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2018 Supreme(SC) 1041
SUPREME COURT OF INDIA
R. BANUMATHI, INDIRA BANERJEE, JJ.
C.R. Kariyappa – Appellant
Versus
State of Karnataka – Respondent
Criminal Appeal No. 781 of 2009
Decided On : 05-09-2018
IMPORTANT POINTS
Apprising a child witness about court proceedings ia not tutoring.
Contradictions in evidence of witnesses’ are not material if corroborated and supported by medical evidence.
Applicability of sections 325 and 326 IPC discussed.
Headnote:(a) Criminal trial – Evidence – Child witness appearing for the first time in court – apprised about court proceedings and that he has to speak about the occurrence – cannot be said that the child witness was tutored. (Para 9)
(b) Criminal trial – Appreciation of evidence – Contradictions in evidence of witnesses’ not material if corroborated and supported by medical evidence – Held, High Court has rightly reversed the order of acquittal and convicted the appellant. (Para 10, 11)
(c) Indian Penal Code, 1860 – Section 326 and 325 – Appellant convicted u/s 326 – He used a wooden stick, not a dangerous weapon – Conviction u/s 326 not proper – Conviction converted into one u/s 325 – Incident happening in 1996 – Sentence reduced to one year and a fine of Rs.50,000/- imposed – To be as compensation to the injured PW-2. (Para 13, 14, 15)
Facts of the case:
The appellant working as a teacher 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. In spite of the treatment, there was loss of eye-sight on the left eye of PW-2.
The Trial Court acquitted the appellant.
The High Court set aside the order of acquittal and convicted the appellant.
Finding of the Court:
Conviction u/s 326 is not proper.
Result: Appeal partly allowed.
JUDGMENT :
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 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 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 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
