence in between 9 am and 10 am. He identified Ex.P2 – the panchanama and

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his signature on the same. The police seized the said MO.No.1 in his presence. In the cross-examination, he states that he is resident of Chikkalaki village. There is a distance of two kilometer between Chikkalaki village and Chikkalaki cross. CW.5 took him to Chikkalaki cross.

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Police were there in the land of one Suryavansi. Police have not called him. He has not given an instructions to write the panchanama. He has signed the panchanama in the landed property of Kashiraya Suryavansi. According to him, he is acting as an elderly person and often visits the police station. He knows the police, which means he, appears to be a professional pancha employed by the IO to conduct the panchanama. Therefore, such an evidence

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of the professional pancha, unless it is, proved by the prosecution about presence of this PW.2 at the time of panchanama, such an evidence cannot be accepted as a truthful evidence. He must have been called to the police station as argued by the counsel for the accused and signature must have been taken. According to him, police have seized MO.No.1 from the spot shown by CW.5. CW.5

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is Sadashiva examined as PW.3. He is the son of the complainant. According to him, his father is a shepherd. About a year back, his father had gone to near Chikkalaki cross to graze the sheep. At that time himself and CW.2 went to give food to the complainant. There was a quarrel between accused and CW.1 for leaving the sheep there. They pacified the quarrel. Accused assaulted his father with hand and club on his right hand. He sustained injuries. They took him to the hospital. Incident took place at about 3 pm on that day. Accused gave a life threat to his father. He identified MO.No.1.

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On perusal of the examination-in-chief, it shows that there was a quarrel and they pacified the quarrel. When exactly the accused has assaulted his father is not stated by the PW.3. In the cross-examination he states that he was also grazing sheep with his father and brother. On 01.07.2013, he had gone to the house. That means, when the incident took place this PW.3 was not present as per his answer in the cross-examination. But,

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this witness has been branded as an eye witness by the prosecution. Accused is his brother in law. He does not know whether there is a dispute between the accused and his wife. Accused is running an Autorickshaw. He pacified the quarrel. He denied other suggestions. In view of the evidence given in the cross-examination, it shows that, on 01.07.2013, he had gone to the house and was not present when the alleged incident took place. Therefore, evidence of PW.3 cannot be accepted that he was really a eye witness to the said incident as alleged by the prosecution.

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PW.4 – Doctor Shrishail has examined the complainant at Jamakhandi Hospital at 6.55 p.m on 01.07.2013. He noticed the injuries as under:

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‘Abrasion and swelling present over the right hand dorsal aspect injury, fresh bleeding was present, tenderness present.’

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According to the Doctor, X-ray of the right

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hand was taken. He is an orthopedic surgeon. He noticed

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“ oblique fracture neck of 3^rd metacarpal extending obliquely to shaft with displacement .” When this PW.4 has taken the X-ray to know the exact fracture, nothing prevented the prosecution to collect the said fracture and produce before the Court. He opines that injuries are grievous in nature. He had issued the Wound Certificate as per the Ex.P3. But, how many days the complainant – injured was in hospital and whether he was restrained or refrained from discharging his ordinary pursuits for a continuous period of 20 days is not at all stated by this PW.6 – Doctor who has issued the certificate. According to him, the said injury might have been caused by contact with hard and blunt object. He states that by assaulting the person by using MO.No.1, the said injuries may be possible. In the cross-examination he states that he is not an orthopedic surgeon. He has issued the certificate based upon the opinion of the Doctor Kandagal. That Dr.Kandagal is not examined by the prosecution. He does not remember through whom he sent the MLC in this case. Thus, he being a Doctor, based

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upon the opinion of the Dr. Kandagal, he has issued the wound certificate – Ex.P3. When such evidence is placed on record through this Doctor, a doubt arises that, whether the complainant had really sustained the grievous injuries in the manner stated by the prosecution. Therefore, evidence of the PW.4 – Dr. Shrishaila cannot be accepted as truthful evidence, as he has not given his opinion but, based upon the opinion of the Kandagal, who has examined the complainant, has given the opinion.

