IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6 T H DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE P.N.DESAI
Crl. A. No. 100265/2016
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY
THE SUB INSPECT OR OF POLICE,
KOTTUR POLICE STATION,
BALLARI DISTRI CT, THROUGH T HE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFI CE,
HIGH COURT OF K ARNATAKA,
DHARWAD BENCH.
- APPELLANT
(BY SRI. V.M . BANAKAR, ADDL. SPP)
AND:
KOTRESH NAIK S/ O ISHWARA NAIK,
AGE: 36 YEARS, OCC.: AGRI CULT URE,
R/O KHANDAGAL T HIMMALAPURA THANDA,
KUDLIGI TALUK , BALLARI DISTRICT ,
PIN CODE: 583 101.
- RESPONDENT
(BY SRI. SRINAND A.PACHHAPURE, ADVOCATE)
THIS CRIMINAL APPEAL IS FI LED BY THE STATE UNDER
SECTION 378(1) & (3) OF THE CODE OF CRIMINAL PROCEDURE
SEEKING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.03.2016
PASSED BY THE LEARNED III ADDL. DIST. & SESSIONS AND
SPECIAL JUDGE, BALLARI (SITTING AT HOSAPET E) IN S.C. NO.
5016 OF 2015 & ETC.
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THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, SREENIVAS HARISH KUMAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is preferred by the State challenging the judgment of acquittal passed by the III Addl. District & Sessions Judge, Ballari sitting at Hosapete in S.C. No. 5016/2015. The respondent being the accused in the said case faced trial for the offences punishable under Section 504, 506 and 307 of Indian Penal Code.
2. The prosecution case is based on a report made by one Rama Naik-PW1 about the incident that took place on 24.06.2014. Ex.P.1 is the report of PW1. He reported to the Police that about four years prior to 24.06.2014, his father entered into an agreement with the accused for purchasing two acres of land in Sy. No. 421 of his village for a consideration of Rs.80,000/- per acre and paid advance amount of Rs.50,000/- at that time. He undertook to pay :3: balance amount at the time of registration of the sale deed. Later on the accused further received Rs.25,000/- from his father. In the meantime the accused was sent to jail in connection with a criminal case and therefore he and his father took possession of the said land and started cultivating it. After the accused came out of jail, he demanded the accused to execute the sale deed, but he did not take interest in it. About three days prior to 24.06.2014, he sowed pearl millet in the land. PW1 came to know that at about 6 p.m. the accused had gone to the land and destroyed the entire sowing. At about 8 a.m. on 24.06.2014, he and his father questioned the accused near Gangabai hotel as to why he had destroyed the entire sowing. At that time the accused is said to have pushed his father down; when he and his mother interfered for the rescue of his father, the accused threatened to kill them and then stabbed his mother - Savitribai PW6 on her abdomen portion which resulted :4: in the intestine oozing out. Immediately the injured was shifted to hospital. PW1 later on went to Police Station at about 12.30 p.m. to report about the incident. The Police held investigation and chargesheeted the accused.
3. The trial Court charged the accused for the offences punishable under Section 504, 506 and 307 of IPC. Assessing the evidence of 13 witnesses examined by the prosecution, the trial Court came to the conclusion that the prosecution failed to prove its case beyond reasonable doubt and thereby acquitted the accused. Hence, this appeal.
4. We have heard arguments of Additional State Public Prosecutor and Sri Srinand A Pachhapure, Advocate for the accused-respondent.
5. Learned Addl. State Public Prosecutor has raised contentions that the trial Court has erred in acquitting the accused just by observing that there exists a civil :5: dispute between the parties and that all the material witnesses examined by the prosecution are related and thereby interested. On perusal of the oral testimonies of PW1, PW5, PW6, PW9 and PW12, it is not possible to infer that a civil dispute existed between the parties. Though there came into existence of agreement of sale as evidenced by PW2, no suit was preferred by none of the material witnesses so as to say that there was a civil dispute between the parties. Rather PW1, PW5 and PW6 have consistently spoken about the incident that took place on 24.06.2014. They have not been discredited in the cross-examination.
