Lokeshwara Alias Lokesha vs State of Karnataka

N. Ananda, J.—The trial court has held petitioner (hereinafter referred to as ''the accused'') guilty of an offence punishable u/s 326 IPC. The I-appellate court has confirmed the judgment of conviction made by trial court. I have heard Sri. Renukaradhya, learned counsel for accused and Sri. Satish R Girji, learned HCGP for State.

In view of concurrent findings recorded by courts below, it is necessary to refer to a decision of the Supreme Court, reported in Johar and Others Vs. Mangal Prasad and Another, regarding scope of revisional jurisdiction of this court:-

In a decision reported in Johar and Others Vs. Mangal Prasad and Another, , the Supreme Court has held:-

Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be substituted by another possible view.

Sub-section (3) of Section 401 reads as under:-

401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.

Technically, although Ms. Makhija may be correct that the High Court has not converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.

In D. Stephens Vs. Nosibolla, this Court opined:-

The revisional jurisdiction conferred on the High Court u/s 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal u/s 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because, the lower court has taken a wrong view of the law or misappreciated the evidence on record.

The same principle was reiterated in Logendra Nath Jha and Others Vs. Shri Polailal Biswas, stating:

........Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction. This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court''s appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal....."

In the instant case the High Court not only entered into the merit of the matter but also analysed the depositions of all the witnesses examined on behalf of the prosecution. It, in particular, went to the extent of criticizing the testimony of Autopsy Surgeon. It relied upon the evidence of the so called eye witnesses to hold that although appellants herein had inflicted injuries on the head of the deceased, Dr. Y.K. Malaiya, PW-9, deliberately suppressed the same. He was, for all intent and purport, found guilty of the offence u/s 193 and 196 of the Indian Penal Code. The Autopsy Surgeon was not cross-examined by the State. He was not declared hostile. The State did not even prefer any appeal against the judgment.

The learned counsel for accused submits that there is no consistent evidence regarding participation and presence of accused in the assault. The prosecution has relied on interested testimony of PW 1 & PW 3. The medical evidence of PW 9-Dr. B.K. Shivakumar accepted at its face value does not prove that injured (PW 1) had suffered grievous injuries. The courts below have not properly appreciated medical evidence.

The learned HCGP would justify the impugned judgment of conviction.

It is established from evidence on record that PW 1 was living in a portion of house of the elder brother of accused as a lessee and PW 1 had paid premium of Rs. 25,000/-. PW 1 was ready to vacate premises after efflux of agreed period, but elder brother of accused was not ready to repay premium to PW 1. On the other hand, accused was troubling PW 1 and her family members by disconnecting electric power. On 13.05.2004 at about 8 p.m., when PW 1 was near her house, accused came and picked up a quarrel with her and assaulted on the head of PW 1 with an iron rod. PW 3 saved PW 1 from hands of accused. PW 1 was treated in K.R. Hospital at Mysore.

The evidence of injured witness (PW 1) does not suffer from any discrepancy. It is also established from evidence on record that accused had motive to assault PW 1. The evidence of PW 1 finds corroboration from evidence of PW 3, who is an independent witness. The medical evidence supports ocular evidence of PW 1. Therefore, courts below have not committed glaring errors in appreciation of evidence or errors of law, causing manifest injustice to accused. Therefore, concurrent findings recorded by courts below do not call for interference. However, courts below have failed to notice that medical evidence given by PW 9-Dr. B.K. Shivakumar and contents of Ex. P. 5 are not sufficient to prove that PW 1 had suffered ''grievous hurt'' as defined u/s 320 IPC.

From the evidence of PW 9-Dr. B.K. Shivakumar and contents of Ex. P. 5, I find that PW 1 had suffered a cut wound on left temporal parietal region, measuring 1 inch x � inch, thin subdural haematoma on right parietal region, without mass effect and scalp haematoma on left front parietal region. Though above injuries are described as grievous in nature, they do not fall under "grievous hurt" as defined u/s 320 IPC. Therefore, accused is guilty of an offence punishable u/s 324 IPC.

The trial court has convicted accused for offences punishable under sections 341, 504 & 506 IPC.

PW 1 in her evidence has not deposed that accused had wrongfully restrained her. PW 1 has not deposed that accused had intentionally insulted PW 1 to provoke PW 1 with intention or knowledge that such provocation would cause PW 1 to break public peace or commit any other offence. PW 1 has not deposed that accused had threatened PW 1 to cause grievous hurt or death. The trial court convicted accused for offences punishable under sections 341, 504 & 506 IPC on no evidence. The learned Judge of I-appellate court has not noticed this fact. The conviction of accused for aforestated offences and fine imposed thereon cannot be sustained.

The learned counsel for accused submits that accused does not bear any criminal antecedents; incident had occurred at spur of the moment, without any pre-meditation on the part of accused. PW 1 and accused had dispute regarding house, which had been let-out to PW 1 on lease by the elder brother of accused.

The learned HCGP would submit that accused, without any rhyme or reason had assaulted PW 1 and caused injuries to her head. Therefore, there are no reasons to take a lenient view in the matter of sentence.

On hearing learned counsel for parties, I find that accused did not bear any criminal antecedents. The incident of assault had happened in the spur of a moment, without any pre-meditation on the part of accused. The elder brother of accused had let out a portion of his house to PW 1 on lease and there was dispute between parties regarding the same, yet fact remains accused should not have assaulted PW 1, a helpless lady with an iron rod.

Having regard to mitigating and extenuating factors, I deem it proper to sentence accused to undergo simple imprisonment for a period of six months and pay a fine of Rs. 25,000/-, in default to undergo simple imprisonment for a period of three months for an offence punishable u/s 324 IPC. Out of fine amount to be paid by accused, a sum of Rs. 20,000/- shall be paid as compensation to PW 1. In the result, I pass the following:-

ORDER

The revision petition is accepted in part. The accused in C.C. No. 503/2004, on the file of III Additional JMFC at Mysore is acquitted of offences punishable under sections 326, 341, 504 & 506 IPC. The accused is convicted for an offence punishable u/s 324 IPC. The accused shall undergo simple imprisonment for a period of six months and pay fine of Rs. 25,000/-, in default to undergo simple imprisonment for a period of three months for an offence punishable u/s 324 IPC. Out of fine amount to be paid by accused, a sum of Rs. 20,000/- shall be paid as compensation to PW 1-Rukmini.