® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE13H DAY OF APRIL2023BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL REVISION PETITION No.306 OF2013C/w. CRIMINAL REVISION PETITION No.1186 OF2012In Crl.R.P.No.306/2013 : BETWEEN: The State by Udupi Town Police. .. Petitioner ( By Sri Kiran S. Javali, SPP ) AND: Sri Sachu @ Sathish, Aged about 37 years, S/o P.Thaniya Poojary, Bottala, Kalmady, Udupi-576 101. .. Respondent ( By Sri S.K.Acharya, Advocate ) This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C. praying to set aside the order of sentence dated 16.11.2012, passed by the Sessions Judge, Udupi district, Udupi, in Criminal Appeal No.81 of 2007 modifying the sentence from 3 years to 1 year for the offence punishable under Section 326 of IPC and confirm the order of conviction and sentence dated 18.06.2007, passed by learned II Addl.Civil Judge & JMFC, Udupi in C.C.No.4846/2003 imposing RI for 3 years on the respondent for the offence punishable Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 2 under Section 326 of IPC, by allowing this Criminal Revision Petition and to pass such other order or orders as this Hon’ble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity. In Crl.R.P.No.1186/2012 : BETWEEN: Sri Sachu @ Sathish, S/o P.thaniya Poojary, Aged about 31 years, R/o Bottala, Kalmady, Udupi Dist. .. Petitioner ( By Sri S.K.Acharya, Advocate ) AND: The State of Karnataka, Represented Udupi Town Police Station, Represented by its State Public Prosecutor, High Court Buildings, Bangalore. .. Respondent ( By Sri Kiran S. Javali, SPP ) This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C. praying to set aside the judgment and the order dated 18.06.2007, passed by learned Civil Judge & JMFC, Udupi in C.C.No.4846/2003, thereby convicting the petitioner for the offence punishable under Sections 341 of IPC and sentenced him to pay a fine of Rs.500/- and in default, to undergo imprisonment for a period of 15 days and also convicting under Section 326 of IPC and sentencing him to undergo a rigorous imprisonment for a period of 3 years and to pay fine of Rs.5,000/- and in default to undergo imprisonment for a period of 6 months and also the judgment and order dated Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 3 16.11.2012, passed by the Sessions Judge, at Udupi, in Criminal Appeal No.81/2007, thereby modifying the sentence passed by the trial Court by reducing the sentence for a period of one year rigorous imprisonment, in the ends of justice. These Criminal Revision Petitions having been heard and reserved for Orders on 28.03.2023 through Physical Hearing/Video Conferencing Hearing, coming on for pronouncement of Orders this day, the Court made the following: COMMON
ORDERThe petitioner in Criminal Revision Petition No.1186/2012 was tried as accused No.1 by the Court of learned II Addl.Civil Judge (Jr.Dn.,) & J.M.F.C., Udupi, (hereinafter for brevity referred to as the `trial Court') in C.C.No.4846/2003, for the offences punishable under Sections 341, 326, 109 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as the `IPC') and was convicted for the offences punishable under Sections 341, 326 of IPC by the judgment of conviction and order on sentence dated 18.06.2007 and was sentenced accordingly. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 4 2. The summary of the case of the prosecution in the trial Court was that, on the date 24.05.1998, at about 8.50 p.m., near service Bus Stand in Udupi Town, within the limits of complainant-Police Station, the accused No.1, who is the petitioner in Criminal Revision Petition No.1186/2012 and respondent in Criminal Revision Petition No.306/2013, joined by other accused, in furtherance of their common intention, armed with deadly weapons, wrongfully restrained CW-1 Anil Shenoy and CW-2 Varadaraj Shenoy and assaulted them. Due to such an assault, CW-1 Anil Shenoy sustained grievous injuries. He was shifted to K.M.C. Hospital, Manipal by the people gathered there. An intimation to the police was forwarded as per Ex.P-6 by the Medical Officer on 25.05.1998. The police after recording the statement of complainant on 25.05.1998, registered a crime in their Station Crime No.92/1998 against six accused, including the present accused No.1, who is the petitioner in Criminal Revision Petition No.1186/2012, for the offences punishable under Sections 143, 147, 148, 341, Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 5 324, 326, 109 read with Section 149 of IPC. However, after investigation, the charge sheet was filed against three accused, including accused No.1, for the offences punishable under Sections 341, 324, 326, 109 read with Section 34 of IPC.
