Huluvadi G. Ramesh, J.@mdashAppeal is by the 1st and 2nd accused against the order of conviction and sentence passed by the II Addl. Sessions Judge, Gulbarga in Spl. Case NO. 157/2004 on 7.5.2009. In all about 8 persons were charge sheeted for the offence under Ss. 143, 144, 148, 324, 307, 109 r/w S. 34, IPC and also for the offence under S. 3(1)(x) and 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. The incident occurred on 24.12.2003 around 8.00 p.m. which was preceded by a quarrel around 4.00 p.m. between the complainant and accused Ravi in regard to metteling the road. The accused are said to have constituted into an unlawful assembly and around 6.00 p.m. once again and while Subash Neelalli and Nagendrappa were taking tea, accused persons holding deadly weapons, using words taking the name of the caste as ''madiga sule makkale'' and that they have become more egoistic and it has become too much on their part, threatened to take away their life. Accused assaulted one Subhash by an axe on the neck and caused bleeding injuries and accused Nagendrappa assaulted the complainant by means of a macchu causing bleeding injuries. Subhash due to the assault, became unconscious and went to coma and immediately both of them were treated in the hospital. The police, after investigation, have filed charge sheet for the above said offences. Learned Sessions Judge having framed charges against them and since they pleaded not guilty and claimed to be tried, examined in all about thirteen witnesses and got marked about sixteen documents. Also eight M Os were got marked like macchu, axe, etc. After the accused were examined under S. 313, Cr.PC, as their defense was total denial, learned Sessions Judge having heard the accused and the prosecution, having held that the accused formed into an unlawful assembly committed the offence, while acquitting the other accused, held only accused 1 and 2 as guilty of the offences and also convicted them for the offence under Ss. 324, 326, IPC. For the other offences they are acquitted against which, this appeal by accused 1 and 2.
2. Heard the counsel representing the parties.
3. At the outset, it may not be necessary to go through the verbatim deposition of the accused along with their version elicited in the cross-examination of the witnesses. It may be necessary to confine it to whether accused 1 and 2 have committed offence under S. 326, IPC as opined by the Sessions Judge.
4. Counsel for the appellants submitted these accused have been convicted for offence under S. 324 and 326 IPC and since the accused are in custody for more than three months, according to the counsel, that could be treated as substantial punishment and the prosecution is not able to prove against the accused 1-2 the offence under S. 326, IPC for which they have been convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/-.
5. Counsel representing the appellants has argued that in order to constitute offence under S. 326, IPC, necessarily there should be grievous hurt suffered by the injured. Though the doctor has opined that it is grievous injury but to form an opinion, substantial evidence has to be produced to the court like X-Ray and other material documents which would depict impairment of joint or bone as provided under S. 326, IPC and to go by the evidence of Dr A.K. Purohit/PW 13, it does not form an opinion that the injured suffered grievous hurt as per definition of S. 320 r/w S. 34, IPC. As such, punishment imposed holding the accused guilty of offence under S. 326 is untenable. Also he has relied upon the judgment in the case of Ayub Khan & Anr. Vs State of Karnataka - 2011 Crl. Reports 636 (Karnataka) to contend that in the absence of any X-Ray and their production before the Court, offence of grievous hurt cannot be said to be proved.
6. Learned counsel for the respondent submitted that though only the production of x-ray would be a corroborating evidence but the opinion of the doctor is cogent on examination of the very injured persons, he being convinced, he has deposed to the fact that the injured suffered grievous injuries and nothing worth is elicited in the cross-examination of the doctor so as to form an opinion that it is only an injury suffered and not grievous hurt and submitted that the Special Judge has taken a lenient view in the matter of sentencing the accused and that does not call for interference. Accordingly, he has sought for dismissal of the appeal.
7. With regard to the seizure of axe and macchu as per Ex. P2 and 3, PW 4 also supported the prosecution with regard to seizure of these two material objects. Apart from that, Ex. 5, 15 are the wound certificates issued by the doctor. So, that is corroborating the evidence of seizure of axe and also macchu which are deadly weapons and also the evidence of PWs 1 to 3 who are the injured witnesses. PW 1 has suffered a fracture in the said incident and in fact, the Doctor has formed an opinion that there is grievous injury suffered by PWs 12. S. 319, IPC defines ''hurt'' wherein any person causes bodily pain, disease or infirmity to any person and S. 320, IPC defines `grievous hurt'' as emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth or any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.
8. In the case on hand, as per the medical evidence, there is a fracture and injury has been caused by deadly weapon and there is privation of member i.e., skin and fracture of the leg being caused. However, the trial court has formed an opinion that there is no clear cut evidence on record and that the injuries would have been caused by MOs like axe and macchu. Of course, it is also an alternative opinion that such injuries could have been caused by stone or stick. The doctor-PW 13 has stated that injured Subhash has a history of assault and it is an assault by rod or stick. Looking into the evidence of panchas and also the version of the witnesses and also the seizure panchanama, it is seen the investigating officer has not sent the seized articles to FSL for examination and opinion and accordingly opined that MO 1-2 could have been used for the commission of the offence. The incident is shown to have occurred on the spur of the moment with regard to laying the road/mettling the road. In the absence of proof, when the incident has taken place though with knowledge but without there being any motive for the commission of the offence, rightly the trial court has taken a lenient view in the matter.
9. It is the argument of the counsel representing the petitioner accused, in order to attract the offence under S. 326, IPC on such semblance of injury normally the period of hospitlisation would extend up to twenty days but in the case on hand, injured was hospitalized for eight days as such offence under S. 326, IPC would not be attracted to hold the accused guilty of the offence and argued that there must be any hurt which endangers life and has occurred during the space of twenty days by severe body pain which is unable to be tolerated by an ordinary person and that at the most, it may be a case for S. 324, IPC and not S. 326, IPC. Even the trial court has formed an opinion that the seizure of articles viz., axe and machhu has not been proved as the panchas to the seizure panchanama are relatives of the injured and their evidence cannot be weighed and accordingly contended it is some other articles and not these articles used by them. Since the trial court has formed an opinion that seizure of the weapon is not proved and also such injury could have been caused by a stone or rod, even the seizure panchanama is not proved and the injury suffered by the injured could not be treated as an injury under S. 326 as grievous hurt. The opinion formed by the trial court is, MOs 1-2 have caused injury as per the opinion of PW 13/doctor and that injury could have been sustained by a stone or stick. But then, necessarily the seizure of the weapon could not have been done as stated by the witnesses and accused may have voluntarily caused grievous hurt other than from deadly weapon (dangerous weapon) which may fall within the definition of S. 325, IPC. It is also a compoundable offence.
10. In that view of the matter, while reducing the offence under S. 326, IPC to that of S. 325, IPC, though grievous injury has been suffered by the victim as per the doctor''s evidence, the sentence would be reduced to six months from one year having regard to the facts and circumstances of the case that the incident is not preceded by any motive and it would attract the offence under S. 325, IPC. Also, the offence is compoundable, the accused are first time offenders and prosecution has not produced any material to prove that they were habitual offenders. Thus, the accused are sentenced to undergo simple imprisonment for six months with fine as ordered by the trial judge. Since the fine amount has already been deposited, it is for the accused to serve the remaining part of sentence while extending the benefit of set off as per S. 428, Cr.PC for the period of detention already undergone. Further, if the prosecution witness viz., the injured comes forward to compound the offence even at this stage, it is for the accused to pursue the matter to avoid serving the remaining part of the sentence as ordered. Appeal is allowed in part.
