— ci cc •Go H Go Go z > Go Go ci > Go cic Go cc cc cc L Go cc cc 77 7) ci Go cm Go 1 < ? G7HGo7) 17 ci) — - 0- cc cci * 01 (Th 0 cii (1 cm ci) ( -1 o b. C: H 71 -1 1) ciC cii - 71 - — cc (7 ci. ci -. ci) :17 (71 (7 Cl C,) ci CO — (C Ii 7): • o C ii’ - .7) —Ccc 0 cc ci oGoG0 cc C Go o G o cc 71 cc_ (D 71 Clcio cc -<ci 7)ci 71 cc 77 ci) 7) Go - cc77) cc -cc H Go 7(7 Go C Go C >1 Go Go -cc Go > Go Go 771 771 ci o Go Go 77 7 Go Go Go Go H 7(7 —77 77 77 C H c 77 E 711 H 77C Go ZO Go Cc cc X. Go1 Go 7777 Go> 2 7777 Go >2 0 77 Go S.C.No.130/2009, dated 11.06.2010 and acquit the appellant. This appeal coming on for admission this day, the court delivered the following: JUDGMENT The appellant has challenged his conviction and sentence for the offence punishable under Sections 323, and 354 of IPC, on a trial held by Sessions Judge, Bellary. 2. Sans unnecessary details, the prosecution version unfolded during the trial is as under: The appellant herein is thc accused . It is the case of the prosecution that on 11.05.2009 in the evening at about 6.00 p.m. P.w.5-Manjula was proceeding from Kulageri cross on the road leading to the Tapasakatti to answer the call of nature and her children also chased her. When P.W.5 noticed her children, she abused them and appellant who is the accused before the trial court, mistook it as he was being abused by P.W.5-Manjula and enraged by the abuse, the appellant bet P.W.5-Manjula on her breast, face and tried to throttle the neck. It is in these circumstances, there was intervention of some 3 persons and she was saved and taken to the Bellary Hospital for the purpose of treatment. Her mother P.W. 1- Tulachavva submitted a complaint before P.W.9- S.S.Masuti-P.S.I. who recorded the oral complaint, in writing and obtained her signature and registered the crime for the offence punishable under Sections 323 and 354 of IPC and sent the complaint-Ex.P. 1 and F.I.R. to the Magistrate . P.W.9 visited the spot and in the presence of P.W.6 and another witness, held the spot mahazar Ex.P.7, recorded the statement of P.Ws.3,4 and 5, collected the injury certificate-Ex.P.8 and after completion of investigation, filed thc charge sheet against the appellant for the offence punishable under Sections 504 and 307 of IPC. 3. During the trial, thc prosecution examined P.W. 1 to P.W.9 and in their evidence got marked Ex.P. I to P.11. The statement of the accused was recorded under Section 313 of Cr.P.C. He has taken the defence of total denial. 4. The trial court after hearing the parties and on appreciation of material on record, convicted the kC 4 appellant for the offences punishable under Sections 323 and 354 of IPC and ordered to undergo simple imprisonment for 6 months and to pay fine for the offence punishable under Section 323 of IPC and simple imprisonment for 1 year and to pay fine of Rs.800/- for the offence punishable under Section 354 of IPC. 4. Aggrieved by the conviction, the present appeal has been filed. 5. 1 have heard the learned counsel for the appellant and also the High Court Government Pleader. 6. The point that arise for my consideration is as under: Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offence punishable under Sections 323 and 354 of IPC? 7. It is the contention of the learned counsel for the appellant, that there are contradictions, omissions and discrepancies in the evidence of the prosecution and that the prosecution has not made out the offence under Section 354 of IPC and in these circumstances, he 5 submits that the appellant is an innocent person and has sought for allowing the appeal. 8. The learned High Court government Pleader has supported the judgment and order passed by the trial court. 9. I have scrutinized the evidence lead by the prosecution P.W. 1 and P.W.2 are the mother and father of the victim-P.W.5-Manjula. P.W.3-Meenakshi is her sister and P.W.4-Hanamant is an independent witness. P.W.5- Manjula in her evidence states that she was proceeding by the side of the road leading Tapasakatti to answer the call of nature and as her children were behind her, she abused them and the accused who was passing near by mistook it that he was being abused and after he came and bet on the brest, face and tried to throttle the neck. This incident of the appellant was witnessed by P.W.4 who is an independent witness. At that time he was passing by the side of the place where this incident took place and he consistently states in his evidence about the assault caused by the appellant-accused. Furthermore, P.Ws. 1 to 3 who are the parents and sister of C) Manjula consistently stated in their evidence that after hearing the quarrel they came and saw the accused they went to the spot after hearing the quarrel and saw the appellant-accused