Rangayya vs State

K.N. Phaneendra, J.—The appellant has called in question the judgment passed in C.C. No. 111/2009 by JMFC, Deodurga.

The appellant was convicted under Section 326 of IPC and sentenced to undergo Simple Imprisonment for two years and to pay fine of Rs. 5,000/- and in default to undergo Simple Imprisonment for six months. The said judgment was confirmed in Criminal Appeal No. 40/2013 by the I-Additional Sessions Judge, Raichur, vide judgment dated 10.04.2014.

The brief factual matrix of the case as could be culled-out from the records are that,-

On 13.07.2008, when the complainant by name Ravi Prakash, son of Rangappa was proceeding along with his friends Mounesh and Ramesh from a Kirani Shop near the bus stand at Deodurga, Accused Nos. 1 to 3 suddenly came there and started quarrelling with the complainant and Accused No. 1 took-out a stone and assaulted on the face and mouth of the complainant, thereby he sustained grievous and simple injuries. This incident was witnessed by the friends of the complainant namely Munesh and Ramesh. They in fact pacified the quarrel and thereafter the complainant was admitted to the hospital, wherein he took treatment. The Deodurga police have investigated the matter and submitted the charge sheet for the offences punishable under Sections 341, 504, 506, 326 r/w. section 34 of IPC. The Trial Court has in fact framed charges for the above said offences and ultimately came to the conclusion that the prosecution was able to prove the guilt of Accused No. 1 beyond reasonable doubt for the offence punishable under Section 326 of IPC and consequently convicted and sentenced Accused No. 1 for the said offences. However, the Trial Court found insufficient materials so as to convict Accused Nos. 2 and 3, as such, it recorded the judgment of acquittal so far as Accused Nos. 2 and 3 are concerned. It appears, the judgment of the Trial Court so far as Accused Nos. 2 and 3 has reached its logical end, as the State Government did not prefer any appeal against the said judgment of acquittal. 4. The prosecution in order to prove the guilt of the accused (petitioner herein), examined seven witnesses as PWs. 1 to 7 and got marked the documents at Exs. P1 to P14 and one material object as MO.1-Stone. The accused was also examined under Section 313 of Cr.P.C., who infact gave no explanation so far as the incident is concerned except denying the allegations against him.

On appreciating the oral and documentary evidence, the Trial Court has recorded the judgment of conviction and sentence.

The appellate Court on re-appreciation of the evidence of PWs. 1 to 3 coupled with the evidence of the Doctor, has come to the conclusion that, on facts the appellant was unable to establish that there was any serious discrepancy or illegality or irregularity committed by the Trial Court in convicting the accused and sentencing him accordingly. Though some discrepancies and contradictions brought to the notice of the appellate Court emerging from the statements of the witnesses, but the appellate Court has considered them as very meager and insignificant. Therefore, on re-evaluation of the factual aspects of the case, the Appellate Court has come to the conclusion that there is no ground to interfere with the judgment of the Trial Court, as such, it confirmed the judgment of conviction and sentence passed by the Trial Court against which order, the petitioner has preferred this revision petition before this Court.

The powers of the revisional Court is very limited. It cannot appreciate the factual aspects of the matter as if an Appellate Court. The Court has to see whether there is any serious illegality or irregularity committed by the Trial Court or the Appellate Court in recording the judgment of conviction and awarding sentence to the accused.

I have carefully perused the judgment of the Trial Court as well as the Appellate Court. The Trial Court in fact, appreciated the evidence of the witnesses in detail considering all the allegations made against the accused and also the grounds urged during the course of cross-examination of the witnesses and after relying upon certain decisions, the Court has come to the conclusion that there is no reason to disbelieve the evidence of PW.1, who is the injured eye-witness. The Appellate Court has also even after re-evaluation of the evidence, found that his evidence is trust-worthy for acceptance. Even on cursory reading of the evidence of the witnesses, it is clear from the evidence of PW. 1 that on the date of the incident, he was proceeding along with his friends near new bus stand at Deodurg and when they reached near Bapuji Lane near Ravi Cassette Shop, all the accused persons who were sitting there, suddenly raised voice against PW.1-Complainant; Accused Nos. 1 and 2 started talking with the complainant indecently; when the injured told that they must give respect to the seniors, then immediately Accused No. 1 took-out a stone and assaulted him on his mouth and face and caused severe injuries. Though he has been subjected to a detailed and lengthy cross-examination, but so far as receiving the injuries by PW.1 has not been denied. On the other hand, it is suggested that the injured must have sustained injury during a fall from the vehicle. Even such suggestion has been made to the Doctor, which clearly goes to show that sustaining of the injury by the complainant has not been denied. Some contradictions have been elicited with regard to the size of the stone used; PW. 1 going to the hospital and taking treatment, Even though, some minor contradictions are there, but, in my opinion, the substratum or core of the prosecution case has not been disturbed. During the course of cross-examination, PW.2-Mounesh and PW.3-Ramesh who are the friends of PW. 1 have also deposed with regard to the incident, sustaining of the injury by the complainant. Even, as I have said, during the course of cross-examination some minor contradictions were elicited, but they are not sufficient to totally disprove the case of the prosecution. The Doctor, who was examined, also deposed with regard to the injuries sustained by the complainant. Therefore, looking to the above facts and circumstances, there is no reason to disbelieve the version of the injured about the incident. The petitioner is not able to show any satisfactory material in order to totally discard the evidence of PWs. 1 to 3. Therefore, I do not find any strong reasons to interfere with the judgment of the Trial Court and Appellate Court so far as conviction recorded against the petitioner.

