SRI S VISHAL v. STATE OF KARNATAKA

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER This revision petition is filed against the conviction order passed in C.C.No.71/2010 for the offences punishable under Sections 341, 324, 326, 504 and 506 of IPC and also against the judgment of the appellate court in Crl.A.No.230/2015 wherein the appellate Court modified the judgment of conviction to 3 months for the offence punishable under Section 326 of IPC and convict No.2 is further sentenced to pay Rs.1,00,000/- for the offence punishable under Section 326 of IPC and directed to pay the compensation to the victim on deposit of the said amount.

2. Heard the learned counsel appearing for the respective parties.

3. The present revision petition is filed by accused No.2 i.e., convict No.2. The factual matrix of the case against this revision petitioner is that he inflicted the injury on the victim with the iron rod and as a result, he had sustained the injury on the forehead. The trial court having considered the evidence available on record, particularly evidence of PW1 to - 3 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR PW9 and Ex.P1 to P12, and also considering the MO1 to MO4, comes to the conclusion that the prosecution was able to prove the charges levelled against the accused persons and convicted the accused persons. The same was challenged before the Appellate Court. the Appellate Court also on re-appreciation of material on record, confirmed the judgment of the Trial Court with the modification, particularly directing this petitioner to pay compensation of Rs.1,00,000/- apart from the sentence of 3 months which was reduced from 2½ years.

4. The counsel appearing for the petitioner would vehemently contend that it will not attract the offence of Section 326 of IPC. In support of his contention, he relied upon the judgment of this Court reported in 2010 SCC ONLINE KAR 5294 in the case of STATE vs SHEENAPPA GOWDA AND OTHERS wherein this Court made an observation that if the prosecution fails to produce the X-ray before the court, 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 PW1 would only show that there was injury as described in the - 4 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR wound certificate-Ex.P2. When PW1 suspected such fracture, he ought to have referred the injured-PW4 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 and medical examination clinically, it cannot be said that the accused have caused grievous injury of fracture. Having considered the same, it discloses that instead of comes to the conclusion that it will not attract Section 326 of IPC and the offence committed by them falls within the ambit of Section 324 of IPC.

5. The counsel appearing for the petitioner also relies upon the order passed by this Court in Crl. R.P No.330/2017 dated 21.02.2024 wherein the accused No.1 had challenged the very same judgment in C.C.No.71/2010 and the said revision petition was allowed in part and offence punishable Section 326 of IPC is set aside. The counsel would submit that in view of the said revision petition arrived out of the very same judgment and this Court set aside the offence punishable under Section 326 of IPC and maintained the conviction for the other - 5 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR offences, this Court has to extend the very same benefit to this petitioner also.

6. The counsel appearing the State would vehemently contend that that eye witnesses are PW1, PW2, PW4 and PW6 and they have categorically deposed before the Court the manner in which the incident was taken place and particularly this revision petitioner inflicted the injury with iron rod on the victim which is marked as MO4 before the trial court and the evidence is consistent. Even though X-ray is not produced before the trial Court, clinically the victim was examined and he has suffered the grievous injury. Counsel also submits that the evidence of these witnesses are very clear that injured also taken the treatment for a period of 7 days. Hence, this Court cannot exercise the revisional powers.

7. Having heard the counsel appearing for the petitioner and also the counsel appearing for the respondent, the point that would arise for the consideration of this petition is:

1. Whether the judgment of the trial Court in respect of this petitioner who is convict No.2 of conviction - 6 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR and sentence is sustainable in eye of law And whether the same suffers from legality and correctness?

2. What order? Point No.1

8. Having considered the material on record and also the grounds which have been urged in the revision petition and also considering the evidence of PW1 to PW9 with regard to the incident is concerned, it discloses that the Trial Court considering the eye witnesses evidence i.e., PW1, 2, 4 and 6 comes to the conclusion that the victim was subjected to assault with iron rod by this petitioner and MO4 is also marked in this regard. The trial Court has taken note of the evidence of the witnesses including the evidence of the doctor who deposed before the court regarding nature of injuries. This court already considered the issue with regard to the offence under Section 326 of IPC when the revision petition of accused No.1 was considered and the offence punishable under Section 326 of IPC was set aside. In view of the judgment of this Court in the case of SHEENAPPA GOWDA referred supra, wherein in paragraph 18, this Court comes to the conclusion that in the absence of - 7 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR X-ray confirming the fracture, question of invoking Section 326 of IPC does not arise and at the most it attract Section 324 of IPC. This Court already in respect of Accused No.1 confirmed and maintained the conviction and sentences in respect of the other offences in Crl.R.P No.330/2017 and set aside the offence punishable under Section 326 of IPC.

9. Having considered the factual aspect of the case, it discloses that the incident was taken place on 24.11.2009 i.e., almost 17 years ago and that too accusation is that in furtherance of the common intention, wrongfully restrained and caused voluntarily hurt and also the accusation is that used the filthy language and caused the life threat. In respect of other offences, trial Court also maintained only the sentence of imposing of fine and only in respect of the offence under Section 324 of IPC sentenced to undergo for a period of 6 months and for offence punishable under Section 326 of IPC sentenced to undergo for a period of 2½ years. Having considered the factual aspects, it is clear that there was earlier ill-will and the incident was taken place and also the PW1, PW3 and PW6 who are the eyewitnesses to the incident are also the - 8 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR relatives of the complainant. More than one and half decades has been elapsed from the date of incident. Thus, it is appropriate to sentence him to pay fine amount instead of sending him for jail to suffer the sentence for a period of 6 months after 17 years. Hence, this court modifies the sentence maintaining the conviction in respect of the offence punishable under Section 324 of IPC instead of 6 months with fine of Rs.2,000/-, fine could be enhanced to Rs.75,000/- considering that injured took the treatment in the hospital for a period of 7 days, instead of undergoing the sentence for a period of 6 months. Hence, answered the above point accordingly modifying the sentence. Point No.2:

10. In view of the discussions made above, I pass the following: Order Revision petition is allowed in part. The conviction and sentence for the offence punishable under Section 326 of IPC in respect of this petitioner is set - 9 - NC: 2026:KHC:27973 CRL.RP No. 744 of 2017 HC-KAR aside and in respect of the offence under Section 324 of IPC is modified and directed the petitioner to pay a fine of Rs.75,000/- instead of Rs.2,000/- and also the punishment of 6 months. The same is payable within 4 weeks from today. On depositing of the amount of Rs.75,000/- before the trial Court, the trial Court is directed to release the amount of Rs.70,000/- favour of injured-PW1 on proper identification and the amount of Rs.5,000/- shall vest with the State. If the revision petitioner fails to deposit the amount, undergo the sentence imposed by the Trial Court. The conviction and sentence for the remaining offences is maintained and unaltered. Sd/- (H.P.SANDESH) JUDGE SN