C. R. KARIYAPPA versus STATE OF KARNATAKA on 5 September 2018

150

SUPREME COURT REPORTS

[2018] 11 S.C.R.

A

C. R. KARIYAPPA

v.

STATE OF KARNATAKA

(Criminal Appeal No. 781 of 2009)

BSEPTEMBER 05, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – ss. 325 and 326 – Voluntarily causinggrievous hurt – On facts, appellant-school teacher assaulted asecond class student with wooden stick resulting in loss of eye sightCon the left eye – Acquittal by the trial court on the ground ofcontradictions in the evidence of eye witnesses, student being tutoredbefore examination and delay in lodging of FIR – However, theHigh Court convicted the appellant u/s. 326 – On appeal, held:Evidence of the injured student cannot be discarded on the groundDthat he was tutored about the occurrence before the examination –He was apprised about the court’s proceedings as he was notconversant with the same – There were no contradictions in theevidence of the eye-witnesses as they were supported by the evidenceof the father of another student – Evidence of eye witnesses wasconsistent throughout – However, there being no evidence that theEstick wielded by the appellant was a dangerous weapon, convictionof the appellant u/s. 326 is not warranted – Thus, the convictionmodified to one u/s. 325 and sentence of imprisonment reduced toone year – Evidence.

Partly allowing the appeal, the CourtF

HELD: 1.1 The evidence of PW-2 injured-child witness inhis cross examination stated that the admitted suggestions putto him by the defence counsel that he was tutored, the samecannot be the reason for discarding the evidence of PW-2. WhenPW-2 was examined in the Court some time after the occurrence,Gbeing a child witness(PW-2) who is not conversant with the court’sproceedings, has to be necessarily apprised about the court’sproceedings and that he has to speak about the occurrence. Itcannot be said that he was tutored about the occurrence itself todepose against the appellant. [Para 9][153-B-C]H

1.2 The contradiction pointed out between the evidence ofPW-3 and PW-4, who were examined as eye witnesses, do notaffect the version of PW-3 and PW-4 and their credibility, moreso, when their evidence is supported by PW-5 who is father ofanother student studying in the same school who has also statedabout the assault by the appellant on PW-2 with the stick and thatPW-2 sat down holding his eye with hands. [Para 10][153-D-E]

1.3 The High Court rightly held that evidence of P.Ws 3 to5 has been consistent through out. Their evidence is alsosupported by the medical evidence of medical officers and doctors.Upon appreciation of evidence, the High Court rightly reversedthe order of acquittal and convicted the appellant. [Para 11][153-F]

1.4 Though the stick wielded by the appellant has beenmarked as MO1, there is no material to show that the stick thatwas wielded by the appellant was a dangerous weapon. In theabsence of such evidence, the conviction of the appellant underSection 326 may not be warranted; but the offence would fall underSection 325 IPC, “voluntarily causing grievous hurt”. Theconviction of the appellant under Section 326 IPC is modified toconviction under Section 325 IPC. Coming to the quantum ofsentence, the occurrence was of the year 1996. Keeping in viewthe passage of time and in the facts and circumstances of theinstant case, the sentence of imprisonment is reduced to oneyear with additional fine of Rs.50,000/- . [Paras 12, 13][153-G-H;154-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.781 of 2009.

From the Judgment and Order dated 29.05.2008 of the High Courtof Karnataka at Bangalore in Criminal Appeal No. 814 of 2001.

Basava Prabhu S. Patil, Sr. Adv., Anirudh Sanganeria, ChinmayDesh Pande, Geet Ahuja, Ms. Rachitha Herimath, Advs. for theAppellant.

Joseph Aristotle S., Mrs. Priya Aristotle, Shiva P., Ms. ArunaHannah Dutta, Ms. Anitha Shenoy, Advs. for the Respondent.

AB

C

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E

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AThe Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of the judgmentof the High Court in and by which the High Court has reversed the orderof acquittal and convicted the appellant under Section 326 IPC andsentenced him to undergo imprisonment for a period of two years.

B

2. It is an unfortunate case where the appellant working as ateacher in Rani Chennamma School, Hospet had assaulted PW-2, asecond standard student, with wooden stick for not wearing uniformshoes resulting in injury to the left eye of the said student. The injuredPW-2 was taken to the hospital at Hospet and, thereafter, taken to theCM.M. Joshi Hospital at Hubli where PW-2 had undergone surgery twice.In spite of the treatment, there was loss of eye-sight on the left eye ofPW-2. On the complaint lodged by PW-1 who is father of PW-2, lawwas set in motion.