Learned counsel for the petitioner has strenuously contended before this Court that, though the conviction of the revision petitioner recorded by the Trial Court is based on the evidence on record, but the Trial Court as well as the Appellate Court have directed themselves in wrong path in convicting the accused for the offence punishable under Section 326 of IPC rather the accused could have been convicted him for the offence punishable under Section 324 of IPC only. He further contended that, if the evidence of the Doctor and the evidence of PW. 1 is read in its proper perspective, it will not be sufficient to draw a definite inference that the prosecution has proved beyond reasonable doubt that the offence under Section 326 IPC has been committed by the petitioner. Therefore, he requests the Court to consider this particular aspect in order to reduce the sentence from Section 326 of IPC to Section 324 of IPC.

PW.6, the Doctor has unequivocally stated with regard to the injuries sustained by him. The Doctor-PW.6, in his evidence has categorically stated that he examined PW.1 on 13.07.2008 and found that he has suffered the following injuries on his person:-

i) Contusion on the left side of the Cheek- Maxillary region of size 3" x 2". Swollen, face disfigured, movement restricted and painful; speech restricted and altered. 1 fracture of maxilla at incisors .

ii) Lacerated wound on the temporo - frontal region of size 3" x 0.5", muscle deep; Dark red coloured, painful and tender.

PW.6, the Doctor referred to Ex.P3-Wound Certificate and stated that he has issued Ex.P3. Ex. P3-wound certificate discloses that PW.1 was referred to District Hospital, Raichur, for further treatment. X-ray report was received on 20.10.2008 from Dr. Tirumala Rao, MDS, Assistant Professor and on its reference he found that the patient was forced to take x-ray privately outside, which revealed fracture of left upper maxillary ; central incisors and lateral incisor teeth. Ultimately, PW.6 opined that Injury No. 1 was grievous and Injury No. 2 was simple in nature.

Though Ex.P3 discloses that there is a fracture, but as rightly contended by the learned counsel in order to substantiate this fracture, x-ray report has not been produced. Even the x-ray number has not been mentioned in Ex. P3, though it is stated that the x-ray was taken in a private hospital. The Doctor during the course of cross-examination has stated that the x-ray was given to the Investigating Officer through the police constable, but no explanation is offered by the Investigating Officer as to why the x-ray handed over to him, has not been produced before the court. Further, added to that, though PW.1 has stated in his evidence that some of his teeth were twisted and he has lost some teethes, etc. but, PW.6-Doctor has stated that he has not suffered any injury inside the mouth and no tooth were broken. Therefore, there is some discrepancy with regard to explaining the injury sustained by PW.1 as narrated by PW.6-Doctor in his evidence. In this background, it is worth to note a decision of the Division Bench of this court cited by the learned counsel in the case of in State Vs. Sheenappa Gowda and Others, , wherein this Court, while dealing with the same set of facts at Paras 10 and 11 has narrated that non-production of the x-ray report before the court is fatal to the prosecution and if it is not produced, it cannot be said that the prosecution has proved the case of fracture or grievous injury beyond all reasonable doubt. Giving such benefit, the court has reduced the sentence from 326 to 324 of IPC. It is worth to reiterate the observations made by this court at paras-10 and 11 of the said decision, which reads as under:-

PW.1 Dr. Sandeep, who has examined PWs.3 and 4 has stated about the injuries sustained by them and has further deposed that he has issued wound certificates as per Ex.P1 in respect of PW.3 and Ex.P2 in respect of PW.4. Injuries sustained by PW.3 are simple in nature according to the evidence of PW.1. However, PW.1 has stated in his deposition that PW.4-Shsheela has sustained the following injuries:-

Lacerated wound 1/2 inch x 1 1/2 inch x 1/2 inch over the forehead;

Lacerated wound over the little finger left side at the proximal LP. Found measuring 3/4 inch x 1/2 inch x 1/2 inch with bleeding on the dorsal aspect with fracture of middle phalanx.

