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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 8TH DAY OF JANUARY 2015

BEFORE

THE HON’BLE MR. JUSTICE K.N.PHANEENDRA

CRIMINAL REVISION PETITION No.200034/2014

BETWEEN

RANGAYYA,
S/O. SHIVAPPA,
AGE: 23 YEARS,
OCC: STUDENT,
R/O. H. NO. 2-5-77,
BAPUNI ONI,
DEODURGA,
DEODURGA TALUK,
RAICHUR DISTRICT. ... PETITIONER

(BY SRI. SHIVASHARANA REDDY, ADVOCATE)

AND

THE STATE THROUGH

DEODURGA P.S.
RAICHUR DISTRICT.
REP. BY ADDL. S.P.P.
… RESPONDENT

THIS CRL. REVISION PETITION IS FILED UNDER

SECTION 397 R/W. 401 OF CR.P.C. PRAYING TO SET
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ASIDE THE ORDER DATED 10.04.2014 IN CRIMINAL

APPEAL NO.40/2013 PASSD BY THE I-ADDL. SESSIONS
JUDGE AT RAICHUR CONFIRMING THE ORDER DATED
10.10.2013 IN C.C. NO.111/2009 PASSED BY JUDICIAL
MAGISTRATE FIRST CLASS AT DEODURGA, IN THE
INTEREST OF JUSTICE AND EQUITY.

THIS PETITION COMING ON FOR ADMISSION THIS

DAY, THE COURT MADE THE FOLLOWING:

ORDER

The appellant has called in question the judgment

passed in C.C. No.111/2009 by JMFC, Deodurga.

2. The appellant was convicted under Section

326 of IPC and sentenced to undergo Simple

Imprisonment for two years and to pay fine of

Rs.5,000/- and in default to undergo Simple

Imprisonment for six months. The said judgment was

confirmed in Criminal Appeal No.40/2013 by the I-

Additional Sessions Judge, Raichur, vide judgment

dated 10.04.2014.

3. The brief factual matrix of the case as could

be culled-out from the records are that, -

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On 13.07.2008, when the complainant by name

Ravi Prakash, son of Rangappa was proceeding along

with his friends Mounesh and Ramesh from a Kirani

Shop near the bus stand at Deodurga, Accused Nos.1

to 3 suddenly came there and started quarrelling with

the complainant and Accused No.1 took-out a stone and

assaulted on the face and mouth of the complainant,

thereby he sustained grievous and simple injuries. This

incident was witnessed by the friends of the

complainant namely Munesh and Ramesh. They in fact

pacified the quarrel and thereafter the complainant was

admitted to the hospital, wherein he took treatment.

The Deodurga police have investigated the matter and

submitted the charge sheet for the offences punishable

under Sections 341, 504, 506, 326 r/w. section 34 of

IPC. The Trial Court has in fact framed charges for the

above said offences and ultimately came to the

conclusion that the prosecution was able to prove the

guilt of Accused No.1 beyond reasonable doubt for the

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offence punishable under Section 326 of IPC and

consequently convicted and sentenced Accused No.1 for

the said offences. However, the Trial Court found

insufficient materials so as to convict Accused Nos.2 &

3, as such, it recorded the judgment of acquittal so far

as Accused Nos.2 & 3 are concerned. It appears, the

judgment of the Trial Court so far as Accused Nos.2 & 3

has reached its logical end, as the State Government did

not prefer any appeal against the said judgment of

acquittal.

4. The prosecution in order to prove the guilt of

the accused (petitioner herein), examined seven

witnesses as PWs. 1 to 7 and got marked the documents

at Exs. P1 to P14 and one material object as MO.1-

Stone. The accused was also examined under Section

313 of Cr.P.C., who infact gave no explanation so far as

the incident is concerned except denying the allegations

against him.
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5. On appreciating the oral and documentary

evidence, the Trial Court has recorded the judgment of

conviction and sentence.

6. The appellate Court on re-appreciation of

the evidence of PWs. 1 to 3 coupled with the evidence of

the Doctor, has come to the conclusion that, on facts

the appellant was unable to establish that there was

any serious discrepancy or illegality or irregularity

committed by the Trial Court in convicting the accused

and sentencing him accordingly. Though some

discrepancies and contradictions brought to the notice

of the appellate Court emerging from the statements of

the witnesses, but the appellate Court has considered

them as very meager and insignificant. Therefore, on

re-evaluation of the factual aspects of the case, the

Appellate Court has come to the conclusion that there is

no ground to interfere with the judgment of the Trial

Court, as such, it confirmed the judgment of conviction

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and sentence passed by the Trial Court against which

order, the petitioner has preferred this revision petition

before this Court.

7. The powers of the revisional Court is very

limited. It cannot appreciate the factual aspects of the

matter as if an Appellate Court. The Court has to see

whether there is any serious illegality or irregularity

committed by the Trial Court or the Appellate Court in

recording the judgment of conviction and awarding

sentence to the accused.

