~ = _AK0Z)AGI_¢£ _c;:sTRsc'r MMMMM I «
(BY MURTHY. SPF')
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 301" DAY OF JUNE 2008
BEFORE
THE HONBLE MRJUSTICE K.N.KEsHAvANAaA'YAaA;pILST[ _If
CRIMINAL REVISION PETITION If} T I
BE [mE§I_\I:
T c: NETHRAJ
sro T s CHENNAVEERAIAH
AGED ABOUT 43 YEARS
mo: AGRICULTURIST I
RIO JAMBOOR VILLAGE I
SOMWARPET TALUK E I
KODAGU DISTRICT I
g I _ §..T.I=ETuTtoNER
(BY SRI. H s I
SRI.K.A.CHANDRA$H_EKAR,'ADV.),
ANQ :
THE sTATEI:oF
BY THE Pouczeorf SOFJ_IEWARPET
POLIé;.':E STATION,
RESPONDENT
* . I “”I’TI?IIS.I–V’;3|-TIIIIIINAL REVISION PETITION es FILED u:s.397
RJW4T._401yCR..P.C BY THE PETITIONER PRAYING THAT was
I HON’?-.LEA.V COURT MAY BE PLEASED TO SET ASIDE THE
CONVICTION AND SENTENCE DATED 1.2.2001
,.’..F’AS$AED BY THE C.J.M., M.%IKERI, IN C.C.NO.83i1998 Ahw
T I’ .CQN_FIRMED BY THE DISTRICT 8: SESSION JUDGE, KODAGU,
— MADIKERI. IN CRL.A.N0.15I2001 BY HIS JUDGMENT AND
.T°R°5’I’I9§T5IEII&IIs$%Z°R%vIs:oN PETITION comm ow FOR
I ‘HEARING THIS DAY, THE COURT MADE THE FOLLOINING:
ODR
This Revision Petifion is filed under Sections 397
Cr.F’.C by the accused in cc No.83l1998 quesfioningihe _
and correctness of the judgment of conviction. i
passed by the CJM, Madikeri, convidirig
the offences punishable under sections and,’.E}O:6j’
sentencing him to undergo simp|e””irnf3rison.rneni
and to pay a fine of Rs.2,£.’.$O[&-_ paufivne, ‘to undergo
simple imprisonment for ‘judgernent dated
28.3.2006 passeci–::l;y_ me=;i ileerneeeuenieiner* Sessions Judge.
Madikeri,”iin’ one ‘disrnissing the said appeal and
affirmind”eil1e<'judg:nient.:of and sentence passed by the
learned MaV§istrete.VVV' A _
V' _; 2'. The Police filed charge sheet against the
eeenees punishable under Sections 326 and 506
-epic,inteeeiee%%elieging that on 2.4.1998 at Jernboor village. when the
corn’pieineiniel?W.1-P.N.Mohen was supplying water to his
V”vegeta5le_.i§erden, the accused cerne there in a Tractor and asked
T:”‘ine.,coinplainant to allow him to take his Tractor on the pafliway te
‘ V’ Haitihole to load sand. At that time, the complainant replied
mat the accused cannot take his Tractor on his pathway as there is
a stay order from the High Court and the case is pending before the
fie
i
High Court. At that time, me accused being enraged by the
statement of the complainant, got down from the Tractor, rernoved
the gate across the pathway and took out an iron rod
Tractor and assaulted the complainant on his left foot;”‘lefi K H ”
also on the left cheek causing grievou.ehu’rt
the complainant with dire consequences: * . __lrrirnAediatelyi,Athe .,
complainant was taken to the local ‘-hcepital.and ‘twat-3 Q’
taken to the District Hoepitel. e We ‘in me District
Hospital showed fracture ol’4″‘_e_ T hereafter. PW.1
lodged a compiaintihefore based on which
are Police Afteivgvinyeefigation, charge sheet
came l”
5 -3. of-surnmons, the accused appeared before
,.r_gieV”:olearhed “Magistrete”‘and pleaded not guilty for the charges
o.’__le’ve”_ile—.1 for the offences punishable under Sections 326
ahd Soe 19¢.’ he claimed to be tried.
” 4. During trial, the prosecution examined the complainant as
l an eyewihwess-Rudrappa as PW.2. seizure mahazar witness
was PWs.3 and 4, the brother of the complainant who was also
stated to be an eyewitness as PW5. two Police Omcers as PWs.6
and 7 and the Doctor who treated the compiainant as PW.8,…__’ihe
prosecution also got marked l’:’.xs.P.1 to P.5 and M.0.1. ; i
5. During examination under _-Section ;3.’l3′”‘ i” it
accused denied all incriminating circurrestenees a§:peering’eQainsi_:
him in the evidence of The the *
accused is one of total denial.
6. After hearing the oral and
documentary l.eerned by his judgment
under hes proved the guilt of the
accused Sections.326 and 506
IPC beyond In that view of the matter. the
iearned. the accused to undergo simple
V’ –.impirisorlment..for thre”e”monflns and also to pay fine of Rs.5,0GOI-.
by the said judgment of oonviction and sentence,
appeal before the learned Sessions Judge,
Madikeriin vCrlA.No.i5i2w1. The learned Session Judge alter
A Q” hearing both sides, by his judgment under revision dismissed the
AV’ saidiappeal and upheld the judgement of the learned Magistrate.
