M Hariprakash Vs State of Karnataka

This appeal is filed questioning the judgment of acquittal of accused persons for the offence punishable under Section 307 read with Section 34 of IPC and prayed this Court to convict respondent Nos.2 to 4 for the offence punishable under Section 307 of IPC.

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The factual matrix of case of the prosecution that accused Nos.1 to 3 on 26.10.2012 at 9:45 p.m., when the informant was dumping the plants in the vacant space abutting to his house, at that time, accused No.1 who is the neighbour spitted on him. When the informant told accused No.1Gurappa to be cautious while spitting, he abused him in a filthy language. The sons of Gurappa i.e., Accused Nos.2 and 3 were also came to spot and accused No.2 assaulted the informant with bicycle pump on his right side head which caused bleeding injury. The remaining persons assaulted the informant with brick and club, as a result, he had sustained injury to right ribs

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and back and he has suffered simple injuries. The Gurappa threatened informant telling his sons to kill him. There was a

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civil dispute between informant and the said persons and the civil suit is pending in the Court at Malur. Due to the said illwill, accused have assaulted the informant. One Krishnappa and Gangaraja shifted injured to the hospital for treatment and hence, complaint was given in terms of Ex.P.1 and case was registered in Cr.No.256/2012 and FIR is marked as Ex.P.6. The Police having registered the case, investigated the matter and concluded the investigation and filed the charge sheet against the accused persons for the offences punishable under Section 323, 324, 326, 504, 506 and 307 r/w Section 34 of IPC. The Prl. Civil Judge and JMFC, Malur having received the charge sheet taken the cognizance and registered the case in C.C.No.111/2013. The accused persons were secured and committed the matter to the Sessions Court since the offences are triable by the Sessions Court.

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The Sessions Judge after receipt of the committal records, registered the same as S.C.No.96/2013 and presence of the accused was secured and accused persons did not plead guilty and they claims the trial. In order to prove the case of prosecution, prosecution examined P.W.1 to P.W.12 and got marked the documents at Ex.P.1 to Ex.P.8 and also got marked

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MO.1 to MO.4. The accused persons were subjected to 313 statement and they have not lead any evidence and denied the incriminating evidence. The Trial Court having considered both oral and documentary evidence available on record, convicted the accused persons for the offence punishable under Section 324 r/w Section 34 of IPC and acquitted the accused for other offences. The Trial Court having convicted the accused persons sentenced to pay a fine of Rs.5,000/- each and in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 324 r/w Section 34 of IPC. The Trial Court also invoking Section 357(3) of Cr.P.C, ordered that A1 to A3 shall pay the fine amount of Rs.15,000/to P.W.1 as compensation. It is also made it clear that even if the accused undergoes for the default sentence, they are not absolved of their liability to pay the fine amount in view of the proviso to sub-section (1) of Section 421 of Cr.P.C. The period spent by the accused as under-trial prisoners shall be given set off against the substantive sentence of imprisonment now imposed.

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Being aggrieved by the acquittal for the offence punishable under Section 307 read with 34 of IPC, the present

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appeal is filed by the injured P.W.1. The main contention urged in this appeal is that the Trial Court gravely erred in acquitting accused persons for the offence punishable under Section 307 of IPC which is manifestly erroneous and evidence of both oral and documentary evidence has not been properly considered by the Trial Court. The Court below gravely erred when evidence of P.W.1 is clear that respondents have assaulted on vital parts of the body with an intention to take away the life of the appellant and this aspect is ignored by the Court below. The Court below gravely erred that P.W.7 is a Doctor who issued Ex.P.5-wound certificate and has opined that injuries 1 to 3 are simple in nature and the 4^th injury is grievous in nature and this aspect is ignored by the Court below. The Court below gravelly erred that P.W.11 the Doctor who examined the appellant on 26.10.2012 has noticed lacerated wound over right temporal region sutured, Abrasion over right and left 2^nd rib, abrasion of around right lumbar region, tenderness and swelling over upper part of forearm and abrasion over right parietotemporal region and has further deposed that right temporal depressed fracture with specks of pneumocephaly and has further opined that the injuries are grievous in nature. It is also contended that patient

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was discharged on 13.11.2012 and he was treated for about 19 days and discharge summary is also marked as Ex.P.7. The Trial Court has ignored the evidence of P.W.11. The Court below gravelly erred that P.W.12 another Doctor who examined the appellant on 26.10.2012 on 7:15 PM has noticed right temporal depressed fracture with speck of pneumocephalus (When the injury breaches the layer duramater of brain) and the report is marked as Ex.P.8 and this aspect is also ignored by the Trial Court.