3. The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined eleven witnesses from PW-1 to PW-11, got marked documents from Exs.P-1 to P-10 and produced four material objects from MO-1 to MO-4. However, neither any witness was examined nor any documents were got marked on behalf of the accused. After trial, the trial Court by its judgment of conviction and order sentence dated 18.06.2007, acquitted accused Nos.2 and 3 of the offences alleged against them, however, it convicted accused No.1 for the offences punishable under Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 6 Sections 341 and 326 of IPC and ordered him to undergo imprisonment for a period of one month and also to pay a fine of `500/- and in default of payment of fine amount, to undergo imprisonment for a further period of fifteen days for the offence punishable under Section 341 of IPC. It further sentenced accused No.1 to undergo rigorous imprisonment for a period of three years and to pay a fine of `5,000/- and in default of payment of fine amount, to undergo imprisonment for further period of six months for the offence punishable under Section 326 of IPC.
4. Aggrieved by the said judgment of conviction and order on sentence, accused No.1 preferred an appeal in Criminal Appeal No.81/2007, in the Court of learned Sessions Judge, Udupi (hereinafter for brevity referred to as `Sessions Judge’s Court’), which after hearing both side, by its impugned judgment dated 16.11.2012, though dismissed the appeal, however, the sentence of rigorous imprisonment for a period of three years imposed on accused No.1 by the trial Court for the offence punishable Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 7 under Section 326 of IPC was reduced to one year rigorous imprisonment. The other sentence ordered by the trial Court remained undisturbed.
5. It is challenging the said reduction of sentence of imprisonment by the Sessions Judge’s Court, the State has preferred Criminal Revision Petition No.306/2013, however, the accused No.1 has filed Criminal Revision Petition No.1186/2012, challenging the confirmation of his conviction for the offences punishable under Sections 341 and 326 of IPC by the learned Sessions Judge’s Court.
6. The trial Court and the Sessions Judge’s Court’s records were called for and the same are placed before this Court.
7. Heard learned State Public Prosecutor for the State and learned counsel for the accused who are physically present in the Court. Perused the materials placed before this Court, including the trial Court and Sessions Judge's Court records. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 8 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
9. After hearing the learned State Public Prosecutor and the learned counsel for the accused, the points that arise for my consideration in this revision petition are: (i) Whether the impugned judgment passed by the Sessions Judge’s Court in Criminal Appeal No.81/2007 suffers with any illegality, irregularity, perversity or error, as such, deserves to be set aside and the accused No.1 Sri Sachu @ Sathish deserves to be acquitted from the offences punishable under Sections 341 and 326 of the Indian Penal Code, 1860,?. (ii) Whether the impugned judgment passed by the Sessions Judge’s Court in Criminal Appeal No.81/2007, dated 16.11.2012, in reducing the sentence from three years rigorous imprisonment to one year rigorous imprisonment for the offence punishable under Section 326 of Indian Penal Code, 1860, warrants any interference at the hands of this Court?. (iii) What order?. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 9 10. Among the eleven witnesses examined by the prosecution, PW-1, PW-3, PW-4 and PW-5 were projected as eye witnesses to the alleged incident. PW-1/CW-2 Varadaraj Shenoy and PW-3/CW-1 Anil Shenoy were projected as injured in the alleged incident. PW-1/CW-2 Varadaraj Shenoy and PW-3/CW-1 Anil Shenoy, who are the brothers and admittedly working as Bus Agents in the service Bus stand at Udupi, have stated that they know the accused. While these two persons were booking the tickets to Annapurna Bus which was scheduled to go to Shivamogga from Udupi on 24.05.1998, at about 11.50 a.m., the accused No.1, joined by the other accused, went there and objected for they (PW-1 and PW-3) booking the tickets for the said bus. These witnesses have stated that, at the instructions of owner of the bus, they were booking the tickets, however, the accused No.1 threatened them of dire consequences. The bus left for Shivamogga in the afternoon at 2.20 p.m. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 10 Both the witnesses have further stated that, on the same night at about 8.50 p.m., both of them after having a cup of tea in a mobile tea shop near Bus Stand, while proceeding towards Bus Stand, accused No.1 went there on a Kinetic Honda motorcycle and prevented them from proceeding further. He was holding a handheld axe in his hand. With the said axe, he assaulted PW-3 Anil Shenoy on the back side of his head and also near his left shoulder. PW-1 rushed to prevent accused No.1 from assaulting his brother, however, accused No.1 assaulted him also on his head. Seeing this incident, CW-3, CW-4 and CW-5 came to the spot. According to PW-1, even CW-6 and CW-7 also came to the spot. Seeing that these persons were rushing to the spot, the accused No.1 left the place on his Kinetic Honda motorcycle. PW-1 has stated that the accused had come on a Kinetic Honda two wheeler bearing registration No.CKM-8686. PW-1 has also stated that, while accused No.1 was assaulting them, the other two accused i.e., Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 11 accused Nos.2 and 3 were surrounding them and they were witnessing the incident. Both the witnesses further stated that CWs.3 to 5, who had rushed there, shifted them to hospital at Manipal. In the K.M.C. Hospital at Manipal, both of them were treated as inpatient. Both the witnesses have stated that at the instigation and abetment of accused Nos.2 and 3, the accused No.1 had assaulted them. PW-3 has stated that, he sustained bleeding injury and the cloths worn by him were got stained with blood. He also stated that the police from Udupi visited him in the hospital and recorded his statement. PW-3 identified his statement at Ex.P-2. Both the witnesses have identified the handheld axe alleged to have been used in the commission of crime by accused No.1 at MO-1, the shirt worn by PW-3 at the time of the incident at MO-2, the pant worn by PW-1 at the time of the incident at MO-3 and the Kinetic Honda motorcycle said to have been used by accused No.1 at MO-4. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 12 Both these witnesses were subjected to a detailed cross-examination from the accused side, wherein, the witnesses adhered to their original version and did not allow the defence counsel to weaken their evidence given in their examination-in-chief. They also denied a suggestion made to them in their cross-examination that three unidentified persons, coming in a Maruti Car, had assaulted both of them and inflicted the injuries upon them. Both the witnesses have stated that, it is in connection with booking of the tickets to the busses, the accused No.1 initiated quarrel with them and due to that grouse, had assaulted them, inflicting injuries upon them.
