Ningaiah vs State of Karnataka

K.N. Keshavanarayana

This appeal by accused No. 1 in S.C. No. 241/1997 on the file of the Fast Track Court-IV at Mysore is directed against the Judgment of conviction and order of sentence dated 8.4.2005 convicting the appellant-accused No. 1 for the offence punishable u/s 324 of IPC and sentencing him to undergo simple imprisonment tor a period of one year and to pay a fine of Rs. 1000/-.

The appellant along with three other accused persons was charge sheeted by the Talkad Police for the offences punishable tinder Sections 341, 326 and 307 of IPC read with Section 34 of IPC inter alia alleging that at about 6.30 p.m. on 17.8.97, near the petty shop of one Basavanaika. situated at Kalabasavanahundi village, accused persons by sharing common intention, wrongfully restrained PW2-Basavanaika and with an intention to commit murder. Accused No. 1 assaulted PW2 with a dangerous weapon namely knife on the vital part of the body causing him grievous hurt.

According to the prosecution, ar the time of incident, PW4-Gowramma wife of PW2, PW5-Basavaraju, PW6-Basavanaika-owner of the shop and PW8-Mahadevama - sister of PW2 came there and saw PW2 lying unconscious. Thereafter, PW4 took her injured husband to the police Station at Talakad from where the injured was shifted to Government Hospital at Talakad. PW1 -Dr.Rajendra Prasad examined and treated PW2 in the Hospital. PW7-Head Constable who followed the injured to the Hospital recorded the statement of PW2 in the Hospital at Talkad as per Ex.P5. On return to the Police Station, on the basis of Ex.P5, he registered case in Cr.No. 69/97 and submitted the FIR to the jurisdictional Magistrate. As per the advice of PW1. the injured was shifted to K.R. Hospital, Mysore for further treatment where he was admitted as in-patient. During treatment, X-rays were Taken and it revealed that PW2 has suffered displaced fracture of acromion process of left scapula and undisplaced fracture of left iliac bone. PW9-Siddappa PSI, during investigation. apprehended the accused persons, conducted spot mahazar. recovered the knife used for the commission of the offence and after completing the investigation, laid the charge sheet.

After committal of the ease, accused persons appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them. After the prosecution closed its side of evidence, the accused persons were examined u/s 313 of Cr.P.C, wherein they denied all the incriminating circumstances. However, they did not chose to lead any evidence. The defence of the accused was one of total denial and that of false implication. Learned Sessions Judge after hearing both sides, by judgment under appeal held that the prosecution has proved the incident of assault by accused No. 1 on PW2 at about 6.30 p.m. on 17.8.97 in front of the petty shop in Kalabasavanahundi village. In that view of the matter, the learned Sessions Judge held accused No. 1 guilty of the offence punishable u/s 324 of IPC. However, the learned Sessions Judge held that the prosecution has failed to prove the charge levelled against accused Nos. 2 to 4. In that view of the matter, accused Nos. 2 to 4 were acquitted whereas accused No. 1 was convicted for the offence Dunishable u/s 324 of IPC. After hearing the learned counsel for accused No. 1, learned Sessions Judge proceeded to pass orders regarding sentence sentencing accused No. 1 as noticed supra. Aggrieved by the aforesaid judgment of conviction and order of sentence, accused No. 1 is in appeal before this Court.

I have heard learned counsel appearing for the appellant and learned Government Pleader. Perused the records and judgment of the trial Court.

The submission of the learned counsel for the appellant is, the judgment suffers from perversity and illegality as the trial Court has failed to appreciate properly the evidence on record, therefore, the judgment of conviction against accused No. 1 is liable to be set aside. It is his further submission, if for any reason, this Court were to affirm the judgment of conviction, the order of sentence passed by the trial Court is harsh and in view of the fact that accused No. 1 was in custody for nearly about five months, during the trial of the case, the trial Court ought to have sentenced accused No. 1 only to the period already spent in custody, therefore, the sentence of imprisonment ordered by the trial Court warrants interference and modification.

I have bestowed my serious consideration to the submissions made by the learned counsel for the appellant.

As per the evidence of PW1, at 8.25 p.m. on 17.8.97 PW2 was brought to PHC with PC:1736 of Talkad police Station with the history of assault by Ningaiah, Venkatakshmi. Chikkamadamma and others with knife. On examination. PW1 noticed the following injuries:

A horizontal incised wound over lateral side of left side of hip, just above anterior superior (sic) spine measuring 8 cm x 2 cm x 1.5 cm and bleeding was present and noticed gaping is more in the center of the wound.

