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   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

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

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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

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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

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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

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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