IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED: THIS THE 18TH DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN CRIMINAL APPEAL_NO. 103S1 2005 BETWEEN: Javed Shaikh Suleman Age: 23 years R/o. Belambar, Tal: Ankola District Karwar APPELLANT (By Sri, Siddappa S. Sajjan, Adv. for Sri, Pradeep M. Naik, Adv.) AND: The State of Karnataka Rep. by its State Public Prosecutor Advocate General’s Office High Court Buildings Bangalore 360 001 RESPONDENT (By Sri Anand K Naalgimath, HCGP) CRLA FILED U/S. 374(2) CR.P.C AGAINST THE JUDGMENT DT.19/27.4.2005 PASED BY THE S.J.. F.T.C-Il, KARWAR IN S.CNO.37/2OO3, CONVICTING THE APPELLANT-ACCUSED FOR THE OFFENCE P/U/S.332 AND 333 R/W 34 OF IPC AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The appellant calls in question the conviction in respect of the offences punishable under Section 332 and 333 read with Section 34 of the IPC and sentence passed namely, to undergo S.I. for one year and to pay a fine of Rs.3,000/- for offence punishable under Section 332 and to undergo S.J. for three years and to pay a fine of Rs.2,000/- in respect of offence punishable under Section 333 of IPC and in default to undergo SI for one year. 2. The prosecution case in short is that, Sudhakar Gangadhar Gunaga (PW2) was working as a Forest Officer and he received an information that some persons were transporting the timber illegally in a mini lorry, Therefore, the said Officer along with other officials proceeded on his motorcycle towards Agasoor road at about 9.00 p.m and at about 9.45 p.m he saw a lorry bearing No.KA-30/2941 proceeding towards Agasoor from Shirgunji side ail he gave signal to the lorry, but the vehicle did not stop and therefore, the complainant went ahead of the lorry on his motorcycle and again gave signal to stop, but the lorry did not stop and was about to hit the motorcycle, and therefore, in the process of avoiding that, the complainant along with the motorcycle fell to the ditch, which is on the left side of the road. Immediately, the other Forest Officers came and the complainant could not identify either the lorry driver or other persons who were in the lorry. However, the person wI.o got down from the lorry abused the complainan.t by saying that they would run the truck 4 over the motorcycle of the complainant. The complainant received injuries on his left leg near the knee portion and also in the right hand and he gave the complaint to the police on the same night, i.e., in the early hours at 3.30 a.m at the following day, as per Ex.P3. 3. Following the case being registered and panchanama being conducted, the charge sheet was submitted against the accused persons for the offences punishable under Sections 332, 333, 504, 506 and 427 of IPC. The accused pleaded not guilty and the prosecution led the evidence by examining six witnesses and getting marked eight documents, The statement of the accused was recorded and accused led no defence evidence. 4. The learned trial Judge after appreciating the evidence on record came to the conclusion that the prosecution had failed to prove the offences which are punishable under Section 504, 506 and 427 read with Section 34 of IPC, The accused were acquitted in respect of the said offences. However, the trial Court found the evidence was sufficient to hold that the accused had committed the offences under Section 332 and 333 read with Section 34 of IPC and accordingly, all the accused were convicted and sentenced as aforesaid. 5. I have heard the arguments of the learned Counsel Sri. Siddappa S. Sajjan for the appellant, who appears to be accused No.1 and the learned High Court Government Pleader for the State and perused the record of this case, 6. The appellant’s Counsel Sri. Siddappa S. Sajjan submits that, the entire case of the prosecution depends upon the evidence of PW2, the complainant and PW5. A careful reading of the evidence of these witnesses will go 6 to show that the complainant along with his vehicle fell into the ditch as the lorry was coming behind him and thinking that the lorry would hit the motorcycle, in an attempt to avoid that, the motorcycle fell into the ditch and consequently, PW2 was injured. This shows that the accused did not cause any hurt to the complainant. Secondly, it is argued that the evidence of PW5 would go to show that the said witness came to the spot after the complainant had fallen into the ditch and therefore, the question of PW5 being an eye witness does not arise. Moreover, the motorcycle was also found not to have been damaged to any extent. As such, the trial Court was in error in convicting the accused persons in respect of the offences punishable under Sections 332 and 333 of IPC. Hence the appeal be allowed and the order of conviction be set aside, 7 7. Submission of the learned High Court Government Pleader for the State is that, the prosecution has proved its case through the evidence of PW2 and PW5 and the I.O.-PW6 and also the doctor PW1 and therefore, the conviction of the appellant is just and proper and does not requires to be set aside. 