6. PW5 is an injured witness. She has given full account of injuries sustained by her, and her testimony finds further corroboration from PW8, the Doctor who examined her at the initial stage. PW9 is an eyewitness. The trial Court has failed to notice :6: that he too has partly supported the prosecution though he was treated hostile.
7. PW12 might not have supported the prosecution, but considering the evidence of PW1, 5 and 6 and as also part of evidence of PW9, it is possible to infer that the incident as disclosed in Ex.P.1 did take place. The nature of the injuries sustained by PW5 is grievous in nature. The injury was on the vital part of the body and for all these reasons, the trial Court should have convicted the accused for the offence punishable under Section 307 IPC. He therefore argues that this appeal deserves to be allowed and accused convicted for all the offences charged against him.
8. Per contra Sri Srinand A. Pachhapure argues for sustaining the judgment of the trial Court, his contentions are that Ex.P.2-agreement of sale shows dispute between the parties. Though actually suit was :7: not pending, the accused did not execute the sale deed and it appears that he had disputed the delivery of possession to PW1 and PW6. Trial Court's conclusion about civil litigation is in this background and not that a suit was pending.
9. His second point of argument is that PW1, PW5 and PW6 belong to the same family and obviously they are interested. The prosecution papers disclose that the incident took place near a hotel at about 8.00 a.m. and the evidence of the injured-PW5 shows that many people gathered at that time. For this reason it was necessary for the Investigating Officer to have examined independent witnesses. Though PW1, PW5 and PW6 have stated about the incident, their testimonies tainted with interestedness should find corroboration from independent witnesses, else their evidence can not be believed.
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10. He further submits that PW9 has not fully supported the case of the prosecution and PW12 has totally turned hostile. The Investigating Officer did not send the knife-MO1 to FSL; he also did not collect the blood stained mud from the spot; he also did not seize the blood stained clothes of the injured. These being the lapses in the investigation, it is not possible to hold that the prosecution case has stood proved beyond reasonable doubt and therefore rightly the trial Court came to the conclusion to acquit the accused. He therefore submits that there are no grounds to allow this appeal.
11. We have considered the points of argument.
12. If the judgment of the trial Court is perused, what is found is that it is of the opinion that PW1, PW5 and PW6 belong to the same family and two eyewintesses-PW9 and PW10 have turned hostile. It has also assigned the reasons that the civil dispute is :9: pending and therefore the Criminal Courts must be slow while appreciating the evidence when the parties are agitating civil dispute. By referring to the evidence given by the Doctor-PW8, the trial Court has expressed an opinion that the ocular evidence is not consistent with the medical evidence. It has given benefit of doubt to acquit the accused.
13. Before we appreciate the evidence, we would like to refer to the evidence.
PW1-Ramanaik is the son of PW5 and PW6, giving details of agreement of sale that came into existence, he very specifically stated that a day prior to occurrence of the incident, he had sowed pearl millets in the land and that the accused went there and destroyed the entire sowing. On the next day, when PW.1 and his father questioned the accused about it, the latter picked up quarrel with them. When Venkateshnaik-PW.9 interfered for pacifying the : 10 : quarrel, the accused stabbed on the abdomen of his mother, as a result of which the intestine came out. He has also stated about threat given by the accused to his family members.
Thereafter, he shifted his mother to Government Hospital, Kudligi and from there to VIMS Hospital, Ballari for further treatment. Then, he went to the police station and made a report of the incident as per Ex.P1. He has identified the sale agreement as per Ex.P2. If the cross-examination of this witness-PW.1 is perused, there is nothing worth mentioning here. The defence counsel has found himself satisfied by giving suggestion denying entire incident, the result is that PW.1 has not been discredited.