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The counsel during the course of argument also brought to notice of this Court that there is no dispute with regard to the fact that there was a land dispute between the parties. The counsel also would contend that the parties are relatives and injury No.4 is grievous in nature and that there was depressed fracture and the document Ex.P.8 also evidenced the said fact. The evidence of Doctors P.W.11 and P.W.12 is very clear regarding nature of injuries are concerned. The Doctor P.W.11 who is the treated Doctor has been examined under whom the injured took the treatment for a period of 19 days. The counsel also would vehemently contend that when the injured was taken to hospital and the Doctor who

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treated at the first instance referred the patient to Victoria Hospital and he was again referred to Nimhans Hospital and certificate issued by the Nimhans Hospital is very clear that he had suffered depressed fracture. The counsel would vehemently contend that the weapons which have been used for committing the offence are bicycle pump and also the club and stone. The accused No.2 inflicted the injury with bicycle pump on the victim and accused Nos.1 and 3 assaulted with club and stone. The evidence of injured corresponds with nature of injuries.

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The counsel also would vehemently contend that when the accused Nos.2 and 3 came to the spot, accused No.1 says not to leave PW1 and this evidence is very clear that with an intention to take away the life, an assault was made with the bicycle pump, club and stone. The counsel also would submit that during the course of cross-examination, suggested to the P.W.1 that there was a civil dispute and hence, categorically admitted the motive for committing the offence. The counsel would vehemently contend that the Trial Court committed an error only in convicting the accused for the offence punishable under Section 324 of IPC and that too

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imposed only fine and not imposed any sentence and only imposed the default sentence. The Trial Court committed an error in acquitting the accused for the offence punishable under Section 504, 506 and 307 r/w Section 34 of IPC. The counsel would contend that the evidence of P.W.1 is very clear that civil dispute is going on between P.W.1 and accused No.1. The prosecution also relies upon the evidence of P.W.2 who is an eye witness and also a mahazar witness to Ex.P.4 and P.W.2 went to the house of P.W.1 to collect a workers card at 9:30 a.m., and incident was taken place at 9:45 a.m. The evidence of P.W.3 is also very clear that he is an eye witness and he was driving his Auto and going to Chokkondahalli and he witnessed the incident. The counsel would contend that P.W.4 is examined to prove the mahazar Ex.P.4 and recovery of MO.1 to MO.4.

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The other witness is P.W.5 eye witness who is the mother of P.W.1 had witnessed the incident. The P.W.6 is Manjunath who is a mahazar witness in respect of Ex.P.4. The witnesses P.W.4 and P.W.6 are mahazar witnesses to Ex.P.4 with regard to recovery of MO.1 to MO.4. The counsel would vehemently contend that the Doctor P.W.7 who had treated at the first instance at Malur Hospital and examined the injured on

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the very same day at 10:30 a.m., and issued the wound certificate as per Ex.P.5. Though injury No.1, 2, 3 and 5 are simple in nature, but injury No.4 is grievous in nature, the fact that P.W.7 had referred the patient to Victoria Hospital in not in dispute. The counsel would vehemently contend that in order to prove that the documents stands in the name of father of P.W.1 examined P.W.8 Gram Panchayat Secretary in respect of Ex.P.2 and Ex.P.3 that is demand register extract and assessment register extract standing in the name of the Munipoojappa who is the father of P.W.1.

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The P.W.9 is ASI who had recorded the statement

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of P.W.1 in Malur Govrenment Hospital as per Ex.P.1 having received the information about the incident and he went and recorded the statement on 26.10.2012 at 1:45 p.m.

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The P.W.10 is Malur Police Station PSI speaks about he had received the message from the Government Hospital on 26.10.2012 at 12:30 and immediately he has sent the P.W.9 to take the statement of the victim and who also conducted the spot mahazar on the same day at 4:30 to 5:30 p.m., and so also recorded statements of P.W.2 and P.W.5 on the very same

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day. The PSI also recorded the statement of P.W.1, P.W.3, C.W.3 and C.W.5 on 14.11.2012 and so also received the wound certificate on 20.12.2012 that is Ex.P.5 from P.W.7. The counsel would contend that spot extract from Gram Panchayat officer that is P.W.8 was collected on 25.12.2012 that is Ex.P.2 and Ex.P.3. The counsel would contend that P.W.11 is the Doctor who has treated the injured at Victoria Hospital and examined him on the date of the incident at 4:15 p.m., and issued the discharge summary as per Ex.P.7 and this document is very clear that he had suffered the fracture. The Doctor P.W.12 who is the Neurosurgeon of Nimhans Hospital who examined the injured at 7:15 p.m., on the very same day when the injured was referred to the Nimhans Hospital from Victoria Hospital and injured was subjected to CT scan and found the head injury of right temporal depressed fracture with speck of pneumocephalus and document Ex.P.8 is very clear that the said injury could be caused due to hit by the bicycle.