&
?. Questioning the legality and correctness of these
judgments, the accused has presented finis Revision Petitian.
interalie on the ground that the judgments of the Couns~.belo’uE4
erroneous and contrary to the evidence on record,__ ‘as tltefflotrrts _
below have not properly appreciated themevidence
prosecution in its proper perspective afindithat aiépcaums
have failed to note that the lngredientsiof sectsqns. of ‘ A
PC have not been estai)!iashedé.ra’nd.p/ghe iudgrnents of the
Courts below suffer from are liable to be set
aside.
l have ‘iieardiithe-learned counsel for the petitioner as weli
as the learned the State.
he learnedicouvnsel for the petitioner contended that the
.__ei:idence”«..gn~ mead ciearly indicates that there was some civil
dispute in of the pathway and order of injunction granted
‘<._by had been vacated. Therefore. the complainant had
A 5. to obstruct any of the public including the accused to pass
' through the said pathway. Under these circumstances. learned
counsel submitted that even if the incident alleged is presumed to
have taken place, it must have taken place in a heat of passion
without there being any intention on are part of the accused. He
€263//rt-
furfiuer submitted that in the absence of X-ray film, the Courts. helow
ought not to have held diet the complainant has suffered
oniy on the basis of the evidence of PW.8 who hasuinoti. ‘
seen the X-ray film before issuing the cere?ticete._” iitigeergte, i_:h_ere._V ‘A V’
is no material on record placed by the :’pros’ecu’hon*
F’W.1 had suffered fracture awaiting the ‘offence
325 IPC. He further coniended fior__any” ‘reasen, ihis Court
comes to the conclusionihet the Courts below
convicting the accusw for…the under Section
326 iF’C is to iii}-.hai:_ei);ent; sentence ordered, having
regard to the higher side and a
lenient reliance on the iudgment
of the Supreme of Neil: Sing}; vs. State of
Punjab _reported in ,49iscici-1;L:J 2061.
V “ihe’~..other hand, learned Pubiic Prosecutor for the
Stet.e”‘soudht’iito5’suppo1t the reasoning of the Courts below and
‘,_contendedjthat there are no grounds to interfere with the judgment
‘V V’ offi’1e..sCoiirts below. He further contended that having regard to
* theiinehzre es weii as the gravity of the offences for which the
T ” “accused has been found guilt. the sentence of imprisonment for
U three months itself is on me lower side, therefore, there are no
grounds to interfere even with the order of sentence passed by the
gag/,,-
Coors beiow. With these contentions. he sought for dismissai of
the Revision Petition.
11. in the light of the above facts. the poimsmy u so
consideration are; _ i ? _ T» A
*1) Whether the come beioweere justified in ekheadfmg
the accused-revision petitioner of”eie”of§encesV
punishable undersectiens
ii) Whether the senteneef oreeredfiabyy learned
i it
12¢»-,,in”order_ the prosecution placed strong
reliance on the ‘evidenoe the complainant who has been
V_P1N’.i’end.._his brother P.N.Ponnappa examined as
. indemndent eyewieiess has been examined as
to the evidence of PWs. 1 and 5. on
the duete. otthedd incident at about 8.00 AM. the complainant was
it “‘V.:-eetering the vegetabie plants by the side of his house. At that
accused came there in his Tractor and tried to pass
T through me pathway by the side of the garden land of the
d it complainant. At that time, the complainant proeeeted and told the
accused that there is a stay order issued by the High Court in
reepectoffi1esaidpa”thway.eseuohnoonecanpessttwoughthe
said pathway. F’W.1 has further mted. inspllle of the same. the
accused tried to take his Tractor thmugh the pathway and
protested again, the accused with a rod found in
assaulted him (PW.1) on his left leg and left fl1igil,__}is..::s M’
fell down, immediately, be was shifted ts’
5. In the cross-«examination ofTPW.1k;’it
civil suit is filed by his mum: PVlI.5.l:’§c§insth me Gaul l _ the ‘ %
Court of Civil Judge, sr.on.__ancl is fill-pemilng. It is
funher elicited from l=vv.1 ihé issued by the
Civil Judge. Sr. has .:o.m at Madiketi.