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PW.5 – Sadashiva Muttappa Babaladi, is

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an eye witness and a close relative of the complainant. According to him, at 3.00 pm on that day, he noticed accused giving life threat to the complainant. Himself and the son of the complainant Sadashiva pacified the quarrel. Police have recorded his statement. But, in the crossexamination, he states that he was not grazing the sheep. CW.1 is his brother. He states that CW.5 is the son of the complainant. He is acting as an elderly person. Accused is not cultivating the land of Suryavansi on share basis.

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Accused is also his relative. Thus, the evidence of this PW.5 shows that, he was not present when the alleged incident has taken place and he must have given evidence before the trial Court at the instance of the complainant. This possibility cannot be ruled out.

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It is stated that the complainant has sustained the grievous injuries. Either the complainant or eye witnesses never say that, really the complainant has sustained the bleeding injuries in the manner stated by the prosecution.

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PW.6 – Dilip Kumar is a Head Constable

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who went to the Government Hospital Jamakhandi on 02.07.2013 on receipt of the MLC intimation. There he recorded the statement of complainant as per Ex.P1, came to the police station and registered the crime in Crime No.93/2013 and set the criminal law in motion. Then he went to the scene of offence at about 9 am on 03.07.2013, conducted the panchanama in between 9.00

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am and 10.00 am and recovered MO.No.1 from the spot. None of the witnesses have stated before the Court that, said MO.No.1 was still lying at the scene of offence and even available when the panchanama Ex.P2 was conducted by the police. PW.6 was cross-examined by the defence. He has stated that there is a distance of 16 kilometres from Chikkalaki Cross to Savalagi. It is the distance of half-an-hour from police station to the scene of offence. He secured panchas. They were standing near the cross. Often CWs.2 and 3 come to the police station.

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He denied other suggestions. That means CWs.2 and 3 so stated in the charge sheet are the professional panchas. They often visit the police station. Whether really the PW.6 has visited the scene of offence and conducted the panchanama is not at all corroborated by any of the witnesses in this case. In all criminal cases, investigation officers are the supervisors of the investigation. Unless their evidence corroborated, their evidence is become formal in nature.

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Thus, on scrupulous reading of the entire

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evidence placed on record by the prosecution, though PW.6 says that he went to Jamakhandi Government Hospital to read the statement of PW.1, but, PW.1 states that, he went to the police station and lodged a complaint. It is a material contradiction in the evidence of PW.1, with regard to the filing of the complaint. To prove such incident which has taken place in the manner stated by the prosecution, except the self-serving and interested evidence of PW.1, there is no evidence placed on record by

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the prosecution. The witnesses so examined are their relatives. Perhaps that must have prompted son of the complainant and his brother to give evidence against the accused, because of some family animosity. This possibility cannot be ruled out. Though the independent witnesses are available, no such witness is examined by the prosecution. It is not the case of the prosecution that,

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near the scene of offence, when the alleged incident took place, the people have not gathered. No such evidence is placed on record. When it is a landed property, the other

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cultivators of the property must be available near by the scene of offence. No such evidence is brought on record.

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In view of all these factual features coupled with the contradictions, omissions and discrepancies in the evidence of the prosecution, as rightly appreciated by the trial Court, the prosecution has failed to prove the guilt of an accused beyond all reasonable doubt. The ingredients of offence under Section 326 of IPC are not fulfilled with legal evidence. The doctor’s evidence is based upon the opinion of another Doctor which do not inspire any confidence that, it is accused who was an assailant. Therefore, the learned trial Court has committed a grave error in re-appreciating the evidence and came to a wrong conclusion that, accused is guilty of committing the offence under Section 326 of IPC. In view of all these factual features, there arises a doubt in the case of prosecution and that benefit of doubt has to be extended to the accused. Accordingly, the accused is entitled for acquittal by giving benefit of doubt.

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29. Resultantly, I pass the following:

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ORDER

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i) The revision petition is allowed .

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ii) The judgment of conviction passed in Crl.A No.14/2017 dated 29.09.2018 by the I Additional District and Sessions Judge, Bagalkot (sitting at Jamakhandi), is hereby set aside and consequently, judgment of acquittal passed in CC No.51/2013 dated 01.06.2016 by the Prl.Senior Civil Judge and JMFC, Jamakhandi, is restored.

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iii) Consequentially, the petitioner-accused is acquitted of the charges for the offence punishable under Section 326 of the IPC.

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iv) His bail bonds stand cancelled. He is set at liberty.

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