Sri Keshava K. vs The State of Karnataka

H.N. Nagamohan Das, J.—This revision petition is directed against the judgment of conviction and sentence dated 27.06.2005 in C.C. No. 10/2005 passed by the Civil Judge (Jr. Dn) and JMFC at Sullia and confirmed by the judgment dated 17.11.2011 in Crl.A. No. 196/2005 passed by the Addl. Sessions Judge, Fast Track Court, Puttur convicting and sentencing the petitioner for the offences punishable under Sections 324 and 326 IPC. On 3.8.2004 PW. 1 demanded repayment of loan amount from accused no. 2. At that time, there was a quarrel between PW. 1 and accused-2. All of a sudden accused no. 1 hit PW. 1 with a torch on the head causing injury and on the face causing grievous hurt resulting in fall of two tooth. Further it is alleged that accused 2 and 3 restrained PW. 1. Consequently the jurisdictional police registered a case against accused 1 to 3 for the offences punishable under Sections 341, 504, 326, 324 r/w 34 IPC. After investigation charge sheet was filed for the above offences. The trial Court framed charges. The prosecution examined five witnesses as PW. 1 to PW. 5 and got marked Ex. P1 to P7 and M.O.1 to M.O.4. After hearing arguments, the trial Court framed the following points for its consideration:

i) Whether the Prosecution proves beyond all reasonable doubt that on 02.08.2004 at about 08.45 p.m. near Kallugundi in Sampaje near the bridge all the accused assembled with common intention to wrongfully restrain, insult and cause hurt to P.W.1 N. Usman and in furtherance of the common intention the accused restrained PW. 1 and thereby committed an offence punishable u/s 341 read with 34 IPC?

ii) Whether the Prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, in furtherance of the aforesaid common intention accused no. 2 and 3 abused C.W.1 by using words

and gave provocation to P.W.1 intending or knowing it to be likely that such provocation will cause P.W.1 to break public peace or to commit any other offences and thereby accused have committed an offence punishable u/s 504 read with - 34 IPC?

iii) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place and in furtherance of the aforesaid common intention the accused no. 1 voluntarily caused grievous hurt to PW. 1 to his mouth by a torch, as a result of which, the two upper tooth of PW. 1 were dislocated, the torch light if used as a weapon of offence is likely to cause death and thereby the accused have committed the offence punishable u/s 326 read with 34 IPC?

iv) Whether the prosecution proves beyond all reasonable doubt that on that on the aforesaid date, time and place and in furtherance of the common intention, the accused no. 1 voluntarily caused hurt to P.W.1 by a torch on his head, the torch if used as a weapon of offence, is likely to cause death and thereby the accused have committed the offence punishable u/s 3234 read with 34 IPC?

v) What order?

On appreciation of evidence on record, the trial Court held that the prosecution has failed to prove the common intention of all the accused in restraining PW. 1. Further it is held that prosecution has failed to prove that accused 2 and 3 committed an offence punishable under Sections 341 and 504 IPC. But the trial Court held that prosecution has proved and established the offence under Sections 324 and 326 IPC. Consequently, under the impugned judgment the trial Court convicted accused 1 and 2 and sentenced to pay fine of Rs. 2000/- for the offences punishable u/s 324 IPC and in default to undergo simple imprisonment for a term of 20 days. Accused No. 3 was convicted and sentenced to pay fine of Rs. 1000/- for the offences punishable u/s 324 and in default to undergo simple imprisonment for a term of 10 days. Further accused 1 and 2 are convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 1000/- for the offences punishable u/s 326 IPC. Accused no. 3 is convicted and sentenced to undergo simple imprisonment for a term of six months and to pay a fine of Rs. 1000/- for the offences punishable u/s 326 IPC. Aggrieved by this judgment of conviction and sentence, accused 1 and 3 filed appeal in Crl.A. No. 196/2005 before the Addl. Sessions Judge, Fast Track Court, Putur. Accused no. 2 had undergone the sentence and he has not filed any appeal. The lower appellate Court on reappreciation of the entire material on record held that the conviction and sentence against accused no. 3 as bad in law and consequently he has been acquitted. But the conviction and sentence of the trial Court in so far as accused no. 1 is concerned was affirmed by the lower appellate Court under the impugned judgment. Hence this revision petition.

Heard arguments on both the side and perused the entire petition papers.

The only point that arise for my consideration in this revision petition is whether the conviction and sentence of accused no. 1 for the offences punishable u/s 324 and 326 IPC is in accordance with law?

Both the courts below noticed that PW. 1, the complainant is the sole eye witness to the incident. In the incident on 2.8.2004 PW. 1, sustained injury and grievous hurt. This is supported by the wound certificate,. Ex. P7 and the evidence of PW. 5, Doctor. According to the prosecution these two injuries are caused by a torch, M.O.2. M.O.1 is the tooth belonging to PW. 1. This material on record discloses that on the date of the incident, PW. 1 sustained injury and grievous hurt. According to the prosecution these injuries are caused by accused no. 1. Though there are no independent eye witnesses to the incident the testimony of PW. 1 is corroborated by the medical evidence and the MO seized as per Ex. M1 and M2. On appreciation of this material on record both the courts below concurrently held that the charge leveled against accused no. 1 as proved for the offences punishable under Sections 324 and 326 IPC.

Learned counsel for the petitioner contends that PW. 2 in his evidence stated that after hearing cry of PW. 1 he went to the scene of offence and noticed that PW. 1 was in unconscious stage. On the other hand, this version of PW. 2 that PW. 1 was unconscious is not supported by other evidence and medical evidence on record. Therefore, the say of PW. 2 that after the incident PW. 1 became unconscious is not a ground to disbelieve the entire version of prosecution. Neither in the cross-examination of PW. 1 nor any other witness, it is not even suggested that PW. 1 was unconscious immediately after the incident, till he was treated in the hospital. In the circumstances, no much credence can be given to the say of PW. 2 that after the incident PW. 1 was unconscious. The real controversy was between PW. 1 and accused no. 2 When there was a verbal exchange between accused no. 2 and PW. 1, accused no. 1 interfered and caused injuries to PW. 1. In the facts and circumstances of this case the incident is not a preplanned and organized one. On the other hand, the incident was an outcome of provocation and fit of emotion. Further it is seen that on the date of incident accused no. 1 was aged about 26 years. The incident had taken place about 9 years back. In the facts and circumstances of this case, I am of the considered opinion that it will be just and reasonable if accused no. 1 is sentenced to undergo simple imprisonment for a term of two months and to pay a fine of Rs. 1000/- for the offences punishable under Sections 324 and 326 IPC. For the reasons stated above, the following:

ORDER

i) Criminal Revision Petition is partly allowed.

ii) The impugned judgments of both the courts below convicting petitioner/accused no. 1 is hereby confirmed.

iii) The sentence of levying fine of Rs. 1000/- on the petitioner for the offences punishable u/s 324 IPC and in default to undergo 20 days simple imprisonment is hereby confirmed

iv) For the offence punishable u/s 326 IPC the petitioner is hereby sentenced to undergo simple imprisonment for a term of two months. To this extent the impugned order of sentence passed by both the courts below is modified.

v) In case the petitioner had undergone any sentence then he is entitled for set off for the said period.

vi) Ordered accordingly.