A vertical incised wound over the back of left shoulder starting from just below acromion process of left scapula measuring 8 cm x 2.5 cm x 2 cm. and bleeding was present and noticed more gaping in the cemer. Movement of the left shoulder joint was restricted.

Oblique superficial incised wound measuring 5 cm x 3 mm x 3 mm at the lateral side of left 12th rib.

Crescentic incised wound with concavity upwards measuring 4 cm x 4 mm x 4 mm over the left parieto occipital region of the scalp.

According to PW1, he referred the patient to the Orthopedic Surgeon. K.R. Hospital, Mysore and later received report from the K.R. Hospital informing that the patient was admitted there on 18.8.97 and the X rays taken revealed displaced fracture of acromion process of left scapula and undisplaced fracture of left (sic) bone, and he issued wound certificate Ex. P1 and Ex. P2-accidcnt register wherein necessary entries have been made at Ex. P2a. According to him, injuries-1 and 2 are grievous in nature and other injuries are simple in nature. Though this witness has been cross-examined by the learned counsel for the accused, nothing is suggested to him that PW2 had not sustained any injuries. There is no challenge to the evidence of PW1 about the presence of the injuries on PW2. Of course, it is contended by the learned counsel for the appellant thai the doctor who treated PW2 in K.R. Hospital. Mysore, has not been examined nor X-ray film with radiologist report have been produced to prove the fracture suffered by PW2. In the light of the evidence of PW1 about the report received by him from K.R. Hospital and in the absence of any challenge in the cross-examination to that part of the evidence, the non-examination of the doctor who treated PW2 in K.R.Hospital and non-production of X-ray film with radiologist report does not in any way discredit the evidence of PW1. Having regard to the evidence of PW1, the trial Court is justified in holding that the prosecution has proved the presence of the grievous hurt suffered by PW2.

With regard to the incident, the evidence on record reveals that between 9 p.m. and 10.00 p.m. on 17.8.97, the statement of PW2 was recorded by the PSI, Talakad Police station and based on the same, case came to be registered and investigation was taken up. Thus, within a reasonable time, the complaint has come into existence. There is no delay in lodging the FIR. The complainant in his complaint has clearly stated the details of the incident and assault on him. PW2 has also stated that the incident occurred when the complainant questioned accused No. 1 as to why he quarreled with his brother when his brother drove the bullock cart on the land of accused No. 1. PW2, in his oral evidence, has reiterated his statement made in complaint-Ex. P5. Though PW2 has been cross-examined, nothing is elicited from him to discard his testimony. In the cross-examination of PW2, it is not suggested that he did not sustain any injury nor he sustained injuries by any other means. The evidence of PWs. 4, 6 and 8 corroborates the testimony of PW2 with regard to the incident. The evidence of PWs.4, 6 and 8 establishes that accused No. 1 was holding a knife and he inflicted injury on PW2. There is no serious cross-examination to these witnesses. Therefore, the Court below has rightly accepted the evidence of these witnesses to hold tnat the prosecution has proved beyond reasonable doubt the incident of assault by accused No. 1 on PW2 with the knife, which resulted in grievous hurt to PW2. Having regard to the facts and circumstances of the case and evidence on record. I find no perversity in the judgment of the trial Court holding !hat accused No. 1 is guilty of the offence punishable u/s 324 of IPC. The findings recorded by the trial Court are sound and based on the evidence on record. Therefore, I find no good ground to interfere with the judgment of conviction recorded by the trial Court.

As noticed supra, the trial Court after convicting accused No. 1 for the offence punishable u/s 324 of IPC has sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1,000/-.

The fine amount of Rs. 1,000/- as indicated in the records, has been deposited by accused No. 1. From the record, it is noticed that accused No. 1 was apprehended on 19.8.97 and on the same day he was remanded to the judicial custody and he was released on bail on 6.1.98 by the Court of Sessions. Thus, accused No. 1 was injudicial custody for a period of four months 25 days.

It is submitted by the learned counsel for the appellant that the appellant and accused No. l are cousin brothers, and they are now in cordial terms and there is no untoward incident for the past 141/2 years after the incident in question. Therefore, he contended that, if at this length of time, accused No. 1 is again ordered to undergo further imprisonment, it may result in disharmony. Regard being had to the facts and circumstances of the case, I find force in the above submisions. Therefore, I am of the considered opinion that the sentence of imprisonment ordered by the trial Court appears to be harsh and it requires to be modified. Accordingly, the appeal is allowed in part The judgment. of conviction convicting the appellant/accused No. 1 for the offence punishable u/s 324 of IPC is hereby confirmed. However, the order of sentence passed by the trial Court is modified. The appellant-accused is sentenced to the period of custody already undergone during the trial of the case.