Sri K R Krishnegowda Vs State by

CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:14.10.14 PASSED BY THE PRL.DIST. AND S.J., MYSORE IN S.C.NO.62/12 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 333, 504 AND 506 OF IPC. AND ETC.

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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 G BASAVARAJA

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NC: 2026:KHC:937 CRL.A No. 949 of 2014

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ORAL JUDGMENT

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The appellant has preferred this appeal against the judgment of conviction and order on sentence dated 14.10.2014 passed in SC.No.62/2012 by the Principal District and Sessions Judge, Mysore (for short 'the trial Court').

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For the sake of convenience, the parties herein are referred to the same rank before the trial Court.

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Brief facts leading to this appeal are that, the K.R.Nagara police have submitted charge sheet against the accused for the offence under sections 333, 504 and 506 of Indian Penal Code. It is alleged by the prosecution that on 05.06.2009 at about 10.30 am, when CW1/PW1 working in Room No.2 (Dressing room), Government Hospital, K.R.Nagara, the accused has prevented PW1 from discharging his duty as a public servant and assaulted him with club on his right forearm causing grievous hurt and assaulted him with hands on his left-

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side chest and also on neck and abused him in filthy language and put threat to his life thereby causing criminal intimidation. Thus, the accused has committed the aforesaid offence.

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After filing of charge sheet, cognizance was taken by the learned Magistrate and case was registered in CC.No.381/2009. Thereafter, case was committed to the Court of Sessions and case was registered in SC.No.62/2012. Accused appeared before the Court and enlarged on bail. On hearing the charges, charges framed against the accused for the commission of offence punishable under sections 333, 504 and 506B of IPC. The same were read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, the prosecution

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has examined seven witnesses as PWs.1 to 7. Eight documents were marked as Exhibits P1 to P8. On closure

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of prosecution side evidence, statement under section 313

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of Cr.P.C was recorded. Accused has totally denied the evidence of prosecution witnesses. However, he did not choose to lead any defence evidence on his behalf. Having

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heard the arguments on both sides, the trial Court has convicted the accused for the commission of offence under sections 333, 504 and 506 of IPC and passed a sentence to undergo rigorous imprisonment for a period of one year and pay fine of Rs.10,000/- for the offence under Section 333 of IPC. Accused is sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.5,000/- for the offence under section 506 of IPC. Further, the accused is sentenced to undergo a simple imprisonment for a period of six months and pay fine of Rs.1,000/- for the offence under Section 504 of IPC. Being aggrieved by the judgment of conviction and order on sentence passed by the trial Court, the appellant has preferred this appeal.

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NC: 2026:KHC:937 CRL.A No. 949 of 2014

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Though the appellant has urged several grounds in

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the memorandum of appeal, the learned counsel for the appellant has submitted that he will restrict his argument only for modification of sentence and he is not going to press on the merits of the case except under section 333 of IPC. Further, he would submit that the accused is aged 77 years and he is suffering from cancer and the accused has already undergone sentence for a period of six months. During the course of prosecution side evidence, NCR challan is marked as Exhibit D1. It is submitted that the entire fine amount is already deposited by the accused. Hence, he sought for modification of sentence passed against the appellant/accused. To substantiate his argument he has produced the certificate issued by the General Hospital, K.R.Nagara, Mysore.

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The learned High Court Government Pleader would

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submit that there are no grounds to interfere with the impugned sentence passed by the trial Court and sought for dismissal of the appeal.

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Having heard the arguments on both sides and on

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perusal of materials, the following points would arise for our consideration:

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(i) Whether the trial Court is justified in convicting the accused for the commission of offence under sections 333, 504 and 506 Indian Penal Code?

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(ii) Whether the appellant is entitled for modification of sentence?

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(iii) What order?

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My answer to the above points are as under:

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(i) Partly Affirmative

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(ii) Partly Affirmative (iii) As per final order.

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Regarding Point No.1:

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I have examined the materials placed before this

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Court. It is the case of the prosecution that on 05.06.2009 at about 10.30 am, when CW1/PW1 working in Room No.2 (Dressing room), Government Hospital, K.R.Nagara, the

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accused has prevented PW1 from discharging his duties as

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a public servant and assaulted him with club on his right forearm causing grievous hurt and assaulted him with hands on his left-side chest and also neck and abused him in filthy language and gave life threat thereby causing criminal intimidation. Thus the accused had committed the aforesaid offences.

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Though the learned counsel for the appellant has not pressed as to the judgment of conviction, this court has examined whether there are sufficient materials to constitute the offence punishable under sections 333, 504 and 506 of IPC.

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To prove the guilt of the accused, the prosecution has examined 7 witnesses as PWs.1 to 7. PW1 said to be the injured and Complainant. He has deposed in his evidence as to the contents of Ex.P1-Complaint.

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PW2-D. K. Shivaraju, who is a 'D' Group Employee in K.R.Nagara Taluk Hospital, is the eye-witness. He has deposed as to the assault made by the accused to PW1.

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PW3-Dr. Madhav.D, Medical Officer has deposed as

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to the examination of the injured and issuance of Wound certificate-Exhibit P3.

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PW4-Dr. Rajesh Kumar M.S, who is one of the eyewitness, has deposed that the accused has assaulted PW1 with club.

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PW5-Nagendra Hegde, Auto driver said to be attester

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to the Mahazar-Ex.P2. He has partly supported to the case of the prosecution.

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PW6-Rachappa, ASI and PW7-P.N. Anil Kumar, have

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deposed as to their respective investigation.