14. PW.5 is the injured witness, she has stated that the land was in possession of her family and one day at about 06:00 p.m., the accused went to the land and destroyed the sowing pearl millets. On the next day at : 11 : about 08:00 a.m., when she and her husband questioned the accused about it, he assaulted her husband and then inflicted stab injury on her stomach. As a result of which, she fell down unconscious having sustained bleeding injuries. She has identified M.O.1 stating that it was the knife used for stabbing her. PW.6 - Meghanaika is the husband of PW.5. He too accounts the incident in the manner how PW.5 has stated. Both these witnesses have not at all discredited in their cross-examination.
15. PW.9 - Venaktesh Naik said to be the eye witness. His testimony discloses that, there took place a quarrel near Gangibai Hotel between accused and PW.5, in the background of the purchase of piece of agricultural land and at that time, the accused hit PW5 with a knife and caused injury. It appears that since this witness did not fully support the case of the prosecution, he was treated hostile by the prosecutor : 12 : and cross examined him. The defence did not cross- examine him thereafter.
16. PW.12 is another eye witness to the incident, he has not supported the prosecution case in entirety. He has denied to have seen the incident and given statement to the police with regard to the incident. PW.10 is examined for the purpose of proving the agreement of sale - Ex.P2 said to have come into existence between accused and PW.6.
17. PW.7 is a panch witness for Ex.P4 besides also being an eye witness, and he has deposed that at about 08:00 a.m., near Gangibai hotel, the accused picked up quarrel with PW.6, pushed him down during the quarrel, and then took out a knife and inflicted stab injury to his aunt i.e., PW.5. He further stated that she sustained bleeding injury and was taken to Kudligi hospital and from there to Bellary hospital. He has also given the evidence with regard to drawing up : 13 : of spot mahazar - Ex.P4. The cross-examination of this witness shows that his evidence with regard to inflicting injury to PW.5 and pushing PW.6 have not been assailed at all.
18. PW.2 is the another witness to spot mahazar, he supported the prosecution case. PWs.3 and 4 have been examined for establishing the seizure of MO.1 - Knife and they have not supported the case of the prosecution.
19. PW.8 is the doctor, her evidence is that on 24.06.2014 at about 08:30 p.m., she examined a woman by name Savitri Bai who was brought with the history of assault. She noticed the presence of penetrating injury on the abdomen. She gave first aid and sent her to VIMS hospital, Ballari for further treatment. Ex.P6 is the wound certificate given by her. She has further stated she secured the report : 14 : from VIMS hospital and thereafter, she issued Ex.P6, the wound certificate.
20. PW.11 is the Police Officer who registered the First Information Report as per Ex.P9 after receiving the report of incident as per Ex.P1. From his testimony, it can be made out that he wanted to question the injured in the hospital and for this purpose, he sought the opinion of the Doctor whether the injured was in a fit condition to give statement. He came to know from Doctor that patient was not in a condition to give statement. Ex.P10 is a request letter by PW.11 to the doctor. PW.13 is the Police Sub-Inspector who completed investigation and filed the charge sheet.
21. On re-appreciation of evidence, we find that the agreement of sale said to have been executed as per Ex.P2 in favour of PWs.1 and 6 could be the cause for incident to take place on 24.06.2014. No doubt, the : 15 : dispute concerning sale of land is civil in nature, but the fact remains that no suit was pending in any of the courts. The trial Court has made an observation that there is a civil litigation pending and this observation, we find erroneous. Of course, none of the witnesses speaks about the pendency of the Civil suit in any court, however, if the evidence with regard to occurrence of incident is perused, we notice that the testimony of PWs.1, 5 and 6 can be believed notwithstanding hostility of PW.12. As observed above none of these three witnesses has been discredited in their cross-examination. It is true that all belong to the same family and for this reason alone, it is not possible to hold that they are interested witnesses. The defence has failed to bringforth the element of interestedness in their testimonies. It is well established principle that just because witnesses are closely related, their testimonies should be disbelieved. If the witnesses are found trustworthy, : 16 : their evidence may be acted upon. It is worth mentioning here that another witness - PW.9 - Venkatesh Naik also says that the accused hit PW.5 with knife. PW.7 who has been examined for proving the spot mahazar also speaks about the incident in which PW.5 got hurt.