11. PW-2/CW-3 Manjunath Shenoy, the elder brother of PW-1 and PW-3, in his evidence has stated that, on the date of the incident, in the afternoon, while his two brothers i.e., PW-1 and PW-3 were booking the tickets in the afternoon for Annapurna Bus which was going to Shivamogga from Udupi in the service Bus Stand at Udupi, the accused had raised an objection and had quarreled with Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 13 them. They did not listen to these persons justification that they were booking the tickets at the instructions of owner of the bus. However, after putting threat to these persons, the accused had left the place. PW-2 further stated in his examination-in-chief that on the very same night, at about 8.45 p.m., while he was at Bus stand along with his younger brothers, accused No.1 joined by other four persons, came there and assaulted his brothers with axe which he was holding and inflicted injuries to them. At that time, one Umesh, Raja, Santhosh, Devaraj, CW-4 and CW-5 were all present. Accused No.1 left the place in his Kinetic Honda motorcycle. The witness stated that, he shifted the injured to Manipal Hospital for their treatment. The witness also stated that, it is with respect to ticket booking matter, the accused No.1 had assaulted his brothers. The accused No.1 has committed the said act at the abetment of accused Nos.2 and 3. The witness has identified MO-1 to MO-4 in the Court. Stating that while seizing the clothes worn by his brothers at the Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 14 time of the incident, the police have drawn a seizure panchanama, the witness has identified the said panchanama at Ex.P-1. In his cross-examination, PW-2 has given some more details about the altercation between accused No.1 and his brothers said to have taken place in the afternoon of 24.05.1998 with respect to booking of tickets. He stated that, he and his brothers did not have any personal enmity against the accused, however, the accused were not liking these persons booking the tickets as Bus Agents, including to Annapurna bus. About the incident said to have been occurred on the night of 24.05.1998 is concerned, the witness has stated that, he is not aware as to how long it took for the accused to inflict injuries upon his brothers. He stated that by the time he reached the spot, both his brothers had fallen on the ground. Both of them were found unconscious, as such, he immediately shifted them to hospital at Manipal. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 15 He also stated that, by the time he went to the spot, the accused Nos.1 to 3 had already left the place. By stating so, the witness has shown that though he claims to be an eye witness to the alleged incident of altercation said to have taken place between himself, his brothers with the accused on the same day afternoon, however, he was not an eye witness to the incident of assault upon PW-1 and PW-3 on the same night.
12. Learned counsel for the accused (petitioner in Criminal Revision Petition No.1186/2012) vehemently submited that the evidence of PW-1, PW-2 and PW-3 cannot be believed since they are interested witnesses. Merely because PW-1, PW-2 and PW-3 are said to be the brothers, by that itself, it cannot be held that they are interested witnesses. It is to be shown that all those three witnesses had interest in ensuring conviction to the accused. According to the prosecution, among these three witnesses, PW-1 and PW-3 were injured in the incident, as Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 16 such, those two witnesses are injured eye witnesses than interested witnesses. However, since PW-1, PW-2 and PW-3 are brothers inter se, it is to be seen as to whether the case of the prosecution is corroborated with any other independent witnesses.
