Sri Prakash @ Tulsiprakash and Sri Paramesha vs State

V. Jagannathan

This criminal revision petition is by the accused who has been convicted by the trial court in respect of the offences punishable under Sections 341, 323 and 326 of IPC and consequent sentence of Rs. 300/- fine for the offence u/s 341, Rs. 500/- for tile offence u/s 323 and two months S.I, and Rs. 1,500/- fine in respect of the offence u/s 326 with default sentences were questioned by the petitioner before the lower appellate court and his appeal was dismissed. The petitioner therefore calls in question the judgments of the courts below. The case of the prosecution in short is that, when the victim Dharmesh was taking the cattle in the field close to the by-pass road in front of the house of one Kalegowda, the accused, whose lands were also nearby, told the victim to take the cattle properly and to avoid the cattle entering the land of the accused, the victim replied that, if the cattle trespasses into the land of the accused, then he shall look into it. This made the accused to abuse the victim and A-1 Prakash caught hold of the victim and A-2 assaulted with a spade. The victim was taken to hospital for treatment and his complaint was taken as per Ex.P1. On completion of the investigation, the charge shed was filed against the petitioner in respect of the offences punishable under Sections 341, 323, 326 r/w section 34 of the IPC.

At the trial, following the accused not pleading guilty, the prosecution examined in all eight witnesses and 5 documents were produced along with one M.O. The accused led no defence evidence.

The trial court, after evidence appreciation, convicted the petitioners and sentenced them as aforesaid and the lower appellate court agreed with the trial court.

I have heard the learned counsel for the petitioners and learned Government Pleader for the respondent-State.

Submission of the petitioner''s counsel is that, even if the incident had taken place, it may be due to provocation on the part of the victim and therefore the offence may fall u/s 325 and not u/s 326 of IPC. It was also argued by referring to the evidence on record that, except Dharmesh, no other witness has seen the incident and the said Dharmesh has admitted in the cross examination that he had filed a false case against the accused because of enmity between him and the accused. Therefore, the court below could not have convicted the petitioners. Evidence was read in this regard by the learned counsel for the petitioners.

On the other hand, learned Government Pleader supported the view taken by the courts below and sought for dismissal of the petition.

Having thus heard both sides and after going through the material on record, it appears that, except PW-2 Dharmesh, the other witnesses were not present during the time of the incident. PW-1 is the doctor who speaks to the medical evidence. PW-2 being the main witness, in the coarse of his cross examination, has admitted that there is enmity between him and the accused and therefore a false case has been filed against the accused. This admission by PW-2 takes out the case of the prosecution. Since there are no other witnesses to support or to corroborate PW-2 in regard to the incident and injury caused, the trial court could not have accepted the evidence to convict the petitioners. The appellate court also committed similar error in overlooking the admission made by PW-2. In view of the nature of evidence on record and submission made by PW-2, the trial court ought to have given the benefit of doubt to the accused instead of convicting him. Hence, the judgment of conviction and sentence passed by the trial court as confirmed by the appellate court stands set siae. The petitioners are acquitted of the alleged offences by giving them the benefit of doubt by allowing this petition.