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With regard to the offence under section 333 is concerned, the prosecution has to establish the following ingredients:

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" General Ingredients : To constitute an offence under Section 333, Indian Penal Code, it must be proved: (a) that the accused voluntarily caused grievous hurt; (b) that the person so hurt was a

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public servant and, (c) that such public servant was then discharging his duty or that the accused did so with intent to prevent or deter such public servant or any other public servant from discharging his duty, or the accused did so in consequence of something done or attempted to be done by such public servant in the lawful discharge of his duty."

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In the case on hand, the PW1, PW2, and 4 have

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deposed as to the assault made by this accused with club on PW1 and due to this assault, PW1 has sustained the

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following injuries as shown in Ex.P3 - Wound certificate.

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1. Tenderness and swelling over right hand.

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1. Tenderness over upper chest left side.

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1. Tenderness over neck.

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PW3-Dr. Madhav.D, who has examined the injured

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has deposed that, X-ray done and referred the injured to Orthopedician. Orthopedician opined that there was a fracture of the base of the fifth metacarpal bone of his right hand. On that basis, he has issued the wound certificate as per Exhibit P3. But the Investigating Officer has not collected the X-ray film or radiology report from

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the concerned Radiologist who has examined PW1. The Investigating Officer has not explained anything as to the non-production of X-ray film and Radiology report and also non-examination of the concerned Radiologist / Orthopedician who has given opinion as to the alleged fracture of fifth metacarpal bone.

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In the absence of this material evidence, it is not safe to convict the accused for the offence under Section 333 of IPC. However, considering the evidence placed before this Court, I am of the considered opinion that there are materials to convict the accused for the offence under Section 332 of Indian Penal Code, which is punishable with imprisonment of either description for a term which may extend to 3 years or with fine or with both.

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With regard to the offence under Section 504 and 506 of IPC, considering the evidence placed before the trial Court, the trial Court has properly appreciated the

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evidence on record and convicted the accused for the offence under sections 504 and 506 IPC. Hence, for the aforesaid reasons and discussions, I answer Point No.1 partly in the affirmative.

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Regarding Point No.2:

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With regard to the modification of sentence is concerned, the trial Court has sentenced the accused to undergo rigorous imprisonment for a period of one year and pay fine of Rs.10,000/- for the offence under Section 333 of Indian Penal Code and in default to pay the fine, the accused shall further undergo simple imprisonment for three months. While answering Point No.1, this Court has

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held that the prosecution has failed to prove the guilt of the accused for the offence under Section 333 of IPC. However, prosecution has proved that the accused has committed the offence under Section 332 of IPC, which is punishable with punishable with imprisonment of either description for a term which may extend to 3 years or with fine or with both.

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It is submitted that the accused is now aged 77 years and he is suffering from Cancer. In this regard, the certificate issued by the General Hospital, K.R.Nagara is also produced in which it is certified that the accused Sri Krishnegowda who is now 77 years is suffering from "Primary squamous cell carcinoma of Hypopharynx. Diagnosed on 29.02.2024 on radiotherapy at Narayana Health, Mysore. He is advised for regular follow-up". The injections and other medical prescriptions are also shown in the certificate. The follow-up dates of Narayana Hospital are also shown in the certificate.

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It is submitted by the learned counsel for the appellant that the accused was arrested on 09.06.2009 and he was released on bail on 11.06.2009. Thereafter, after pronouncing the judgment, accused was taken to custody on 14.10.2014 and as per the order of this court dated 23.03.2015, the accused was released on bail.

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Accordingly, accused was in judicial custody for a period of

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5 months 22 days.

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The trial Court has sentenced the accused to undergo simple imprisonment for a period of six months and pay fine of Rs.5,000/- for the offence under section 506 of IPC. Further, the accused is sentenced to undergo a simple imprisonment for a period of six months and pay fine of Rs.1,000/- for the offence under Section 504 of IPC.

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Considering the age and health condition of the accused and also keeping in mind, the quantum of punishment to the offence under Section 332 of IPC, it is just and proper to modify the sentence for a period of 5 months 22 days for the offence under Section 332 of IPC and retain fine amount as it is. Further, the accused is sentenced to undergo simple imprisonment for a period of 3 months each for the offence under sections 504 and 506

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of IPC. Accordingly, I answer Point No.2 partly in the affirmative.

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Regarding Point No.3

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For the aforesaid reasons and discussions, I proceed to pass the following:

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O R D E R

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(i) Appeal is partly allowed.

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(ii) The judgment of conviction dated 14.10.2014 passed in SC.No.62/2012 by the Principal District and Sessions Judge, Mysore, is set aside.

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(iii) The accused is convicted for the offence under section 332 of Indian Penal Code instead of section 333 of Indian Penal Code.

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(iv) The judgment of conviction dated 14.10.2014 passed in SC.No.62/2012 by the Principal District and Sessions Judge, Mysore, for the offence under sections 504 and 506, is confirmed.

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(v) The sentence passed by the trial Court is modified as under:

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a. The accused shall undergo simple imprisonment for a period of 5 months 22 days

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(already undergone by the accused in judicial custody).

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b. The accused is sentenced to undergo simple imprisonment for a period of 3 months each, for the offence under sections 504 and 506 of Indian Penal Code.

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c. The fine imposed by the trial Court is left unaltered. It is submitted that the fine amount is already deposited by the accused.

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All the aforesaid sentences shall run concurrently.

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There shall be a set off under Section 428 of Cr.P.C for the period of detention already undergone by the accused/appellant.

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Sd/(G BASAVARAJA) JUDGE

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DHA List No.: 1 Sl No.: 55

Sri K R Krishnegowda v. State by

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Sri K R Krishnegowda v. State by

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