State v. Sheenappa Gowda And Others

The Judgment of the Court was delivered by

V.G Sabhahit, J.:— This appeal is filed by the State being aggrievied by the judgement of the Court of the Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Appeal No. 170/1999 dated 24.01.2002, wherein the learned Sessions Judge has allowed the appeal in part and has confirmed the finding of the trial Court that the accused Nos. 1 to 3 and 5 are guilty of having committed the offences punishable under Sections 143, 147, 148, 447 and 324 of the Indian Penal Code and has set aside the finding of the trial Court that the accused are guilty of the offence punishable under Section 326 of I.P.C Further, the learned Sessions Judge has set aside the sentence of imprisonment, and fine passed by the trial Court and in lieu of the same, has sentenced each of the appellants therein to pay a fine of Rs. 250/- and in default of payment of fine, to undergo imprisonment for 15 days for each of the offences punishable under Sections 143, 147 and 148 of IPC, and to pay a fine of Rs. 500/- and in default of payment of fine, to undergo imprisonment for one month in respect of the offence punishable under Section 447 of I.P.C and to pay fine of Rs. 1,000/- and in default of payment of fine, to undergo imprisonment for 45 days each for the offence punishable under Section 324 read with Section 149 of IPC.

2. Th essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:

3. Accused Nos. 1 to 5 stood charge before the Court of the Addl. Civil Judge (Jr. Dn), and J.M.F.C Puttur, Dakshina Kannada, in Crl. Case No. 1796/1993 on the allegation that the accused and PW. 3 -Balakrishnagowda are brothers and in connection with the dispute regarding the right of way, there existed enmity between them. On 30.04.1993, at about 9 p.m, accused Nos. 1 to 5, came to the Courtyard of PW. 3 - Balakrishnagowda armed with deadly weapons like talwar and cudgel and addressing PW. 3, who was washing his hands after taking his dinner as “Rande Maga” etc… accused No. 1 assaulted him (PW. 5) with Talwar on his hand and accused Nos. 2 to 5 assaulted him with cudgel all over his body and when the wife of Balakrishna Gowda (PW. 3), namely, Smt. Susheela (PW. 4) intervened, was also assaulted by accused No. 1 with Talwar and also cudgel by the other accused persons. The accused formed themselves into an unlawful assembly with a common object and in furtherance of the common object of the unlawful assembly, assaulted and caused injury to PWs. 3 and 4 and thereby, committed the offences punishable under Sections 143, 147, 148, 324, 326 read with Section 149 of I.P.C

4. All the accused pleaded not guilty and claimed to be tried. The prosecution examined PWs. 1 to 10 and got marked Exs. P1 to P8(a) and got marked M.O Nos. 1 to 7. During the pendency of the trial before the learned Magistrate, accused No. 4 — Ramanna Gowda died and the statement of the other accused was recorded under Section 313 Cr.P.C The defence of the accused is one of denial and it is their case that a false case has been foisted against them. They did not choose to lead any defence evidence.

5. The trial Court, after considering the contentions of the learned Counsel appearing for the parties and on appreciating the oral and documentary evidence adduced by the parties, by judgement dated 29th November 1999, relied upon the evidence of the injured eye-witnesses PWs. 3 and 4 as also the evidence of the medical officer— PW. 1, who examined PWs. 3 and 4 and issued wound certificate of PW. 3 as per Ex. P1 and wound certificate of PW. 4 as per Ex.P2 and held that the prosecution has proved beyond reasonable doubt that the accused have committed the offences punishable under Sections443,147,148, 447, 324, 326 read with Section 149 of IPC, and sentenced each of the accused Nos. 1 to 3 and 5 to undergo: simple Imprisonment for three months for the offence punishable under Section 143 of IPC; simple imprisonment for one yea & and to pay a fine of Rs. 1,000/- and in default of payment of fine, to undergo two months impriosnment for the offence punishable under Section 147 of I.P.C simple imprisonment for two months and to pay fine of Rs. 500/- and in default of payment of fine, to undergo imprisonment for 20 days for the offence punishable under Section 447 of I.P.C; simple imprisonment for one year and to pay fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for two months for the offence punishable under Section 324 of I.P.C and simple imprisonment for two years and to pay fine of Rs. 2,000/- and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 326 of I.P.C The trial Court further ordered that all the corporal punishments shall run concurrently and gave set off under Section 428 Cr.P.C for the period of detention already undergone by th accused.-Being aggrieved by the said judgment of conviction and Sentence, accused Nos. 1 to 3 and 5 preferred Criminal Appeal No. 170/1999 on the file of the Sessions Judge, Daksnina Kannada, Mangalore.

