H.P. Krishna vs State of Karnataka

Mohan M. Shantana Goudar, J.—The judgment and order dated 21.3.2009 passed by the Principal Sessions Court, Hassan, in SC. No. 195/2006, is called in question in this appeal by the convicted accused. By the impugned judgment, the appellant-Krishna (original accused No. 1) is convicted for the offences punishable under Sections 323 and 324 of IPC and sentenced to undergo imprisonment for three years.

Case of the prosecution in brief is that at about 8.30 p.m. on 22.12.2004, when PW. 1 Jayalakshmi was standing near bore-well situated at Bus Stand of Hiredanahally Village, Accused No. 1 came to the said spot and asked PW. 1 as to why she performed the marriage of her daughter Damayanthi @ Chitra with a JCB Cleaner by name Puttanna, without informing him (accused No. 1); so saying accused No. 1 picked up a stone which was lying on the spot and assaulted on the left side of head of PW. 1; consequently, PW. 1 sustained certain bleeding injury; at that point of time accused No. 2 came to the spot and assaulted PW. 1-Jayalakshmi with her hands; PWs. 5 and 2. came and pacified the quarrel; thereafter, PW. 1-Jayalakshmi was shifted to Sakaleshpura Government Hospital wherein she took treatment. The first information was lodged by PW. 1-injured at about 12.00 midnight intervening between 22.12.2004 and 23.12.2004 in C.F. Hospital, Sakaleshpura before the Head Constable (PW. 6). The said Head Constable recorded the first information provided by PW. 1 and registered Crime No. 172/2004 of Sakaleshpura Police Station. Ultimately, the charge sheet came to be fled against both the accused for the offences punishable under Sections 323 and 324 of IPC.

In order to prove its case, the prosecution in all has examined 9 witnesses and marked 7 Exhibits and one Material Object. On behalf of the defence, no witness is examined. The trial Court on evaluation of the material on record, acquitted accused No. 2 and convicted accused No. 1 (appellant herein) for both the offences with which he was charged.

Sri R.V. Anand, learned counsel appearing for the appellant taking us through the material on record submits that the Court below is not justified in convicting accused No. 1-appellant herein for the offence punishable u/s 323 of IPC; the offence is trivial in nature, inasmuch as the same has taken place during altercation of family members; PW. 1-injured is close relative of accused No. 1; since accused No. 1 had performed the marriage of Damayanthi @ Chitra, with Mr. Puttanna, the PW. 1 questioned the accused No. 1 in that regard and in a heat of passion, the incident has taken place.

Per contra, Sri Visweswariah, learned Govt. Pleader argues in support of the judgment of the Court below.

PW. 1 is the injured eye witness; PW. 5 is the husband of PW. 1. He is the eye witness to the incident; Though PWs.?. and 8 were the eye witness to the incident, they have not supported the case of prosecution and they have turned hostile; PWs. 3 and 4 are the witness for scene of offence mahazar under which stone MO. No. 1 is seized from the spot. Both of them have turned hostile; PW. 6 is the Head Constable who has recorded the first information provided by PW. 1 and registered the crime; PW. 9 is the doctor who treated PW. 1 and issued wound certificate as per Ex. P7

Thus, case of the prosecution mainly rests on the evidence of PWs. 1 and 5 and the evidence of PW. 9-the doctor who treated PW. 1. On going through the material on record, the trial Court is justified in believing the version of PWs. 1 and 5 for coming to the conclusion. As aforementioned, PW. 1 is injured eye witness. She has deposed on par with her first information at Ex. P1. Even in the first information, she has stated that accused No. 1 assaulted her with stone on the left side of her head, consequent upon which, she sustained certain injury. Her evidence is fully supported by the evidence of PW. 5 who came to the spot at the time of incident and pacified the quarrel. He has also deposed about the complicity of accused No. 1 in the crime. The evidence of PWs. 1 and 5 is fully supported by the evidence of the doctor-PW. 9 who treated PW. 1 immediately after the incident. Even the history recorded by PW. 9 discloses that the injury was sustained as a result of assault by Krishna (accused No. 1) at about 8.30 p.m. near her residence. The doctor has also deposed that there was cut wound over the left side of scalp. The injury was simple in nature. Ex. P7 is the wound certificate. In the cross-examination, PW. 9 has admitted that if a person falls on a sharp edged stone which come into contact on the parietal region, such injury is possible.

Be that as it may, looking to the material on record, it is clear that it was accused No. 1 who assaulted PW. 1 with the stone-MO. No. 1, consequent upon which PW. 1 sustained one simple injury.

It is not in dispute that accused No. 1 and PW. 1-injured are close relatives. The incident has taken place at the spur of a moment. Accused No. 1 had no intention to commit the crime. He took a stone which was lying on the spot and assaulted PW. 1 with it. Looking to the aforementioned material on record, we find that though the trial Court is justified in convicting the appellant herein for the offence punishable u/s 324 of IPC, is not justified in sentencing of imprisonment for three years. The incident has occurred during verbal altercation between the family members. The offence is very minor in nature. The injury sustained by the victim measures 1/2 cm x 1 cm, that too superficial in nature. Accused No. 1 had already undergone imprisonment of about 4 days during the course of investigation. Looking to the background from which accused No. 1 as well as PW. 1 come from, in our considered opinion, interest of justice will be met if the imprisonment suffered by accused No. 1 itself is held to be sufficient as punishment, under the facts and circumstances of the case.

The trial Court is also not justified in sentencing accused No. 1 for the offence punishable u/s 323 of IPC, inasmuch as the same merges with the offence punishable u/s 324 of IPC.

Accordingly, the following order is made:-

i) The judgment and order of conviction dated 21.3.2009, passed by the Sessions Court, Hassan, in SC. No. 195/2006 convicting accused No. 1-appellant herein for the offence punishable u/s 324 stands confirmed.

ii) However, the sentence of imprisonment is reduced to the sentence already undergone by the appellant Hence, he need not be taken into custody once again.

iii) The appellant herein is sentenced to pay a fine of Rs. 6,000/- (Rupees six thousand only). Since the amount of Rs. 1,000/- imposed by the trial Court is already said to have been deposited, the balance of fine amount of Rs. 5,000/- shall be deposited within three months from today. In default of payment of fine amount, the appellant herein shall undergo imprisonment for two months.

iv) In case of deposit of balance of fine amount of Rs. 5,000/- within three months from today, the entire fine amount of Rs. 6,000/- shall be paid to PW. 1-Jayalakshmi, as compensation.

Appeal is allowed-in-part accordingly.

Office is directed to return the LCRs. to the Court below forthwith.