8. I have carefully perused the judgment of the

Trial Court as well as the Appellate Court. The Trial

Court in fact, appreciated the evidence of the witnesses

in detail considering all the allegations made against

the accused and also the grounds urged during the

course of cross-examination of the witnesses and after

relying upon certain decisions, the Court has come to

the conclusion that there is no reason to disbelieve the

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evidence of PW.1, who is the injured eye-witness. The

Appellate Court has also even after re-evaluation of the

evidence, found that his evidence is trust-worthy for

acceptance. Even on cursory reading of the evidence of

the witnesses, it is clear from the evidence of PW.1 that

on the date of the incident, he was proceeding along

with his friends near new bus stand at Deodurg and

when they reached near Bapuji Lane near Ravi

Cassette Shop, all the accused persons who were sitting

there, suddenly raised voice against PW.1-Complainant;

Accused Nos.1 & 2 started talking with the complainant

indecently; when the injured told that they must give

respect to the seniors, then immediately Accused No.1

took-out a stone and assaulted him on his mouth and

face and caused severe injuries. Though he has been

subjected to a detailed and lengthy cross-examination,

but so far as receiving the injuries by PW.1 has not

been denied. On the other hand, it is suggested that

the injured must have sustained injury during a fall

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from the vehicle. Even such suggestion has been made

to the Doctor, which clearly goes to show that

sustaining of the injury by the complainant has not

been denied. Some contradictions have been elicited

with regard to the size of the stone used; PW.1 going to

the hospital and taking treatment, Even though, some

minor contradictions are there, but, in my opinion, the

substratum or core of the prosecution case has not

been disturbed. During the course of cross-examination,

PW.2-Mounesh and PW.3-Ramesh who are the friends

of PW.1 have also deposed with regard to the incident,

sustaining of the injury by the complainant. Even, as I

have said, during the course of cross-examination some

minor contradictions were elicited, but they are not

sufficient to totally disprove the case of the prosecution.

The Doctor, who was examined, also deposed with

regard to the injuries sustained by the complainant.

Therefore, looking to the above facts and circumstances,

there is no reason to disbelieve the version of the

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injured about the incident. The petitioner is not able to

show any satisfactory material in order to totally

discard the evidence of PWs. 1 to 3. Therefore, I do not

find any strong reasons to interfere with the judgment

of the Trial Court and Appellate Court so far as

conviction recorded against the petitioner.

9. Learned counsel for the petitioner has

strenuously contended before this Court that, though

the conviction of the revision petitioner recorded by the

Trial Court is based on the evidence on record, but the

Trial Court as well as the Appellate Court have directed

themselves in wrong path in convicting the accused for

the offence punishable under Section 326 of IPC rather

the accused could have been convicted him for the

offence punishable under Section 324 of IPC only. He

further contended that, if the evidence of the Doctor and

the evidence of PW.1 is read in its proper perspective, it

will not be sufficient to draw a definite inference that

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the prosecution has proved beyond reasonable doubt

that the offence under Section 326 IPC has been

committed by the petitioner. Therefore, he requests the

Court to consider this particular aspect in order to

reduce the sentence from Section 326 of IPC to Section

324 of IPC.

10. PW.6, the Doctor has unequivocally stated

with regard to the injuries sustained by him.

The Doctor-PW.6, in his evidence has categorically

stated that he examined PW.1 on 13.07.2008 and found

that he has suffered the following injuries on his

person:-

i) Contusion on the left side of the Cheek- Maxillary

region of size 3”x2”. Swollen, face disfigured,
movement restricted and painful; speech restricted
and altered. 1 fracture of maxilla at incissors.

ii) Lacerated wound on the temporo – frontal region

of size 3”x0.5”, muscle deep; Dark red coloured,
painful and tender.
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11. PW.6, the Doctor referred to Ex.P3-Wound

Certificate and stated that he has issued Ex.P3. Ex.P3-

wound certificate discloses that PW.1 was referred to

District Hospital, Raichur, for further treatment. X-ray

report was received on 20.10.2008 from Dr.Tirumala

Rao, MDS, Assistant Professor and on its reference he

found that the patient was forced to take x-ray privately

outside, which revealed fracture of left upper masillary;

central incissors and lateral incissor teeth. Ultimately,

PW.6 opined that Injury No.1 was grievous and Injury

No.2 was simple in nature.

12. Though Ex.P3 discloses that there is a

fracture, but as rightly contended by the learned

counsel in order to substantiate this fracture, x-ray

report has not been produced. Even the x-ray number

has not been mentioned in Ex. P3, though it is stated

that the x-ray was taken in a private hospital. The

Doctor during the course of cross-examination has

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stated that the x-ray was given to the Investigating

Officer through the police constable, but no explanation

is offered by the Investigating Officer as to why the x-ray

handed over to him, has not been produced before the

court. Further , added to that, though PW.1 has

stated in his evidence that some of his teeth were

twisted and he has lost some teethes, etc. but, PW.6-

Doctor has stated that he has not suffered any injury

inside the mouth and no tooth were broken. Therefore,

there is some discrepancy with regard to explaining the

injury sustained by PW.1 as narrated by PW.6-Doctor

in his evidence. In this background, it is worth to note

a decision of the Division Bench of this court cited by

the learned counsel in the case of in State Vs.

