C.R.Kariyappa vs State Of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 781 OF 2009

C.R.KARIYAPPA ...APPELLANT(S) VERSUS

STATE OF KARNATAKA ...RESPONDENT(S)

J U D G M E N T

R. BANUMATHI,J.

1. This appeal arises out of the judgment of the High

Court in and by which the High Court has reversed the

order of acquittal and convicted the appellant under

Section 326 IPC and sentenced him to undergo imprisonment

for a period of two years.

2. It is an unfortunate case where the appellant working

as a teacher in Rani Chennamma School, Hospet had

assaulted PW-2, a second standard student, with wooden

stick for not wearing uniform shoes resulting in injury to

the left eye of the said student. The injured PW-2 was

taken to the hospital at Hospet and, thereafter, taken to

the M.M. Joshi Hospital at Hubli where PW-2 had undergone Signature Not Verified

surgery twice. In spite of the treatment, there was loss Digitally signed by MADHU BALA Date: 2018.09.08 10:13:44 IST Reason:

of eye-sight on the left eye of PW-2. On the complaint

lodged by PW-1 who is father of PW-2, law was set in 2

motion.

3. Upon consideration of the evidence adduced by the

prosecution, the Trial Court acquitted the appellant

holding that there are contradictions in the evidence of

eye witnesses viz. PW-3 and PW-4. The Trial Court also

observed that the injured child (PW-2) was tutored before

he was examined in the witness box and therefore, the

evidence of child witness (PW-2) can not form the basis for

conviction. The Trial Court also held that eye witnesses

viz. PW-3 and PW-4 are related to PW-1 and that there was

delay of 25 days in lodging the FIR and on those findings,

the trial Court acquitted the accused-appellant.

4. The High Court set aside the order of acquittal and

convicted the appellant as stated in para 1.

5. We have heard Mr. Basava Prabhu S.Patil, learned

senior counsel appearing for the appellant and Mr. Joseph

Aristotle S., learned counsel appearing for the respondent-

State.

6. Learned senior counsel appearing for the appellant

has taken us through the judgment of the Trial Court and

submitted that the Trial Court has rightly taken note that

PW-2 injured child witness was tutored and that evidence of

PW-3 and PW-4 is fraught with contradiction and the trial

Court has rightly acquitted the accused and while so the

High Court erred in reversing the order of acquittal.

7. Learned senior counsel further submitted that the

inordinate delay of 25 days in lodging the FIR was rightly 3

considered as fatal to the prosecution case. Learned senior

counsel urged that when the conclusion arrived 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

impugned judgment 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

cross examination stated that the admitted suggestions put

to him by the defence counsel that he was tutored, in our

considered view, the same cannot be the reason for

discarding the evidence of PW-2. When PW-2 was examined in

the Court some time after the occurrence, being a child

witness(PW-2) who is not conversant with the court’s

proceedings, has to be necessarily apprised about the

court’s proceedings and that he has to speak about the

occurrence. It cannot be said that he was tutored about the

occurrence itself to depose against the appellant.

10. So far as contradiction pointed out between the

evidence of PW-3 and PW-4 who were examined as eye

witnesses, as observed by the High Court those

contradictions do not affect the version of PW-3 and PW-4

and their credibility, more so, when their evidence is

supported by PW-5 who is father of another student studying

in the same school who has also stated about the assault by 4

the appellant on PW-2 with the stick 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 5 has been consistent through out. Their evidence is

also supported by the medical evidence of PW-13 Doctor

Guruprasad, the medical officer, in the hospital at Hospet;

PW-14 (H. Neelakantha Swamy) – lecturer in Bellary Medical

College and PW-16 (Dr.S.R. Kotekar) medical officer in the

Government Hospital at Hospet. Upon appreciation of

evidence, the High Court has rightly reversed the order of

acquittal and convicted the appellant.

12. The only question falling for consideration is the

correctness of the conviction under Section 326 and the

nature of the offence. Though the stick wielded by the

appellant has been marked as MO1, there is no material to

show that the stick that was wielded by the appellant was a

dangerous weapon.

13. In the absence of such evidence, in our view, the

conviction of the appellant under Section 326 may not be

warranted; but the offence would fall under Section 325

IPC, “voluntarily causing grievous hurt”. Coming to the

quantum of sentence, the occurrence was of the year 1996.

Keeping in view the passage of time and in the facts and

circumstances of the present case, the sentence of

imprisonment is reduced to one year with additional fine of

Rs.50,000/- (Rupees fifty thousand).

14. The conviction of the appellant under Section 326 IPC 5

is modified to conviction under Section 325 IPC. The

sentence of imprisonment is reduced to one year.

Additionally fine of Rs.50,000/- (Rupees fifty thousand) is

imposed. In default, the appellant shall further undergo

imprisonment of three months. The period of sentence of

imprisonment, if any, the appellant has already undergone

shall be set off.

15. The fine amount of Rs.50,000/- (Rupees fifty

thousand) shall be paid as compensation to the injured

PW-2.

16. The appeal is partly allowed.

17. The appellant shall surrender within a period of four

weeks from today failing which the appellant shall be taken

to custody to serve out the remaining sentence.

….......................J. [R. BANUMATHI]

…......................J. [INDIRA BANERJEE] NEW DELHI 5TH SEPTEMBER, 2018