Court Ame; said’ ‘lzflspuia.-‘ lt is further elicited from PW.1
that in me glvil filed an affidavit stating that
the J 5 sumac road. PW.5-Ponnappa has
. ewtlencw “”” of P’W.1. with regard to the incident’ of
ed. In the cross~examination of PW.5 it is
elicited tj:asf_fll:aAV.has filed suit in 05 No.1a’me94 agairm one
-Ggargesli the file of me clvll Judge (Sr.Dn.). ll is further elicited
‘ that me said suitwas filed since Ganah the defendant in
‘ fiaid suit was kansporting sand through that pathway. He has
admlmw that in the said civil suit. the mused has time: an affidavit
stating that the pathway is a public road. He ms plefi his
ignorance to rim suggestion mat the accused has a lissnselpemlit
:1
facts. Under these circumsterrces. in die light of evidence of PW.2.
there is no dimculty in accepting evidence of F’Ws. 1 and 5 the
accused came near the scene of occurrence in the Tractor’erjd
the presenw of me accused at the place of
Learned counsel for the accused has not crose4e*xarii’ined:: ” ‘V it
Therefore. there is no difficulty in
widi regard to the presence
with regard to the actuai incident’Vi’io¢t_V’Vvatr-tsreuitl accused on
PW.1 . the oral testimony :5.
the same. There are no B031 the
Courts below praczgtgierelianceeri thefevseéncelor PWs.1.2 and 5
have -that the prosecution has proved
the inciderrtot accused on F’W.1 beyond alt
reaeenabte doubt… do not see any error committed by the Coum
tltewsaid finding. There are no reason: for
:.tte:r§r:nege eaid finding.
14.__A’3′:’-‘rem the facts of the case. the imident of assault
A 4’ to have miter: place in a heat of passion. As noficed
. though there was no order of injunction in raped of the
said pathway and the injunction came to have been granted bythe
Civil Court had been vacated. the complainant appears to have
preventedtheacousedfrorn prooeedingorittrepathwaytoream
Hattihoie for loading sand. This must have enraged the accused.
Therefore, under flwese circumstances, it is reasonable to
the incident has occurred in a hat of passion. _
offenca proved attracts the provisions of i
However, white imposing sentence.
the other attendant circumstances in the d
the case, it is ciear that the did an
intention of committing go near
Hattihoie fo: loading sand. by the
complainant on of assault. vital
part of me assauit was on the left
foot the 4″‘ Metatarsal base. The
circumstaneaealso accused was not armed with
weapon no accozdingto prosecution witnesses, he took out the
i it “:odiioI:najAin’i*ae The incident has occurred on 2.4.1993.
eiapsed from the date of the incident.
these circumstances. the question is as to
whetha: this length of time. the accused shouid be sent to Jail.
V’ ~TAhe”Hon’t>Ie Supreme Court in Naib Singhis case referred to supra,
‘ aiftet aitering the offence for which the accused therein had been
” “convicted to one under Sutton 326 has sentermd the accused
therein to undergo imprisonment till the raising of the Court and to
pay a fine of Rs.5,000l-. The Hon’ble Supreme Court while
imposing sentence, in para-‘?, has observed em they were inclined
to take a lenient View having regard to the fact that the
therein was a Teacher in a school and the
prosecution showed that film incident place
the moment. The Supreme of ~.
incident had occurred about lame basin pruned; «ea. c
Lordships observed that did,not iiginkfagiessrabee resend the
appellant back to Jail. in their Lordships
reduced sentengejég. fieaone year awarded
by the High o¢en«.2olls~e.irm;;nsenrnen§ an of the Court.
16.’ Ash’ facts and circumstancw of he
case. hand aisohrdicavies that this is not a tit mse to send the
VZ’pee&onerlite_%:Jaii having regard to the fact that the incident has
ago. The evidence on record shows that me
acc’used.._has.lAected in the heat of moment as he was obw-acted on
dround from proceeding through the pathway to reach
A for loading sand. in View of the above discussion, I am of
considered View that the observation of the Horfbie Supreme
Court in die aforesaid decision would squarely apply to the case
and even this is a fit case vmere the accused should be sentenced
to undergo imprisonment till the raising of the Court and also to pay
gig
fine of Rs.5,000l-. Bom the Courts below have completely
overlooked this aspect of the matter whiie imposing sentence» in
my considered view, this is an illegality commmed
below vimich rmuirw to be corrected by this Court
the revisional power under Section Mr ‘reed«wii#i ores”
Cr.P.C.
17. Accordingly. Crimir;raI..xF§ei;ision in
part. The iudgment of coniiieiien learned Magistrate
convicting the acctjseo for under $ections
326 and Judge affirming the
judgment However. in modification of
the sentence iearned Magistrate the accused-
is to’ unriergo imprisonment till the raising of
i :ne«icc$u:?2iijsana~ia;iso t§%§sy fine of Rs.5,ooo:-, and in defauit to pay
simpie imprisonment for fiwree months.
‘ out was fine amount, a sum of Rs.3,000I- sheik be paid to
V-..P\N.1–i=”‘.i\:iA.i’.nohan, as compensation. The bail and surety bonds of
” 5 oeiifioner stand dissolved. The accused-petitioner is directed to
V’ argzpear before the Iearnm Mmimate on 4.8.2068. Upon such
ii appearance, learned Magistrate shall implement the order of this
Court. If fire pefitioner faiis to appear before the learned Magiwate
on flwat day. are iwrned Magistrate shalt take elm to sewre he
see
presence of the accused for im of the otder of mis “”—-._
Court.
Office is directed to send the records affiwe Cwam-‘4.})’ei§i§:: 3
forthwith with a copy of this order.