THIMMAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The petitioner has challenged the order of conviction and sentence passed by the Trial Court as well as the Appellate Court praying this Court to set aside the judgment and order of conviction dtd. 9/12/2011 and sentence dtd. 15/12/2011 passed in C.C. No. 1153/2006 on the file of the Principal Civil Judge and JMFC, Chikkamagaluru, which is confirmed in Crl.A. No. 01/2012 by order dtd. 27/3/2013 on the file of the Principal Sessions Judge, Chikkamagaluru and consequently acquit the petitioner for the alleged offences.

(2.) The factual matrix of the case of the prosecution is that on 16/9/2005 at about 7.30 p.m. in SC/ST colony of Dambadahalli Village when P.W. 1 and P.W. 2 were there in the house, the accused tress-passed the house of P.W. 1 and P.W. 2 and abused P.W. 1 in a filthy language and assaulted her with a chopper on her left hand thumb and left leg knee and caused grievous injuries, which has resulted in fracture of tibia. The motive for committing the assault is that P.W. 1 got married to one Dharmesh, who is the brother-in-law of the accused as against the wishes of the accused. Based on the complaint, the police have registered the case at the first instance for the offence punishable under Ss. 448, 504 and 324 of IPC. During the course of investigation, came to know that there was a fracture and hence while filing the charge-sheet, instead of Sec. 324 of IPC invoked Sec. 326 of IPC. The accused was secured before the Trial Court and he did not plead guilty and hence the prosecution mainly relied upon the evidence of P.W. 1 to P.W. 7 and documents Exs. P.1 to 7. M.O. 1 and M.O. 2 are also marked. The Trial Court on appreciation of both oral and documentary evidence placed on record, convicted the accused for all the offences and substantive sentence of three years is imposed for the offence punishable under Sec. 326 of IPC and six months for the offence punishable under Ss. 448 and 504 of IPC. The Trial Court also ordered to pay the compensation of Rs.20,000.00 and in default of payment, to recover the same as per Sec. 431 of Cr.P.C. Being aggrieved by the judgment of conviction and sentence, an appeal was filed in Crl.A. No. 01/2012. The Appellate Court on re-appreciation of the evidence, allowed the appeal partly and confirmed the judgment of the Trial Court and ordered that the sentence shall run concurrently. Being aggrieved by the said judgment of conviction and sentence and confirmation, the present revision petition is filed.

(3.) The main contention of the learned counsel for the petitioner is that the petitioner had a child by name Sachin aged about 2 years as on the date of the incident and the child used to pass urine sitting in front of his house, which is the backyard portion of P.W. 1 house and hence there was frequent quarrel and in view of verbal exchange of words, the incident is said to have occurred. M.O. 1 chopper said to be the firewood cutter instrument is admitted by P.W. 1 that this kind of chopper used to be in everyone's house for cutting the firewood. It is emerged in the evidence that there was a ill-will with regard to marriage of P.W. 1 with the brother-in-law of the accused and the said marriage was taken place two years back and there was no any frequent quarrel to that effect and it is admitted that she visited her parents house for festival and the motive alleged is totally false. Admittedly, the relationship was strained between the accused and P.W. 1 and P.W. 2 and they were inimical towards the petitioner. Even though P.W. 3 and P.W. 4 have turned hostile, who are independent witnesses, both the Courts have relied upon the evidence of P.W. 1 and P.W. 2 and there is no corroboration. The injured also did not disclose the name of the petitioner when the injured was taken to the hospital and the same is not found in the wound certificate Ex. P.6 and the weapon was also not seized at the instance of the petitioner and the same is created. P.W. 1 and P.W. 2 are interested witnesses and their evidence is inconsistent and the same has not been considered by the Trial Court. The learned counsel would submit that though the prosecution contend that there was fracture, no x-ray was produced and Ortho pedic doctor has not been examined. P.W. 7 doctor only examined clinically and when the fracture is not proved and the offence is only simple in nature, under such circumstances Sec. 326 of IPC does not attract. The burden is on the prosecution to prove the nature of the offence under Sec. 326 of IPC that it is grievous in nature. Both the Courts failed to take note of the circumstances under which the incident was taken place and sentencing the petitioner for a period of three years is also harsh considering the gravity of the offence. The doctor also admitted that while cutting vegetables with vegetable slicer, P.W. 1 slipped accidentally and sustained injury cannot be ruled out and this aspect has not been considered by the Trial Court. The learned counsel would also submit that the incident was taken place almost 17 years ago and both the Courts failed to invoke the Probation of Offenders Act ('P.O. Act' for short).