Devaraju and Ravi vs State

A.N. Venugopala Gowda

Petitioners were convicted by the Chief 3udicial Magistrate, Holenarasipura, in C.C. No.94/2008, for the offences punishable under Ss. 324 & 326 read with S.34 of IPC. The allegation was that, on 21.07.2008, at about 9.30 p.m., accused went to the house of CWs 1 and 2 with a mala fide intention and picked up quarrel with CWs 1 and 2, who were sitting in front of their house, in a matter relating to allowing of cattle to graze jower crop and that accused No.1, assaulted CW-1 with a club on his right shoulder and accused No. 2 assaulted CW-2 with a knife en the below portion of right eye and thereby caused simple injuries. Further, accused No.2 assaulted CW-1 with knife on right thumb and thereby caused grievous injuries, which are offences punishable under Ss. 324, 326 and 34 IPC. After trial, the petitioners were sentenced to undergo imprisonment for a period of two years and pay fine of 2,000/- each, in default, to undergo S.I. for 3 months, for the offence under S.326 read with S. 34 IFC and were further sentenced to pay fine of 500/- each, for the offence under S.324 read with S. 34 IPC, in defult, sentenced to undergo S.I. for a period of one month.

Said order of conviction and sentence was challenged by the petitioners before the Sessions Court, Hassan and the same was assigned to the Court of Fast Track and Addl. Sessions Judge at Holenarasipur and the learned Judge, compared the conviction and sentence by dismissing Crl. A. No.59/2009, by a Judgment dated 22.12.2009.

Aggrieved by the same, petitioners have filed this criminal revision petition. The conviction and sentence of the petitioners for the offences under Ss. 324, 326 read with S.34 IPC is challenged in this petition.

Heard Sri M.K. Sandeep, learned advocate learned High Court Government Pleader for the respondent and perused the record.

Sri Sandeep contended that the injuries sustained by PWs 1 and 2 being simple in nature, the conviction of the petitioners for the offence under S. 326 read with S. 34 IPC is not sustainable in law. Learned advocate drew my attention to the wound certificates Exs.P3 & P5 prepared by PW-6. He contended that the prosecution has failed to prove the case under S. 326 read with S. 34 IPC beyond all reasonable doubts and the findings recorded by the Courts below in that regard are perverse and illegal.

Sri Vijayakumar Majage, learned Government Pleader, on the other hand, supported the view taken by the Courts below and submitted that there being concurrent finding by the Courts below, no interference in the matter is warranted.

CW-1 / PW-1 Yogesh is the complainant. Ex. P1 is the complaint. His wound certificate is Ex. P3 and X-ray is Ex.P4. CW-2 / PW-2 Kalammo was also injured and her wound certificate is Ex. P5. PW-3, the elder brother of PW-1 and son of PW-2 is an eye-witness to the incident. PWs 4 and 5, the panch witnesses to Ex.P2, spot mahazar, have not supported the prosecution case. PW-6 is the doctor who treated PWs 1 and 2. Ex.P6 is the Government hospital memo. PWs 7 & 8 are the I. Os. Ex.P7 is the FIR. PW.-8 filed the charge-sheet.

PW-6 Dr. Gowtham is the medical officer who examined PWs 1 and 2, on 21.07.2008 at about 9.30 p.m. PW-6 has stated that on examination of PW-1, he noticed laceration wound below the right thumb. There was twist on the right hand and tenderness on the right shoulder. He took X-ray of the right thumb and found fracture and deposed that he has given the wound certificate Ex.P3. He has opined that, injury Nos. 1 & 3 were simple in nature and injury No. 2 was grievous in nature. PW-6, on examining PW-2 has found a laceration measuring 1/7" x 1/4" below her right eye and suspected laceration in the right eye and noticed tenderness around the right eye. He referred PW-2 to an eye specialist. He has opined that the injury sustained by PW-2 is sirnpie in nature. Ex.P5 is the wound certificate issued by him in respect of PW-2. PW-6 has admitted that the injuries sustained by PWs 1 and 2 could be caused by fall also.

Learned Magistrate without noticing the fact that, Ws 4 & 5 have not supported the prosecution case and that seizure of MOs. 1 and 2 has not been proved, has erroneously opined that the unimpeached case of the prosecution is not taken away. Learned Sessions Judge, without noticing the nature of injuries sustained and without correctly examining the contention of the defence, has opined that the matter is a fit case to convict the accused. Courts below have not examined as to, whether the ingredients of the offence under S. 326 read with S. 34 IPC has been established by the prosecution.

There are three injuries on the body of PW-1. Admittedly, injury Nos. 1 & 3 were simple in nature. Dispute is with regard to injury No.2. Description of injury No.2 is as follows:

Deformity (R) thumb;

X-ray showed Benett''s (R) thumb."

PW-6 in his cross-examination has admitted that the injury could be causes by a fall also.

Injuries sustained by PW-2 as is evident from Ex.P5, indisputably, are olrnple. in nature.

By going through the description of the wounds in the wound certificates and the evidence of PW-6, who has admitted that injury No.2 could be sustained by fall also and in view of seizure of M.Os.1 & 2 having not been proved beyond reasonable doubts, since PWs 4 and 5 have not supported the prosecution case, in my opinion, the prosecution has failed to establish beyond all reasonable doubts, the commission of an offence under S. 326 read with S. 34 IPC. The offence committed by the petitioners could only be under S. 324 read with S. 34 IPC. Thus, the conviction of the petitioners for the offence under S. 326 read with S. 34 IPC is illegal.

In the result, the petition is allowed in pert. The conviction of the petitioners for the offence under S. 326 IPC and the consequential sentence imposed on them is set aside. The petitioners stand acquitted of the said charge.

However, the conviction of the petitioners for the offence under S. 324 read with S. 34 IPC and the sentence imposed on them is confirmed. The petitioners are directed to pay compensation of 15,000/- each, to the victims i PWs 1 & 2. The compensation amount be deposited in the Trial Court, within a period of one month. If the compensation amount is not deposited within the time allowed, petitioners shall undergo S.I. for a period of one month.