causing assault on her sistcr-P.W.5- Manjula. So there is evidence of an independent witness which corroborates the evidence of P.W.5 and so also P.W.3 the sister of P.W.5 states having witnessed thc incident of assault and this evidence is corroborated by medical evidence as well. 10. P.W.7- Dr S.B.Chimmanakatti admitted that, P.W.5- Manjula was admitted in the hospital on 11- 5-2003 at 8:30 p.m. i.e. 2½ hours of the incident. She was admitted with a history of assault. The doctor noticed 3 injuries, one on the abdomen, other on the breast and the third on the head. All these three injuries were contusion. So within 2½ hours of the incident, the injured was taken to the hospital and treatment was given. The doctor has certified all these three injuries as simple in nature. Injury certificate is produced at Ex.P.8. The learned counsel though contended that the MW register has not been produced, in my opinion, the evidence of P.W.7 and the injury certificate are sufficient to prove the nature of the injuries suffered by the victim. So, the oral evidence of the witness is corroborated by the medical evidence also. 11. So far as the nature of the offences are concerned, the appellant has been convicted for the charge punishable under Sections 323 and 354 of IPC. As could be seen from the fact that P.W.5-Manjula was abusing her children and it was mistook by the appellant that he is being abused and thercforc, enraged by the abusc, caused assault on P.W.5-Manjula. The perusal of the facts reveal, that though there is use of criminal force or assault by the appellant-accused on the victim, it is not the intention to outrage her modesty. It is in the evidence of the witnesses that the appellant—accused being enraged by abused caused the assault on the breast and face and tried to throttle the neck, he had no intention to cause the death. His intention was only to cause assault. There is nothing as stated in the evidence of these witnesses that the appellant was intending to outrage modesty of P.W.5- 8 Manjula. In these circumstances, conviction of the applant for the offence punishable under section 354 of IPC is illegal. 12. There is ample clinching material on record by way of the evidence of injured witness P.W.5-Manjula, which is corroborated by the independent evidence of P.W.4, P.W.4 also supported the version of P.W. 1 and P.W.2 who went to the spot immediately after the incident and speak about the presence of the accused and and there is medical evidence of P.W.7, injury certificate Ex.P.8 to corroborate the ocular evidence. So there is ample material to prove that the appellant has committed offence punishable under section 323 of IPC. 13. The prosecution has examined P.W.6- attesting witness for spot mahazar-Ex.P. 1. No such incriminating material is found in Ex.P.7. The prosecution also examined P.W.8-the police constable who apprehended the appellant-accused and produced before the police Sub Inspector and P.W.9-Investigating Officer, who after registration of the complaint held investigation and filed the charge sheet. The whole scrutiny of evidence 9 led by the prosecution establish that the appellant has committed an offence punishable under section 323 of IPC and conviction for the offence punishable under section 354 of IPC is erroneous and illegal. 14. So far as the sentence for the offence punishable under section 323 of IPC is concerned, the incident had iaken place duc to some misunderstanding. In fact, the appellant thought that he was abused by P.W.5 though she was abusing her children and enraged by that abuse, thc appellant caused the assault on P.W.5. thereby she sustained the injuries. So taking into consideration the gravity and the nature of the offence, the circumstances in which the incident occurred, 1 am of the opinion, that the sentence of imprisonment of 3 months would be reasonable and six months awarded by the trial court is excessive. The appellant is entitled to acquittal for the offence punishable under section 354 of IPC. En that view of the matter, I answer the above point partly in the affirmative and partly in the negative and proceed to pass the following: It) ORDER i) The appeal is allowed in part. Confirinin the conviction of the appuilani fur the oIl rice )Li slubie linclur section 323 of I PC. his conviction and sentence for the offence punishable under section 354 of IPC is set aside. He acquitted of the charac under Section 3n4 of I PC The appehant is ordered to undergo simple imprisonment for three months and pay a fine of Rs 1000/- in default to undergo simple imprisonment br one month jul Flis bail bonds arc conceited 1110 trial court is di ru cied to secure presen.ce o.f t.he. accused to undergo the sen.tcnce, Sd1 JUDGE