DATED

10.02.2010 PASSED BY THE C.J.(JR.DN.) AND JMFC,

K.R.PET IN C.C.NO.138/2007 AND SET ASIDE THE

JUDGMENT DATED 03.08.2012 PASSED BY THE F.T.C.-III,

MANDYA IN CRL.A.No.25/2010.

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THIS CRIMINAL REVISION PETITION COMING ON

FOR HEARING THIS DAY, THE COURT MADE THE

FOLLOWING:-

O R D E R

Heard Sri. G.S.Balagangadhar, the learned Amicus

Curiae for the petitioner and Smt.Rashmi Jadhav, learned

High Court Government Pleader for the respondent-State.

Perused the records.

2.

The

factual

matrix

of

the

case

of

the

prosecution before the trial Court is that on 12.11.2006 at

about 7.00 am near the house of the accused situated at

Attimaranahalli Village within K.R. Pet town police limit,

the P.Ws.1 and 2 went to the house of accused questioning

him the act of harvesting the maize crop grown by the

P.W.1 at his land, the accused picked up a quarrel with

the P.W.1 and assaulted him with the iron chain inflicting

the injury on his back, head and other parts of the body as

well as assaulted on his right thumb inflicting grievous

injury. It is also stated that, the accused also assaulted

P.W.2 on his back, head and cheek causing simple injuries,

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when P.W.2 came to rescue of P.W.1 and hence, invoked

the offence punishable under Sections 326 and 324 of IPC.

3.

The police have investigated the matter and

filed charge sheet against the accused and secured the

accused before the trial Court and accused did not plead

guilty and claimed to be tried. Hence, the prosecution

examined seven witnesses as P.Ws.1 to 7, among them

P.W.1 and 2 are the injured witnesses; P.Ws.3 and 4 are

eye witnesses; P.W.5 is the doctor who treated the P.W.1

and 2; P.W.6 is the mahazer witness and P.W.7 is an

investigating officer. The prosecution got marked five

documents as Ex.P1 to P5(a) and one material object as

M.O.1. The trial Court after considering both the oral as

well as documentary evidence, convicted the petitioner for

the offences punishable under Sections 326 and 324 of IPC

and

imposed

fine

of

Rs.3,000/-

and

Rs.2,000/-

respectively for the said offences and also awarded default

sentence.

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4.

Being aggrieved by the judgment of the trial

Court, the petitioner herein has filed a criminal appeal

No.25/2010 before the Appellate Court. The appellate

Court on reappriciation of the evidence, dismissed the

appeal by confirming the judgment of the trial Court.

Hence, present petitioner is before this Court.

5.

Learned Amicus Curiae appearing for the

petitioner in his argument, vehemently contended that

the incident was taken place at 7.00 a.m. and Ex.P1-

complaint discloses that the complaint was lodged at 10.00

am, on the very same day and he also brought to notice of

this Court that an endorsement available in the FIR is

submitted to the Court on the next day i.e., on 13.11.2006

along with the original complaint at 10.30 a.m. as such,

there is a delay in sending the FIR. In the meanwhile,

mahazar was conducted in terms of Ex.P2. But Ex.P2 -

Mahazar was not placed before the Court immediately. The

Amicus Curiae also vehemently contended that though the

prosecution invoked the offence under Section 326 of IPC,

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X-ray is not produced before the Court. He further

vehemently contended that P.W.6 is the mahzar witness

regarding seizure of the weapon used for committing the

offence, he has also not supported the case of the

prosecution. Inspite of the same, the trial Court committed

an error in convicting the petitioner and passed the

sentence. With regard to the sentence also, learned

Amicus Curiae contended that the injured P.W.1 and the

accused are the brothers and it is also emerged in the

evidence of P.W.1 that the partition was taken place about

twenty years ago and there is a dispute with regard to

harvesting of the crop and incident was suddenly taken

place when the injured went to the house of accused-

petitioner and questioned the act of the petitioner and also

the same has not been considered by the trial Court as

well as the appellate Court regarding