13. PW-4/CW-4 Prakash Kamath in his evidence has stated that, he knows both PWs.1 to 3, as well the accused. On the date of the incident i.e., on 24.05.1998, at about 8.45 p.m., he and CW-5 were in the Bus Stand, booking the tickets for the buses, at that time, he heard loud noises in the Bus Stand. Hearing the same, they rushed to the said place and saw that accused No.1 was holding a handheld axe and was assaulting CW-1 on the back side of his head and CW-1 fell down. When CW-2 attempted to prevent accused No.1, the said accused assaulted CW-2 also with the same axe and then the accused ran away from the place on his Kinetic Honda motorcycle. The witness has stated that, along with accused No.1, two more persons were there. The witness has stated that, on the Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 17 same day in the morning also, an altercation had taken place. He also stated that, with respect to booking of tickets for the busses, an altercation in the afternoon had also taken place. At the abetment of accused Nos.2 and 3, the accused No.1 had assaulted CW-1 and CW-2. The witness further stated that, joined by CW-3 and CW-5, he shifted CW-1 and CW-2 to K.M.C. Hospital at Manipal. The doctor got them admitted as inpatient. He also stated that, on the next day, the police came to the place of offence and drew a scene of offence panchanama and the police also enquired him. The witness has identified the scene of offence panchanama at Ex.P-3 and his signature at Ex.P-3(a). He stated that the police also seized the Kinetic Honda motorcycle bearing registration No.CKM-8686 used by accused No.1 for the commission of the crime by drawing a seizure panachanama as per Ex.P-4. The witness has identified the said vehicle at MO-4 and the axe at MO-1. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 18 In his short cross-examination from the accused side, some more details about the incident and the presence of other people in the circumstance were elicited, however, his evidence that he was an eye witness to the incident could not be shaken.
14. PW-5/CW-5 Krishna Prasad has stated that he knows the accused and CWs.1 to 4. He is also working as Bus Agent at Udupi Bus Stand. He has stated that he knows about the incident of altercation that had taken place in the morning on 24.05.1998 between the accused and CW-1 and CW-2. He has also stated that once again the incident took place on the same day evening at about 8.45 p.m. He further stated that while he was coming along with CW-4, he heard the voices of CWs.1 and 2. When he saw, he noticed both CW-1 and CW-2 sustaining some injuries, were running. He noticed that CW-1 had sustained injuries to his back side of head and left shoulder and CW-2 sustained injuries upon his head. The witness has stated that, he shifted the injured to K.M.C. Hospital at Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 19 Manipal. However, he stated that he did not see as to who had assaulted. Since the prosecution has projected him as an eye witness, but, this witness has stated that he had not seen the assailants, the witness was treated as hostile and the prosecution was permitted to cross-examine him. Even in his cross-examination also, he stated that he has not seen accused No.1 assaulting CWs.1 and 2 with handheld axe, however, he stated that after seeing him and PW-4 coming, the accused No.1 left the place on his motorcycle.
15. From the above evidence of PW-1 to PW-5, it is established that PW-1, PW-2 and PW-3 are brothers inter se and all of them were doing work of ticket booking agents for the busses in the service Bus Stand at Udupi. In the cross-examination of these witnesses, particularly, in the cross-examination of PW-1, it has also come out that accused Nos.1 to 3 were also working as ticket booking Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 20 agents for several busses. In the evidence of any of the above witnesses, it was not attempted to show that no altercation between PWs.1 to 3 and accused, particularly, accused No.1, had taken place in the morning between 11.45 a.m. to 11.50 a.m. on the date 24.05.1998, on the other hand, it was attempted to show that the dispute among the bus ticket booking agents at Udupi about booking of the tickets to the buses are quite common. However, PWs.1 to 4 though admitted that occasionally objections by some ticket booking agents to the act of other ticket booking agents may be there, but, not an altercation as had occurred in the morning of 24.05.1998. Thus, the occurrence of incident of altercation or dispute between PWs.1 to 3 and the accused in the morning of 24.05.1998, at service Bus Stand, Udupi, with respect to booking of tickets to Annapurna bus scheduled to go from Udupi to Shivamogga, stands proved.
16. It is also proved from their evidence that, in the said altercation that took place in the morning, the accused Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 21 had threatened PW-1 and PW-3 before leaving the place. It was on the same day evening at about 8.50 p.m., the accused No.1 Sri Sachu @ Sathish is said to have found PW-1 and PW-3 coming from a mobile tea shop near service Bus Stand, Udupi and wrongfully restrained them and also assaulted them with an axe which he was holding.