Abrasion over the middle of right thigh anterior aspect.

Abrasion over the left chin.

He has further deposed that Injury No. 2 as grievous in nature and the other injuries were simple in nature.

Therefore, the question for determination is limited to find-out whether the said Injury No. 2 is proved to be a grievous injury sustained by PW.4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always rests on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Indian Penal Code is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW.4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW.1 would only show that there was injury as described in the wound certificate-Ex. P2. When PW.1 suspected such fracture, he ought to have referred the injured-PWA for taking x-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled that unless the prosecution produces the x-ray for confirmation of fracture opined by the Doctor on medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW.1, the learned counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, the same would not dispense with the production of the x-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW. 1 Doctor only on clinical examination of PW.4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the Accused Nos. 1 to 3 and 5 have committed the offence punishable under Section 326 of IPC and the offence committed by them falls within the ambit of Section 324 of IPC, is justified."

As the facts and circumstances of this are similar to the case of the said decision, the same yardstick has to be applied to the case on hand. Though the Doctor has stated that, through the private concern the x-ray was taken and on the basis of which, he issued Ex.P3-wound certificate, but said x-ray has not been produced before this court. In view of the discrepancy in explaining the injuries sustained by PW. 1 during the course of his cross-examination, in my opinion, the benefit of such doubt has to be extended in favour of the accused (petitioner herein). In this case also, the x-ray report is not available before the court though the patient was referred to take-out x-ray. In the absence of x-ray report before the court and in the absence of any explanation by the Investigating Officer as to why the x-ray which was given to him by the Doctor has not been produced before the court and such benefit of discrepancy or doubt has to be given in favour of the accused.

In the above said circumstances, in this case also, I am of the opinion that the prosecution has failed to establish the case against the petitioner beyond reasonable doubt, that he has committed the offence under Section 326 of IPC. On the other hand, it can be safely held that the prosecution, beyond reasonable doubt, proved against the accused that, he has committed the offence under Section 324 of IPC.

Now coming to the sentence passed against the accused by the trial Court, the trial Court has awarded the sentence of fine of Rs. 5,000/- and imposed the sentence of imprisonment for two years against the petitioner/accused. The petitioner belonging to Harijan Community. Both the victim as well as the petitioner are belonged to Deodurga Village in Raichur District. The statements of the accused show that he is a student, aged about 19 years as on the date of committing offence. The offence was taken place in the year 2009. Already nearly seven years have been elapsed from the date of the offence.

Looking to the above facts and circumstances of the case and the nature of injuries sustained by PW.1-complainant, and also looking to the background of the accused, in my opinion, sentencing the accused to undergo imprisonment may not be proper at this stage. However, looking to the gravity of the offences alleged, the fine imposed against the accused by the trial Court has to be enhanced.

As PW.1 has suffered several injuries to his face, he suffered disfigurement to his face and he has been admitted to the hospital for treatment. Therefore, considering all these facts including the expenditure borne by the petitioner herein towards treatment, I am of the opinion that, if the fine imposed by the trial Court is enhanced to Rs. 25,000/-, it would meet the ends of justice. Therefore, instead of sentencing the accused for imprisonment, it is just and necessary to pass an order imposing sentence of fine of Rs. 25,000/- against the accused. Accordingly, the following order is passed:-

The judgment of conviction and sentence passed by the trial Court, confirmed by the Appellate Court is hereby modified. The Revision Petitioner is convicted for the offence punishable under Section 324 of IPC and sentenced to pay fine of Rs. 25,000/- in default to payment of fine, he shall undergo imprisonment for a period of six months.

If he has already deposited the fine amount of Rs. 5,000/- as ordered by the trial Court, he is directed to deposit the remaining fine amount of Rs. 20,000/- within one month from the date of receipt of a copy of this order.

Out of the said amount, a sum of Rs. 5,000/- is ordered to be paid to the State and the remaining amount of Rs. 20,000/- shall be paid to PW.1 as compensation.

Accordingly, this Revision petition is disposed of.