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The counsel referring the oral evidence and documentary evidence, would vehemently contend that the Trial Court has not considered the material on record in proper prospective and even MO.1 to MO.4 bicycle pump, club, brick

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and T-shirt which contains the blood stains are also marked. The defense only relies upon Ex.D.1 and Ex.D.2 that is deposition of P.W.2 in C.C.No.204/2008 and assessment register extract as Ex.P.2. The counsel would vehemently contend that the Trial Court committed an error in not appreciating both oral and documentary evidence available on record and committed an error in acquitting the accused for the offence punishable under Section 504, 506 and 307 of IPC and prayed the Court to convict the accused persons for the offence punishable under Section 307 r/w Section 34 of IPC.

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Per contra, the learned counsel appearing for the State would reiterate the grounds which have been urged by the counsel appearing for the appellant/victim and submits that the evidence of doctors i.e., PW11 and 12 is very clear that the victim had sustained the depressed fracture that too on the vital part and the Trial Court ought to have convicted the accused persons for the offence punishable under Section 307 of IPC.

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Per contra, the learned counsel appearing for the respondents/accused persons would vehemently contend that

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the Trial Court in detail considered both oral and documentary evidence available on record and also taken note of the evidence of the doctor-PW7 who treated the injured at the earliest point of time. The counsel also would submit that Trial Court taken note of the evidence of PW11 and PW12 and the Prosecution fails to produce any document to show that the injured had suffered the fracture and no X-ray is produced before the Court and the same is also taken note of by the Trial Court. The counsel also would submit that the Trial Court also taken note of the judgment of this Court reported in (2011) 4 KCCR 2759 in the case of STATE VS. SHEENAPPA GOWDA

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AND OTHERS wherein this Court held that it is well settled that unless the prosecution produces the X-ray for confirmation of fracture obtained by the doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. Hence, not accepted the case. The counsel also submit that even not proved the case for the offences punishable under Sections 307 and 326 of IPC and only convicted the accused for the offence punishable under Section 324 of IPC and imposed the fine. The counsel also would submit that incident was taken place in connection with

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land dispute between the parties and there was civil dispute and the Court has to take note of the same and dismiss the appeal.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the Points that would arise for the consideration of this appeal before the Court are:

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Whether the Trial Court committed an error in coming to the conclusion that the prosecution failed to prove the case that there was an intention to take away the life and the same also not amounts to invoking Section 326 of IPC and whether it requires interference of this Court?

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Whether the Trial Court committed an error in imposing the fine of Rs.5,000/- having accepted the evidence of the victim as well as eyewitness evidence and whether it requires modification of the sentence?

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What order?

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Points Nos.1 and 2:

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, this Court has to take note of the dispute between the parties and there was a civil dispute between the parties and the injured supported the case of prosecution and eyewitnesses have also supported the case of prosecution. Hence, there was a scuffle between the parties and the same is also accepted by the Trial Court while convicting the accused for the offence punishable under Section 324 of IPC.

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Having perused the complaint which is marked as Ex.P1, it discloses that an allegation is made that accused No.2 assaulted the injured-Hariprasad with a bicycle pump on the head, as a result, he had sustained bleeding injury and accused Nos.1 and 3 assaulted with brick and club, as a result, he had sustained injury on his back. PW1 also deposed that Gurappa told to his sons to inflict injury on the neck and abuse in a filthy language. Having considered this Ex.P1 which came into existence immediately after the incident and having considered the evidence of PW1-injured and other witnesses, it discloses

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that accused persons were discussing to take away the life, but no one speaks that Guruppa instigated to aim his blow on the neck. But in the evidence of injured as well as eye witnesses, nothing is found with regard to the intention to take away the life and accused aimed to cause the injury. While invoking Section 307 of IPC, there must be an intention to take away the life and also the blow for which they aimed to take away the life of the injured and the same is missing. Hence, we do not find any ground to invoke Section 307 of IPC.