17. The evidence of PW-1 and PW-3 has come uniformly and with consistency with respect to the said incident of assault upon PW-1 and PW-3 by accused No.1 on that evening. The evidence of these two witnesses has come in a normal manner without any exaggeration. Both of them have stated that, initially accused No.1 after restraining PW-1 and PW-3 from proceeding further, assaulted PW-3 Anil Shenoy. It is only when PW-1 Varadaraj Shenoy attempted to prevent accused No.1 from further assaulting PW-3, it was then accused No.1 assaulted PW-1 also with the same axe. Thus, both these witnesses have given a clear account of how the incident began and continued. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 22 18. The place of incident was a public place near service Bus Stand and even according to PW-1 and PW-3, there were other persons also in the place witnessing the alleged incident. PW-1 and PW-3 have given approximate number of persons said to have been present at the place of the incident and nearby. It is taking the said aspect of presence of other persons, learned counsel for the accused in his argument submitted that, when there were the presence of considerable number of independent witnesses, the prosecution should have examined any of those witnesses. The said argument of learned counsel for the accused though appears to be a sound argument, but, it cannot be forgotten of the fact that the accused who were said to be three persons as per the charge sheet, were also doing the very same activity as that of PWs.1 to 3 as bus ticket booking agents. According to PWs.1 to 3, accused No.1, apart from doing just a bus ticket booking agent, was also the Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 23 owner of two busses. Therefore, even though the people in quite good number were said to have gathered in the place, but, it is not uncommon for them to keep themselves away from giving any statement to the police and cooperating in the investigation. It is common to them to keep themselves aloof from taking the side of any of the parties or even giving the statement to the police about the incident. As such, merely because other persons said to have gathered in the incident are not said to have been examined by the prosecution, the same would not make the evidence of PW-1 to PW-5 disbelievable, provided their evidence proves to be trustworthy.
19. PWs.1 and PW-3 are injured witnesses in the incident. Their evidence that they were injured in the incident at the assault of accused No.1 is not only supported by the evidence of independent witness i.e., PW-4, but, also by the medical evidence of PW-11 Dr.Ranjith Verghees, who based on the medical records has given the evidence that both PWs.1 and 3 were examined Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 24 in their K.M.C. Hospital at Manipal, on 24.05.1998, at about 9.00 p.m. and both of them were found to have sustained injuries. He has explained the nature of the injuries sustained by PW-1 and PW-3 and stated that Varadaraj Shenoy (PW-1) was found sustaining, (i) Three punctured wounds measuring 0.5 x 0.5 cm. over left scapular region, 4 inches apart in a straight line in midscapular area, (ii) Lacerated wound measuring 5 cm. x 1 cm. x 0.5 cm. over left temporal area, (iii) lacerated wound measuring 6 cm. x 1 cm. x 0.5 cm. above the second injury on the head region. It was opined by the doctor that these injuries are grievous in nature. Similarly, Anil Shenoy (PW-3) was also shown to have sustained, (i) incised wound measuring 3 cm. x 1 cm. over left shoulder joint, Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 25 (ii) incised wound measuring 3 cm. x 1 cm. over posterior aspect of left shoulder, (iii) abrasion measuring 8 cm. x 0.5. cm over middle third of left thing, (iv) punctured wound 3 inches apart in epigastric and left hypochondrium, (v) incised wound measuring 3.5 cm. x 1 cm. over inferior border of left side of mandible, (vi) incised wound measuring 10 cm. x 1.5 cm. over nape of neck (posterioty), (vii) lacerated wound measuring 2 cm. x 1 cm. x 1 cm. on left parietal area, and (viii) Chip fracture of left shoulder. These injuries were also considered as grievous in nature. Thus, the medical evidence also corroborates the fact that immediately after the incident, both PW-1 and PW-3 were taken to hospital and they were examined by the doctor and noticed that both the injured had sustained multiple grievous injuries. Thus, PW-1 and PW-3 being the injured witnesses in the incident have stated in their Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 26 evidence that it was accused No.1 who had inflicted injuries upon them by initially wrongfully restraining them from proceeding further and then assaulting them with a handheld axe.
20. Our Hon’ble Apex Court in the case of LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW JHARKHAND) and connected matters reported in (2021) 9 Supreme Court Cases 191, in sub-paragraphs 9.1 and 9.2 of its judgment, referring to its previous judgment in the case of Abdul Syeed Vs. State of M.P., [(2010) 10 SCC259, was pleased to observe that, the evidence of the injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It was further observed by their Lordships that, "being injured witnesses, their presence at the time and place of occurrence cannot be doubted". Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 27 In the instant case, admittedly the evidence of PW-1 and PW-3 is trustworthy and reliable.
21. The evidence of PW-2 shows that immediately after the incident, he rushed to the spot and has seen both his brothers fallen on the ground sustaining bleeding injuries. It was him, joined by others, shifted the injured to the hospital. Interestingly, this witness was not cross- examined from accused No.1’s (present petitioner) side. Thus, the accused No-1 has not denied the evidence of PW-2 at all.
22. The evidence of PW-4 Prakash Kamat is that he was an eye witness to the incident and being in the very same Bus Stand as a ticket booking agent to different busses, was present at the spot. He too like PWs.1 to 3, has withstood the cross-examination from accused Nos.2 and 3 side. Even this witness was also not cross- examined from accused No.1’s (present petitioner in Crl.RP11862012) side. Thus, the accused No-1 has Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 28 not denied the truthfulness in the evidence of PW-4 about the incident.