6. Learned Sessions Judge, by judgement dated 24.01.2002, confirmed the judgement of conviction passed by the trial Court against the accused Nos. 1 to 3 and 5 in respect of the offences punishable under Sections 143, 147, 148; 447 and 324 of IPC., and set aside the finding of the trial Court that the accused Nos. 1 to 3 and 5 are guilty of the offence punishable under Section 326 of I.P.C, and modified the sentence as already referred to above. Being aggrieved by the said judgment of the learned Sessions Judge in so far as it relates to the finding that the prosecution has failed to prove that the accused Nos. 1 to 3 and 5 committed the offence punishable under Section 326 of I.P.C, and the offence committed by them is punishable under Section 324 of I.P.C, the State has preferred this appeal contending that the learned Sessions Judge ought to have confirmed the judgment of conviction and sentence passed by the trial Court and was not justified in allowing the appeal in part.

7. We have heard the learned State Public Prosecutor appearing for the appellant-State and the learned Counsel appearing for the respondent Nos 1. and 3.

8. During the pendency of this appeal, Respondent No. 2-Puttanna Gowda (accused No. 2) died on 18.07.2002 and by order dated 19.09.2002, the appeal was held abated against respondent No. 2. Appeal was dismissed against Respondent No. 4-Chidananda Gowda (accused No. 5) by order dated 22.10.2002 and wherefore, the appeal survives only in respect of accused Nos. 1 and 3.

9. Having regard to the contentions urged, the points that arise for our detrmination in this appeal are:

1. Whether the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused have committed the offence punishable under Section 326 read with Section 149 of I.P.C and the offence committed by the accused falls within the ambit of Section 324 of I.P.C is justified or calls for interference in this appeal?

2. What order?

10. Point No. 1: The finding of the appellate Court is jusitifed.

11. Point No. 2: In view of our answer to point No. 1, the finding given by the learned Sessions Judge convicting the accused under Section 324 of I.P.C by modifying the finding of the trial Court that the accused have committed the offence punishable under Section 326 of I.P.C is entitled to be confirmed. However, the sentence imposed for the offence punishable under Section 324 of I.P.C, is liable to be enhanced as per the final order for the following:

REASONS

12. Learned State Public Prosecutor has taken us through the evidence of PWs. 1 to 10 and also the documents got marked by the prosecution as per Exs. P1 to P8(a).

13. We have scrutinized the evidence adduced by the parties.

14. Both the trial Court and the appellate Court have concurrently accepted the evidence of PWs. 3 and 4, who are injured eye witnesses to the incident. PW. 3 has deposed about the relationship among the accused and the injured, and about the incident and has stated that accused No. 1 assaulted him on his left leg and left hand with Talwar — ‘Baalu Kathi’. and the other accused assaulted him with clubs on his back and other parts of the body. When he cried, PW. 4 - Susheela came over there and she had torch light in her hand. Accused No. 1 assaulted PW. 4 on her left forehead and left little finger. Nothing has been elicited in his cross-examination to disbelieve his evidence. PW. 4—Susheela has fully corroborated the evidence of PW. 3 regarding the assault caused by the accused in furtherance of the common object of unlawful assembly. PWs. 3 and 4 are the natural witnesses and are injured witnesses. In view of the fact that nothing has been elicited in their cross-examination to disbelieve their evidence and their evidence is corroborated by the evidence of the Doctor - PW.1 and the wound certificates issued by him as per Exs. P1 and P2, it is clear that the prosecution has proved beyond reasonable doubt that the accused have committed the offences as alleged against them and assaulted PWs. 3 and 4 and caused injury, to them by forming an unlawful assembly, armed with deadly weapons and committed trespass into the path way. The accused have not chosen to file any appeal against th order of the learned Sessions Judge and even otherwise, having regard to the above said material on record, the finding of the learned Sessions Judge confirming the judgement of conviction and sentence passed by the trial Court in respect of all the offences except the offence punishable under Section 326 of I.P.C, is unassailable.