Sheenappa Gowda and Others [2011 (4) KCCR

2759], wherein this Court, while dealing with the same

set of facts at Paras 10 and 11 has narrated that non-

production of the x-ray report before the court is fatal to

the prosecution and if it is not produced, it cannot be

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said that the prosecution has proved the case of

fracture or grievous injury beyond all reasonable doubt.

Giving such benefit, the court has reduced the sentence

from 326 to 324 of IPC. It is worth to reiterate the

observations made by this court at paras-10 & 11 of

the said decision, which reads as under:-

10. PW.1 Dr. Sandeep, who has

examined PWs.3 & 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 PW.3 are simple in nature
according to the evidence of PW.1. However,
PW.1 has stated in his deposition that PW.4-
Shsheela has sustained the following
injuries:-

1. Lacerated wound ½ inch x 1½ inch x ½

inch over the forehead;

2. Lacerated wound over the little finger left

side at the proximal LP. Found measuring
¾ inch x ½ inch x ½ inch with bleeding on
the dorsal aspect with fracture of middle
phalanx.
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3. Abrasion over the middle of right thigh

anterior aspect.

4. Abration over the left chin.

He has further deposed that Injury No.2 as

grievous in nature and the other injuries were
simple in nature.

11. 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 rests 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
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has been caused, it is necessary for the

prosecution to prove the same beyond
reasonable 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 that
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, the same would not dispense with
the production of 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
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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
IPC and the offence committed by them falls
within the ambit of Section 324 of IPC, is
justified.”

13. As the facts and circumstances of this are

similar to the case of the said decision, the same yard-

stick has to be applied to the case on hand. Though

the Doctor has stated that, through the private concern

the x-ray was taken and on the basis of which, he

issued Ex.P3-wound certificate, but said x-ray has not

been produced before this court. In view of the

discrepancy in explaining the injuries sustained by

PW.1 during the course of his cross-examination, in my

opinion, the benefit of such doubt has to be extended in

favour of the accused (petitioner herein). In this case

also, the x-ray report is not available before the court

though the patient was referred to take-out x-ray. In the

absence of x-ray report before the court and in the

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absence of any explanation by the Investigating Officer

as to why the x-ray which was given to him by the

Doctor has not been produced before the court and

such benefit of discrepancy or doubt has to be given in

favour of the accused.

14. In the above said circumstances, in this

case also, I am of the opinion that the prosecution has

failed to establish the case against the petitioner beyond

reasonable doubt, that he has committed the offence

under Section 326 of IPC. On the other hand, it can be

safely held that the prosecution, beyond reasonable

doubt, proved against the accused that, he has

committed the offence under Section 324 of IPC.

15. Now coming to the sentence passed against

the accused by the trial Court, the trial Court has

awarded the sentence of fine of Rs.5,000/- and imposed

the sentence of imprisonment for two years against the

petitioner/accused. The petitioner belonging to Harijan

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Community. Both the victim as well as the petitioner

are belonged to Deodurga Village in Raichur District.

The statements of the accused show that he is a

student, aged about 19 years as on the date of

committing offence. The offence was taken place in the

year 2009. Already nearly seven years have been

elapsed from the date of the offence.

16. Looking to the above facts and

circumstances of the case and the nature of injuries

sustained by PW.1-complainant, and also looking to the

background of the accused, in my opinion, sentencing

the accused to undergo imprisonment may not be

proper at this stage. However, looking to the gravity of

the offences alleged, the fine imposed against the

accused by the trial Court has to be enhanced.

17. As PW.1 has suffered several injuries to his

face, he suffered dis-figrement to his face and he has

been admitted to the hospital for treatment. Therefore,

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considering all these facts including the expenditure

borne by the petitioner herein towards treatment, I am

of the opinion that, if the fine imposed by the trial Court

is enhanced to Rs.25,000/-, it would meet the ends of

justice. Therefore, instead of sentencing the accused

for imprisonment, it is just and necessary to pass an

order imposing sentence of fine of Rs.25,000/- against

the accused. Accordingly, the following order is

passed:-

18. The judgment of conviction and sentence

passed by the trial Court, confirmed by the Appellate

Court is hereby modified. The Revision Petitioner is

convicted for the offence punishable under Section 324

of IPC and sentenced to pay fine of Rs.25,000/- in

default to payment of fine, he shall undergo

imprisonment for a period of six months.

If he has already deposited the fine amount of

Rs.5,000/- as ordered by the trial Court, he is directed

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to deposit the remaining fine amount of Rs.20,000/-

within one month from the date of receipt of a copy of

this order.

Out of the said amount, a sum of Rs.5,000/- is

ordered to be paid to the State and the remaining

amount of Rs.20,000/- shall be paid to PW.1 as

compensation.

Accordingly, this Revision petition is disposed of.

Sd/-
JUDGE

KGR*