23. The evidence of PW-5 Krishna Prasad was also not denied or disputed from the present petitioner’s (accused No.1) side. No cross-examination of PWs.2, 4 and 5 was made from accused No.1’s (present petitioner) side. Therefore, it is proved beyond reasonable doubt that, on the night of 24.05.1998, at about 8.50 p.m., near service Bus Stand at Udupi, the accused No.1 wrongfully restrained PW-1 and PW-3 in connection with an altercation they had that morning, assaulted both of them with a handheld axe which he had carried with him and inflicted grievous injuries to both PW-1 and PW-3. PWs.1, 3 and 4 have stated that accused No.1 used a handheld axe to assault PW-1 and PW-3. All these witnesses have identified the axe at MO-1 as the one with which accused No.1 assaulted PW-1 and PW-3. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 29 24. PW-8/CW-8 Shekhar Kotiyan and PW-9/CW-9 Raviraj Shetty, have stated that it was in their presence at the instance of accused No.1, the said axe at MO-1 was seized by the police by drawing a recovery panchanama as per Ex.P-5. Both the witnesses have stated that on 02.03.1999, in the evening between 5.30 p.m. to 6.30 p.m., the accused No.1 has produced the said weapon from a bush near a Masjid at Udupi to Malpe road. Each of these witnesses have also stated about the presence and participation of other witnesses during the said process of recovery of weapon at the instance of accused No.1. Both these witnesses have identified the weapon at MO-1. Their evidence given examination-in-chief could not be shaken in their cross-examination from the accused side.
25. PW-10/CW-11 Valentine D’Souza, the Investigating Officer has also stated about he recording the voluntary statement from accused No.1 and recovering Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 30 MO-1 at the instance of accused No.1 and the presence of these two panchas. Thus, the weapon used in the commission of the crime and recovery of the weapon at the instance of accused No.1 also stands established.
26. Regarding spot of the incident, there is no serious dispute from the accused side. The evidence of PWs.1, 2, 3, 4 and 5 about the spot of the incident has not been specifically denied in their cross-examination. Further, the evidence of PW-6/CW-6 Sridhar Swamy that a scene of offence panchanama as per Ex.P-3 was drawn in his presence also corroborates the evidence of PWs.1 to 5 about the spot of the offence and the evidence of PW-10 – the Investigating Officer, about the spot of offence proves that the spot of offence was a portion in service Bus Stand at Udupi.
27. PW-1, PW-3 and PW-4 have identified the Kinetic Honda motorcycle at MO-4 stating that it is upon the same motorcycle, the accused No.1 had come to the spot and Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 31 assaulted PW-1 and PW-3. The evidence of PW-6 shows that said vehicle was seized in his presence by drawing a seizure panchanama as per Ex.P-4. The said evidence corroborates the evidence of PW-10, the Investigating Officer that he seized the said motorcycle under the panchanama at Ex.P-4. Thus, the vehicle used by accused No.1 in the commission of offence also stands proved.
28. The motive behind the commission of crime is stated by PW-1, PW-2, PW-3 and PW-5 stating that the accused had objected for PW-1 and PW-3 booking the tickets as bus agents to a bus by name Annapurna on the same day, in the afternoon, in service Bus Stand at Udupil. As observed above, all these witnesses have also stated that, in that connection, a dispute and an altercation has taken place between them. According to PWs.1 to 4, it is in connection with the same, the accused No.1 had assaulted PW-1 and PW-3. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 32 Learned counsel for the petitioner in his argument submitted that the prosecution has not proved the motive behind the crime. He also submitted that the incident has taken place in a grave and sudden provocation and in a spur of the moment. Both his arguments are not acceptable for the reason that, as analysed above, the incident of altercation between accused No.1 and PW-1 and PW-3 taken place in the service Bus Stand at Udupi in the morning of the same day i.e., on 24.05.1998, has been clearly established by the prosecution. According to PW-1 and PW-3, before leaving the place in the morning, the accused No.1 had threatened them that he would see to them. Later, it was in the same evening, the incident of accused No.1 going to the place where PW-1 and PW-3 were there i.e., near tea shop and assaulting them with the handheld axe has stood proved. Further, he has assaulted PW-1 and PW-3 with a handheld axe which is a dangerous weapon and also in a dangerous means. This act of accused No.1 cannot be called as an act under Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 33 sudden provocation or in a spur of moment. Being a bus agent, he had no business to carry with him a handheld axe and also to approach PW-1 and PW-3 in the late evening hours. Thus, when he has carried the weapon with him and assaulted PW-1 and PW-3 with it, it shows his preparation and proves his action and also his knowledge about what he was doing and the consequences of his act.