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However, the learned counsel appearing for the appellate would vehemently contend that Trial Court committed an error in not convicting the accused for the offence punishable under Section 324 of IPC since there is a depressed fracture. No doubt, the counsel brought to notice of this Court the evidence of PW11 wherein he deposed regarding nature of injuries and also the injury No.5 as per evidence of PW11 is 2x2 cm abrasion over right parietotemporal region and patient was advised to take CT brain; chest X-ray; X-ray of right forearm AP and lateral view; X-ray of right leg AP and lateral view and complete hemogram and investigation was also done. The

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doctor refers that there was a CT brain, right temporal depressed fracture with specks of pneumocephaly and no evidence of parenchymal injury and opined that it is a grievous injury and could be caused by recent assault.

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The counsel also brought to notice of this Court the evidence of PW12 who is also the doctor who treated the injured in NIMHANS, Bangalore and PW11 is the doctor at Victoria Hospital. PW12 also says that CT scan of his head and found injury of right temporal depressed fracture with speck of pneumocephalus and no evidence of parenchymal injury. The evidence of PW11 is also reiterated by PW12. In the cross examination of PW11, he admits that he has not given any certificates with respect to the injury sustained by PW1 but Ex.P7 discharge summary was marked and no certificate was issued. The counsel relies upon Ex.P7 that there was a discharge summary, but not produced any CT brain X-ray. So also PW12 speaks only based on further evaluation, CT scan but CT scan is not before the Court. No doubt, Division Bench of this Court in the case of SHEENAPPA GOWDA referred supra held that if no X-ray is produced, only if report is given

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based on the clinical examination, then question of invoking Section 326 and 307 of IPC does not arise. Even the appellant has not made any effort to produce the CT scan before this Court by filing any application under Section 391 of Cr.P.C. However, this Court has to take note of the nature of injury spoken by PW11 and PW12 and there was a depressed fracture, but no evidentiary material before the Court to comes to such a conclusion. When such being the case, the Trial Court taken note of nature of injuries and not accepted the evidence of PW11 and PW12 in the absence of CT scan relying upon the judgment of Division Bench of this Court.

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However, the Trial Court lost sight while considering the nature of injuries and also disbelieved the evidence of PW11 and PW12 on the ground that the injured went to hospital subsequently. But the fact is that at the first instance, he went to the hospital of PW7 and took first aid and then injured was referred to the higher center. Accordingly, he went to the Victoria Hospital and Victoria Hospital doctor treated him and also he was again referred to NIMHANS on the very same day and injured was examined by PW11 in the evening. PW12

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examined him at around 07.00 p.m., onwards and sent back and he was hospitalised in Victoria Hospital for a period of 19 days. The Trial Court fails to take note of this aspect into consideration while sentencing. When the injured was inflicted with the bicycle pump and also with bricks and club, the Trial Court ought to have been taken note of the same and also the period of treatment. But, no sentence was imposed except imposing fine of Rs.5,000/- which is not commensurate with the nature of injuries and also the period of hospitalisation for 19 days. Imposing fine of Rs.5,000/- is only a peanut when the injured took the treatment in the hospital for a period of 19 days in three different hospitals. Thus, this Court confirmed the judgment of the Trial Court for the offence punishable under Section 324 of IPC. We felt that the fine has to be increased and there is no dispute with regard to the fact that the incident was taken place in view of the civil dispute between the parties and also they are the neighbours. Taking into consideration of this fact, enhancement of fine amount would be an appropriate remedy to the injured. Hence, we answer Point No.1 as negative and Point No.2 as partly in affirmative.

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Point No.3:

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In view of the discussions made above, we pass the

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following:

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ORDER

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The Criminal appeal is allowed in part.

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The judgment of conviction dated 09.06.2017 passed in S.C.No.96/2013 for the offence punishable under Section 324 of IPC is confirmed.

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The judgment of Trial Court with regard to the sentence is concerned, without invoking any sentence of imprisonment, having considered the date of offence, enhanced the fine amount to Rs.50,000/- each payable by accused Nos.1 to 3 and on deposit, the Trial Court is directed to pay the amount of Rs.1,40,000/- to the injured and remaining amount of Rs.10,000/- shall vest with the State.

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Sd/(H.P.SANDESH)

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JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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RHS/SN

M Hariprakash v. State of Karnataka

Case brief

What is this about?

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M Hariprakash v. State of Karnataka

Case brief

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