Syed Lathif and Others vs State

A.S. Pachhapure, J.

The petitioners have challenged their conviction and sentence for the offence punishable under Section 326 of IPC passed by the JMFC at H.D. Kote.

The facts reveal that on 26.03.2003 when the complainant PW1-Nanjundaswamy was grazing his livestock in one part of the tank bed of Haropura Village, at that time A1 who had planted banana saplings by encroaching the other part of the tank bed, objected for the said grazing. A2 son of A1 was also present at that time. PW1 told that he would take away livestock. There was a quarrel between PW1 and accused No. 1. In those circumstances accused No. 2 brought club and A1 abetted A2 to bring iron plank from the house of Chandsab and asked him to hit with it and accordingly A2 brought the iron plank and hit on the leg of the PW1, who sustained grievous injuries. PW4 who came there rushed to the spot and along with PW2, brought PW1 to H.D Kote Hospital. PW1 was treated by PW7 and for higher treatment PW1 was referred to the K.R. Hospital, Mysore. When PW1 was in H.D. Kote hospital, received medical memo from the hospital and PW6 proceeded to the Hospital, recorded the first information in presence of Doctor and registered the case. He prepared the mahazar in presence of PWs. 2, 3 and CW4, recorded the statement of PW2 and collected Medical certificate Ex. P4 and Ex. P7 wound certificate. On the completion of investigation, charge sheet was filed for the offence punishable under Section 326 of IPC.

During the trial the Prosecution examined PWs. 1 to PW8 and got marked exhibits Ex. P7 to P8 and recovered MO-1 iron plank. After recording the statement of accused under Sec. 313 Cr.P.C., the Trial Court heard the Counsel and on appreciation of the evidence on record, convicted and sentenced the accused for the offence punishable under Section 326 directing Accused NO.1 to under go simple imprisonment for one year and to pay fine of Rs. 1,000/- for the abetment of commission of the offence punishable under Section 326 of IPC and in default of payment of fine, directed that he shall undergo simple imprisonment for another two months. The accused No. 2 is directed to undergo simple imprisonment for three years and to pay fine of Rs. 4,000/- for the commission of offence punishable u/s. 326 of IPC and in default of payment of fine to under go simple imprisonment for another six months. Being aggrieved by this, the petitioner approached the Sessions Court in Crl. Appeal No. 268/2007, which came to be dismissed on 13.11.2009. Being aggrieved by this order, the petitioners filed this revision petition.

Heard the learned counsel appearing for the petitioner and the Government pleader appearing for the respondent.

The points that would arise for my consideration:

"1. Whether the conviction against the 1st petitioner amounts to conviction under Section 326 of IPC?

Whether the order of conviction and sentence needs any modification?"

The learned counsel appearing for the petitioner submits that the 1st accused cannot be convicted under Section 326 of IPC, and at the most, he is liable for the offence under Section 324 IPC. Apart from this, it is his contention that the 1st petitioner is 75 years old and as he is aged person and 2nd petitioner is a married person having children and in case, if they are sentenced for a long period, the family would suffer.

Learned High Court Government pleader appearing for the respondent supports the impugned Judgment and order passed by the Trial Court.

There is no serious dispute about the happening of incident. There is evidence of PW1 -the injured and also others to prove the incident. So far as the 1st petitioner is concerned, Ex. P1 -complaint reveals that, accused No. 1 abetted accused No. 2 to bring the iron plank from the house of Chandsaab and hit PW1 and the victim suffered grievous injuries.

As per Ex. P2-Mahazar, the accused No. 2 has assaulted PW1 with iron plank. The fact as to whether after giving a blow with iron plank the victim suffers grievous injuries or simple injuries can not be within the knowledge of accused No. 1, but it is knowing to accused No. 2. Therefore, conviction of the 1st petitioner under Sec. 326 IPC is improper as he had no knowledge that the accused No. 2 would cause a grievous injury. Therefore, I am of the opinion that conviction of the 1st accused for the offence under Section 326 is improper and it needs to be modified to Section 324 of IPC. So far as 2nd petitioner is concerned, he has caused grievous injury to the victim and is liable under Section 326 of IPC.

So far as the sentence is concerned, 1st petitioner is aged about 75 years. He is in the evening of his life. Taking these aspects into consideration, I feel to award any fine amount. That apart the incident is of the year of 2003 and twelve years elapsed in between. Further more the 2nd petitioner is a married person having children. Taking all these facts into consideration reasonable sentence needs to be granted.

Consequently, the revision petition is allowed in part. Conviction of A1 (Petitioner No. 1) is modified. He is convicted for the offence punishable under Section 326 is set side. He is acquitted of the said charges. He is convicted for the offence under Section 324 of IPC and he is ordered to pay fine of Rs. 10,000/- in default, to undergo simple imprisonment for three months.

Conviction of Accused No. 2 (petitioner No. 2) is confirmed. He is ordered to undergo simple imprisonment for a period of three months and pay fine of Rs. 10,000/- in default to undergo simple imprisonment for one month.

On deposit of the fine amount, a sum of Rs. 15,000/- shall be paid to the injured. The remaining amount shall be paid to the State as fine.

The presence of accused No. 2 shall be secured to undergo the sentence, as ordered.

He is entitled to set off as provided under Section 428 Cr.P.C.