29. The accused No.1 in the cross-examination of PW- 1 and PW-3 in the form of making suggestions to them, took a defence that PW-1 and PW-3 were assaulted by three unknown persons who came in a Maruti Car and after assaulting them, fled away from the scene. It was also suggested to them that their brother CW-3 had enmity with the accused, as such, a false case was made against them, however, none of these witnesses admitted those suggestions as true. As such, the defence taken up by the accused in no manner could shake the evidence led by the prosecution about the commission of crime by accused No.1. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 34 Thus, the prosecution has established beyond reasonable doubt that, on the date, time and place charged against accused No.1, he has wrongfully restrained PW-1 and PW-3 from proceeding further and assaulted PW-1 and PW-3 with a dangerous weapon in a dangerous manner, inflicting multiple injuries upon them having the knowledge of his act and thus has committed the offences punishable under Sections 341 and 326 of IPC.
30. The trial Court after hearing the accused, sentenced accused No.1 to undergo imprisonment for a period of one month and also to pay a fine of `500/- and in default of payment of fine amount, to undergo imprisonment for a further period of fifteen days for the offence punishable under Section 341 of IPC. It further sentenced accused No.1 to undergo rigorous imprisonment for a period of three years and to pay a fine of `5,000/- and in default of payment of fine amount, to undergo imprisonment for further period of six months for the offence punishable under Section 326 of IPC. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 35 While ordering such a sentence to accused No.1, the trial Court apart from hearing him, also considered the contention taken up by accused No.1 that he is a family holder, who has to maintain his family members, including the children. It is considering these aspects, it prescribed the sentence for the proven guilt. However, the Sessions Judge’s Court in its judgment in Criminal Appeal No.81/2007, which is the appeal filed by accused No.1, only giving the reason that incident was taken place on 24.05.1998 and the trial had taken a long time, proceeded to reduce the sentence for the offence punishable under Section 326 of IPC.
31. Learned counsel for the accused No-1 in concluding his arguments submitted that, in case if this Court finds no reason to set aside the conviction, let it not alter the reduced sentence ordered by the Sessions Judge’s Court. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 36 Per contra, learned State Public Prosecutor appearing for the petitioner/State in Criminal Revision Petition No.306/2013 vehemently submitted that the sentence prescribed for the offence punishable under Section 326 of IPC is either the imprisonment for life or imprisonment of other description for a term which may extend to ten years and also fine. Thus, when the sentence can be extended up to life imprisonment, prescribing the sentence of only one year for the proven guilt under Section 326 of IPC is a mockery of the sentencing policy. He further submitted that dragging of any litigation, whether civil or criminal, for a long period in India is not uncommon. Merely because some delay is said to have taken place in the trial, that itself would not entitle accused No.1 to seek for reduction of the sentence or the Court imposing a very lesser punishment. He further submitted that, from the trial Court up to this Court, the matter has been delayed in its disposal only at the instance of accused No.1. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 37 32. During the course of one of the hearing dates i.e., on 21.03.2023, learned counsel for the petitioner/accused also made a submission that accused No.1 had already served the sentence of one year rigorous imprisonment long back, as such, sending him to imprisonment once again is not fair. He further submitted that the petitioner/accused No.1 was totally immobile and is suffering with gangrene and with several serious medical ailments. On the said day, the Court directed the complainant/State to ascertain the alleged period of accused No.1 said to have undergone in judicial custody during the pendency of the matter and also about the alleged health ailment with which the accused No.1 was said to be suffering. On the very next date of hearing i.e., on 28.03.2023, when the matter was taken up for arguments from both side, learned State Public Prosecutor places a memo with copies of reports from three Chief Superintendent of Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 38 Central Prisons i.e., at Shivamogga, Udupi and Mangaluru and submitted that accused No.1 had undergone in total a period of only five days in judicial custody from 07.06.2007 to 11.06.2007, as such, he has not completed one year sentence imposed upon him. He also submitted that the police authorities have secured accused No.1 and ascertained that only two toes were amputated due to gangrene and that he was in a fit condition to walk and to attend to his work. He also submitted that accused No.1 can be produced before the Court if the Court orders in that regard. Per contra, learned counsel for accused No.1 on the same day submitted that by wrong information, he submitted on the previous date of hearing that the accused No.1 had already suffered one year rigorous imprisonment, however, his imprisonment were in few other cases which were punishable under Section 138 of Negotiable Instruments Act, 1881. Still, he contended that accused No.1 was suffering with kidney problem and placed a Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 39 discharge summary shown to have been issued by Adarsha Hospital, Udupi, for a perusal and return.
33. The said discharge summary, which is accompanied with a Certificate by the Hospital which was obtained only to place it before this Court on 27.03.2023, shows that accused No.1 was suffering with uncontrolled diabetes Mellitus Type II, uncontrolled hypertension and he was advised to take medicines as prescribed.