8. In the light of the aforesaid submissions made, I have carefully perused the evidence on record and out of the six witnesses, the material witnesses are PW2, who is the complainant and PW5, who is said to be the eye witness. PW2 in the course of his evidence has deposed to the effect that he saw the lorry KA-30/2941 coming towards him and he gave signal to stop, but the lorry did not stop and therefore, PW2 chased the lorry and came in front of the lorry and again gave signal to the lorry driver to stop the lorry, but the lorry did not stop and PW2 avoided the lorry thinking that the lorry k 8 was about to hit him and in that process, PW2 along with his motorcycle fallen into the ditch which was on the left side, He deposed about the injuries sustained by him and treatment being taken in the hospital and having lodged the complaint. Even in the cross- examination of PW2, it is not shown that the lorry had touched any part of the motorcycle. L 9. PW5 is said to be the eye witness who deposed in his examination-in-chief that lorry touched the motorcycle of PW2, yet in the cross-examination, PW5 has admitted that when he went near the spot, that is near the Tandel school, he found the complainant having fallen into the ditch and being semi-conscious. Therefore, the evidence of PW5 does not give indication that he was present when the lorry was about to hit the motorcycle, but on the other hand, by the time PW5 9 went to the spot, the complainant had already fallen into the ditch. 10. Although PW1, the doctor has deposed in his evidence that he found injuries on PW2, which he has noted in the wound certificate Ex.P1. He has also deposed in his evidence that, while trying to avoid being hit by a lorry, if the motorcycle falls into a ditch, the injuries found on PW2 as per Ex.P1 could be caused. 11. In the face of the aforesaid evidence on record, can it be said the prosecution had brought home the guilt of the accused beyond all reasonable doubt in respect of the offences punishable under Section 332 and 333 of IPC? 12. Section 332 of the IPC reads as under: “332. Voluntarily causing hurt to deter public servantfrom his duty: ‘C I0 Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any otherpublic servantfrom discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servan4 shali be punished with imprisonment of either description for a term which may extent to three years, or withfine, or with both.’ Section 333 of the IPC reads as under: “333. voluntarIly causing grievous hurt to deter public servantfrom his duty Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to Jr ii be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either descnption for a term which may extent to ten years, or and shall also be liable to fine” 13. Careful reading of the aforesaid sections clearly establishes that in order to bring home the guilt of the accused in respect of the aforesaid offences, the prosecution will have to establish among other things that the accused had caused hurt to the person concerned, In other words, to bring home the offence under Section 332 of IPC, the prosecution had to establish that the accused had voluntarily caused bodily pain to the deceased or infirmity to the victim and that the victim is a public servant and was hurt while discharging his duty as a public servant. Similarly, to prove offence under Section 333 of 1PC, the prosecution will have to establish that, apart from causing hurt, the 12 accused also caused grievous hurt, The expression voluntarily causing hurt and grievous hurt will have to be understood in the light of the appreciation of these two expressions, found under Sections 320 and 321 of the IPC. 14. The conclusion to be drawn from the aforesaid provisions of IPC are that, the accused must have caused either hurt or grievous hurt to the victim and unless the guilt is established, it cannot be said that the offences under the above sections are established by the prosecution. In the instant case, the evidence of PW2 does not give the indication that it was the accused who has caused either hurt or grievous hurt r wher the evidence of PW2 is that he fell from his motorcycle into the ditch and was hurt. Therefore, the hurt cannot be said to have been caused by the accused. As such, the trial Court was in error in not 13 noticing this important aspect of the matter. When one of the essential ingredients of the offences under Section 332 and 333 is not established by the prosecution, the question of accused being convicted for the said offence does not arise. 15. For the above reasons, the appeal is allowed. The conviction of the appellant in respect of the offences under Sections 332 and 333 of IPC and the consequent sentence passed is set aside. Appellant is acquitted and as he is said to be on bail and therefore, his bail bond shall stand discharged. If any fine amount is deposited, the same shall be refunded to the appellant. Sd/ TTThrr1 j Uiiii