15. Learned Counsel appearing for the respondents 1 and 3 submitted that the offence that is committed by the accused would not fall within the ambit of Section 326 of I.P.C, and the order of the learned Sessions Judge that the same falls within the ambit of Section 324 of I.P.C, is justified as no X-ray report is produced and the burden to prove the guilt of the accused is always on the prosecution and never shifts to the accused. Therefore, it is to be considered as to whether the injury caused to PW. 4 is grievous in nature s held by the trial Court or a simple injury as held by the Sessions. Court in the appeal filed by the accused.

16. 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 PW3 re simple in nature according to the evidence of PW.1 However, PW. 1 has stated in his deposition that PW. 4 - Susheela has sustained the following injuries:

“1. Lacerated wound ½ inch × 1 ½ inch × ½ inch over the forehead;

2. Lacerated wound over the little finger left side at the proximal I.P found measuring ¾ inch × ½ inch × ½ inch with bleeding on the dorsal aspect with fracture of middle phalanx.

3. Abrasion over the middle of right thigh anterior aspect

4. Abrasion over the left chin”.

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

18. 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 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 resonable 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 - PW. 4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat 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, he same would not dispense with the production 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 I.P.C and the offence committed by them falls within the ambit of Section 324 of I.P.C is justified.

19. However, so far as sentence for the offence punishable under Section 324 of I.P.C is concerned, in view of the fact that the offence under Section 324 of I.P.C is punishable with imprisonment of either description for a term which, may extend to three years, or with fine; or with both and having regard to the fact that the incident occurred on 30.04.1993 and about nine years had elapsed prior to the date of the judgement of the learned Sessions Judge i.e, 24.01.2002, the learned Sessions Judge has rightly held that it was not proper to sentence the accused to imprisonment at that stage. Further, as on today, since nearly 17 years have elapsed after the incident, it would not be proper to sentence the accused with corporal punishment of imprisonment. The appeal has abated against appellant No. 2 - Puttanna Gowda (accused No. 2 before the trial Court) as he died during the pendency of this appeal and appeal has been dismissed against appellant No. 4 - Chidananda Gowda (accused No. 5 before the trial Court). Therefore, sentence is to be passed only against respondents 1 and 3 herein (appellants 1 and 3 before the Sessions Court and accused Nos. 1 and 3 before the trial Court). The fine imposed by the learned Sessions Judge against the respondents 1 and 3 herein for the offence punishable under Section 324 read with Section 149 of I.P.C is Rs. 1000/- each, and in default of payment of fine, to undergo simple imprisonment for 45 days each. We have confirmed the concurrent finding of both the Courts below that PWs. 3 and 4 had sustained injuries and conviction of the respondents 1 and 3 herein for the offence punishable under Section 324 of I.P.C is upheld. Having regard to the nature of it simple injuries sustained by PWs. 3 and 4 and the other facts of the case and the situation bearing upon the question of sentence, it would be appropriate to sentence respondents 1 and 3 (Accused Nos. 1 and 3 before the trial Court) to pay a fine of? 10,000/- each and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 324 of I.P.C read with Section 149 of I.P.C Accordingly, we answer the points for determination and pass the following Order:

The appeal is allowed in part. The judgment of conviction passed by the learned Sessions Judge, Dakshina Kannada, Mangalore, in Criminal Appeal No. 170/1999 against the respondents herein for the offence punsihable under Section 324 of I.P.C read with Section 149 of I.P.C, is confirmed and respondent No. 1 - Sheenappa Gowda and respondent No. 3 - Kushalappa Gowda are sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) each and in default of payment of fine, to undergo simple imprisonment for three months each. The sentence imposed by the learned Seesions Judge in all other respects is confirmed.

20. The trial Court is directed to take steps for recovery of fine in the event of default of payment of fine within time by the respondents 1 and 3 herein (accused Nos. 1 and 3 before the trial Court) and remand respondent Nos. 1 and 3 for undergoing default sentence in accordance with law.

21. Out of the fine amount deposited, Rs. 5,000/- (Rupees Five Thousand Only) shall be paid to PW. 3 - Balakrishna Gowda as compensation and Rs. 10,000/- (Rupees Ten Thousand only) shall be paid to PW. 4 - Smt. Susheela as compensation.