3. Upon consideration of the evidence adduced by the prosecution,Dthe Trial Court acquitted the appellant holding that there are contradictionsin the evidence of eye witnesses viz. PW-3 and PW-4. The Trial Courtalso observed that the injured child (PW-2) was tutored before he wasexamined in the witness box and therefore, the evidence of child witness(PW-2) can not form the basis for conviction. The Trial Court also heldthat eye witnesses viz. PW-3 and PW-4 are related to PW-1 and thatEthere was delay of 25 days in lodging the FIR and on those findings, thetrial Court acquitted the accused-appellant.

4. The High Court set aside the order of acquittal and convictedthe appellant as stated in para 1.

5. We have heard Mr. Basava Prabhu S.Patil, learned seniorFcounsel appearing for the appellant and Mr. Joseph Aristotle S., learnedcounsel appearing for the respondent-State.

6. Learned senior counsel appearing for the appellant has takenus through the judgment of the Trial Court and submitted that the TrialCourt has rightly taken note that PW-2 injured child witness was tutoredGand that evidence of PW-3 and PW-4 is fraught with contradiction andthe trial Court has rightly acquitted the accused and while so the HighCourt erred in reversing the order of acquittal.

7. Learned senior counsel further submitted that the inordinatedelay of 25 days in lodging the FIR was rightly considered as fatal to theH

prosecution case. Learned senior counsel urged that when the conclusionarrived at by the trial court was a plausible view, based upon the evidence,the High Court was not right in reversing the order of acquittal.

8. Learned counsel appearing for the State supported the impugnedjudgment of the High Court and submitted that based upon the evidence,the High Court has rightly convicted the appellant-accused.

9. The evidence of PW-2 injured-child witness in his crossexamination stated that the admitted suggestions put to him by the defencecounsel that he was tutored, in our considered view, the same cannot bethe reason for discarding the evidence of PW-2. When PW-2 wasexamined in the Court some time after the occurrence, being a childwitness(PW-2) who is not conversant with the court’s proceedings, hasto be necessarily apprised about the court’s proceedings and that he hasto speak about the occurrence. It cannot be said that he was tutoredabout the occurrence itself to depose against the appellant.

10. So far as contradiction pointed out between the evidence ofPW-3 and PW-4 who were examined as eye witnesses, as observed bythe High Court those contradictions do not affect the version of PW-3and PW-4 and their credibility, more so, when their evidence is supportedby PW-5 who is father of another student studying in the same schoolwho has also stated about the assault by the appellant on PW-2 with thestick and that PW-2 sat down holding his eye with hands.

11. The High Court has rightly held that evidence of P.Ws 3 to 5has been consistent through out. Their evidence is also supported by themedical evidence of PW-13 Doctor Guruprasad, the medical officer, inthe hospital at Hospet; PW-14 (H. Neelakantha Swamy) – lecturer inBellary Medical College and PW-16 (Dr.S.R. Kotekar) medical officerin the Government Hospital at Hospet. Upon appreciation of evidence,the High Court has rightly reversed the order of acquittal and convictedthe appellant.

12. The only question falling for consideration is the correctnessof the conviction under Section 326 and the nature of the offence. Thoughthe stick wielded by the appellant has been marked as MO1, there is nomaterial to show that the stick that was wielded by the appellant was adangerous weapon.

13. In the absence of such evidence, in our view, the conviction ofthe appellant under Section 326 may not be warranted; but the offence A

B

C

DE

F

G

H

Awould fall under Section 325 IPC, “voluntarily causing grievous hurt”.Coming to the quantum of sentence, the occurrence was of the year1996. Keeping in view the passage of time and in the facts andcircumstances of the present case, the sentence of imprisonment isreduced to one year with additional fine of Rs.50,000/- (Rupees fiftythousand).

B

14. The conviction of the appellant under Section 326 IPC ismodified to conviction under Section 325 IPC. The sentence ofimprisonment is reduced to one year. Additionally fine of Rs.50,000/-(Rupees fifty thousand) is imposed. In default, the appellant shall furtherundergo imprisonment of three months. The period of sentence ofCimprisonment, if any, the appellant has already undergone shall be setoff.

15. The fine amount of Rs.50,000/- (Rupees fifty thousand) shall be paid as compensation to the injured PW-2.

D16. The appeal is partly allowed.

17. The appellant shall surrender within a period of four weeksfrom today failing which the appellant shall be taken to custody to serveout the remaining sentence.

E

Nidhi Jain

Appeal partly allowed.

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G

H