34. It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the gravity of the proven guilt for which the accused is found guilty of. Our Hon’ble Apex Court in Ruli Ram and another -vs- State of Haryana, reported in (2002) 7 SCC691 while considering the proportionality of the sentence ordered for a convict for the offence punishable under Section Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 40 304 Part-II of IPC, was pleased to observe in Paragraphs- 23, 24 and 25 of its judgment as below :
23. xxx xxx xx The punishment has to be always proportionate to the crime. Punishment serves a purpose inasmuch as it acts as deterrent for those who have the propensity to take law into their own hands. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.
24. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 41 reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.
25. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 42 crime, uniformly disproportionate punishment has some very undesirable practical consequences. “ With the above observation, it confirmed the sentence of ten years rigorous imprisonment awarded by the trial Court by observing the same as appropriate.
35. Our Hon’ble Apex Court in State of U.P.-.vs- Shri Kishan, reported in (2005) 10 SCC420 While discussing the concept of imposition of just and appropriate sentence and the need and object of imposition of such sentence, was pleased to observe in Paragraphs-5, 7, 8 and 9 of its judgment as below :
5. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of Tamil Naidu . Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 43 7. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
8. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result- wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 44 9. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". Very recently, our Hon’ble Apex Court in State of Punjab –vs- Dil Bahadur, reported in 2023 SCC OnLine SC348 reiterated the sentencing policy as above and made the following observations in Paragraph-13 of its judgment: “ We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 45 question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.” With the above observation, the Hon’ble Apex Court quashed and set aside the judgment and order passed by the High Court reducing the sentence while maintaining the conviction for the offence punishable under Section 304-A of IPC from two years rigorous imprisonment to eight months simple imprisonment and sentence imposed by the learned trial Court, confirmed by the first Appellate Court (learned Sessions Court), was restored. In the case on hand, though the incident is said to have taken place on 24.05.1998 and the present Criminal Revision Petitions are shown to have been pending before this Court for more than ten years, but, the said delay itself Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 46 cannot be a ground to take any lenient view in the matter. The police report filed by the learned State Public Prosecutor would go to show that the accused has served the sentence in different criminal cases for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 in different times and in different jails. The medical record produced for a perusal and return by the learned counsel for accused No.1, except showing that accused No.1 is suffering with uncontrolled diabetes and hypertension, it does not mention that he required to be personally attended to by some person and that he was immobile and unable to attend to his work. On the other hand, it shows that the patient was advised to take medicines as prescribed and come for regular check-ups. As observed above, the said Medical Certificate was obtained by accused No.1 subsequent to this Court’s observation made on 21.03.2023. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 47 36. In the above circumstances, considering the nature of facts and circumstances of the case, the sentence of imprisonment and fine ordered by the trial Court was quite reasonable and appropriate in the matter. However, giving no convincing reasons, the learned Sessions Judge has shown a great leniency by reducing the said sentence further and confining only to one year rigorous imprisonment. Since the said reduction of the imprisonment by Sessions Judge’s Court in Criminal Appeal No.81/2007 was not warranted in the circumstances of the case, the revision petition filed by the State in Criminal Revision Petition No.306/2013 deserves to be allowed and in view of the reasoning given above, the Criminal Revision Petition No.1186/2012 filed by accused No.1 deserves to be set aside.
37. Accordingly, I proceed to pass the following:
ORDER[i]. Criminal Revision Petition No.306/2013 filed by the State is allowed, Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 48 [ii]. Criminal Revision Petition No.1186/2012 filed by accused No.1 is dismissed, [iii]. The judgment of conviction and order on sentence dated 16.11.2012, passed by the learned Sessions Judge, Udupi, in Criminal Appeal No.81/2007, modifying the sentence passed by the trial Court from three years rigorous imprisonment to one year rigorous imprisonment for the offence punishable under Section 326 of Indian Penal Code, 1860, is set aside, [iv]. The judgment of conviction and order on sentence dated 18.06.2007, passed by the learned II Addl.Civil Judge (Jr.Dn.,) and J.M.F.C., Udupi, in C.C.No.4846/2003, imposing rigorous imprisonment for three years on the accused No.1 - Sachu @ Sathisha, son of Thaniya Poojary (petitioner in Criminal Revision Petition No.1186/2012), is restored and confirmed. Crl.R.P.No.306/2013 C/w. Crl.R.P.No.1186/2012 49 [v]. The fine amount imposed by the trial Court in the said C.C.No.4846/2003 and the default sentence for the offences punishable under Section 341 and 326 of Indian Penal Code, 1860, remains unaltered. The petitioner in Criminal Revision Petition No.1186/2012 to voluntarily surrender before the trial Court within fifteen (15) days from today and to serve the sentence. He is entitled for a copy of this order immediately. Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge’s Court along with their respective records forthwith. Sd/- JUDGE bk/