C. R. KARIYAPPAversusSTATE OF KARNATAKA

150                      [2018]REPORTS
               SUPREME COURT    11 S.C.R. 150              [2018] 11 S.C.R.


A                             C. R. KARIYAPPA
                                        v.
                           STATE OF KARNATAKA
                       (Criminal Appeal No. 781 of 2009)
B                            SEPTEMBER 05, 2018
            [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
            Penal Code, 1860 – ss. 325 and 326 – Voluntarily causing
      grievous hurt – On facts, appellant-school teacher assaulted a
      second class student with wooden stick resulting in loss of eye sight
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      on the left eye – Acquittal by the trial court on the ground of
      contradictions in the evidence of eye witnesses, student being tutored
      before examination and delay in lodging of FIR – However, the
      High Court convicted the appellant u/s. 326 – On appeal, held:
      Evidence of the injured student cannot be discarded on the ground
D     that he was tutored about the occurrence before the examination –
      He was apprised about the court’s proceedings as he was not
      conversant with the same – There were no contradictions in the
      evidence of the eye-witnesses as they were supported by the evidence
      of the father of another student – Evidence of eye witnesses was
      consistent throughout – However, there being no evidence that the
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      stick wielded by the appellant was a dangerous weapon, conviction
      of the appellant u/s. 326 is not warranted – Thus, the conviction
      modified to one u/s. 325 and sentence of imprisonment reduced to
      one year – Evidence.
            Partly allowing the appeal, the Court
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            HELD: 1.1 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, 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,
G     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. [Para 9][153-B-C]
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                                       150
         C. R. KARIYAPPA v. STATE OF KARNATAKA                         151


      1.2 The contradiction pointed out between the evidence of        A
PW-3 and PW-4, who were examined as eye witnesses, 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 the appellant on PW-2 with the stick and that
                                                                       B
PW-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 to
5 has been consistent through out. Their evidence is also
supported by the medical evidence of medical officers and doctors.
Upon appreciation of evidence, the High Court rightly reversed
the order of acquittal and convicted the appellant. [Para 11][153-     C
F]
      1.4 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. In the
absence of such evidence, the conviction of the appellant under        D
Section 326 may not be warranted; but the offence would fall under
Section 325 IPC, “voluntarily causing grievous hurt”. The
conviction of the appellant under Section 326 IPC is modified to
conviction under Section 325 IPC. Coming to the quantum of
sentence, the occurrence was of the year 1996. Keeping in view         E
the passage of time and in the facts and circumstances of the
instant case, the sentence of imprisonment is reduced to one
year with additional fine of Rs.50,000/- . [Paras 12, 13][153-G-H;
154-A-B]
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.             F
781 of 2009.
      From the Judgment and Order dated 29.05.2008 of the High Court
of Karnataka at Bangalore in Criminal Appeal No. 814 of 2001.
      Basava Prabhu S. Patil, Sr. Adv., Anirudh Sanganeria, Chinmay
Desh Pande, Geet Ahuja, Ms. Rachitha Herimath, Advs. for the           G
Appellant.
      Joseph Aristotle S., Mrs. Priya Aristotle, Shiva P., Ms. Aruna
Hannah Dutta, Ms. Anitha Shenoy, Advs. for the Respondent.

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152             SUPREME COURT REPORTS                          [2018] 11 S.C.R.


A           The Judgment of the Court was delivered by
             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.
B            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
C     M.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 of
      PW-2. On the complaint lodged by PW-1 who is father of PW-2, law
      was set in motion.
             3. Upon consideration of the evidence adduced by the prosecution,
D     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
E     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.

F          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
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      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 considered as fatal to the
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          C. R. KARIYAPPA v. STATE OF KARNATAKA                                153
                     [R. BANUMATHI, J.]

prosecution case. Learned senior counsel urged that when the conclusion        A
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.                    B
       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            C
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         D
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 the appellant on PW-2 with the
stick and that PW-2 sat down holding his eye with hands.                       E

       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            F
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      G
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          H
154                SUPREME COURT REPORTS                      [2018] 11 S.C.R.


A     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).
B
            14. The conviction of the appellant under Section 326 IPC 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
C     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.
D             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.

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      Nidhi Jain                                              Appeal partly allowed.




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