22. The argument of Sri.Shrinand Pachapure about the other possibility of occurrence of incident can not be appreciated for the reason that while Cross- examining PW.5, she was not suggested atleast that she fell down on a sharp object from a certain height and thereby got injured. No doubt, there is a suggestion to that effect to PW.8. But merely giving that suggestion to Doctor-PW8 without giving that kind of suggestion to injured is of no consequence. The suggestion given to PW.5 is that injury was self- inflicted injury, which we find to be inconsistent with the suggestion given to doctor. Her testimony is to be believed for the reason that she was the doctor who : 17 : given first aid to PW.5. She might have issued Ex.P6 after receiving the report from VIMS Hospital, Ballari. But her evidence, about giving first aid and noticing the presence of the injury on the stomach cannot be disbelieved. Therefore, we are of the opinion that the medical evidence of PW.8 corroborates the testimony of PWs.1, 5 and 6. PWs.3 and 4 might not have supported the prosecution with regard to seizure of knife, however, testimony of the investigating officer can be believed because he seized the said knife from the possession of the accused.
23. We find that there is consistent evidence with regard to happening of the incident as asserted by PW.1, and further established by PWs.5, 6 and 9. Therefore, for these reasons, we are of the opinion that reasons assigned by the trial Court for acquitting the accused cannot be sustained. Though we hold that the evidence establishes the incident, we find it difficult to make out an offence punishable under : 18 : Section 307 of I.P.C. It is for the reason that testimonies of PWs.1, 5 and 6 do not disclose the intention to make an attempt on the life of PW.5. The incident might have taken in the background of a land dispute and that too when PWs.1, 5 and 6 came near Gangibai hotel to question the accused as to why he destroyed the sowing made on the previous day. When the quarrel broke out, the accused might have resorted to inflicting injury to PW5. No doubt, in Ex.P6, it is mentioned that injuries are grievous in nature, but taking into consideration the over all facts and circumstances, we find that a case is made out for an offence under section 324 of IPC.
24. We also find that there is no evidence for other offences punishable under Sections 323, 504 and 506 of IPC. Therefore, we come to the conclusion that the case of the prosecution stands proved for the offence punishable under Section 324 of IPC and accordingly, we hold that the accused/respondent is guilty of the : 19 : said offence and convict him accordingly and sustain the judgment of acquittal for other offences.
Further, we are of the opinion that accused/respondent needs to be heard regarding the sentence to be imposed. Therefore, non bailable warrant is ordered through Superintendent of Police, Ballari for production of the accused before this Court on 12.01.2021.
SD JUDGE SD JUDGE bv v hj : 20 : CRL.A.No.100265/2016 SHKJ & PNDJ:
12.01.2021 ORDER ON SENTENCE The respondent-accused is produced by Assistant Sub-Inspector-Sri Abbash and Police Constable-Sri Basavaraj of Kottur Police Station by executing warrant.
We have questioned the accused regarding the sentence to be imposed on him. He submits that his wife has deserted him. He has four children, i.e. two daughters and two sons, and that his first daughter is in advanced stage of pregnancy. His son-in-law who is a drunkard, has deserted his daughter. He submits that he is a coolie having daily income of Rs.200-250/- and that he alone has to take care of his family and look after his pregnant daughter. He requests for taking lenient view.
Learned counsel for the respondent-accused also pleads for taking lenient view in the light of circumstances submitted by the respondent.
Section 324 of I.P.C. provides for imposing punishment of imprisonment for a period that may extend : 21 : upto three years, or fine, or with both. Though we are of the opinion that in the background of the nature of injuries sustained by PW5, some minimum period of imprisonment has to be imposed; taking into consideration the fact that the accused has to take care of his minor children and also to attend pregnant daughter, lenient view may be taken or otherwise his family members will suffer. Therefore, only fine may be imposed instead of imposing punishment of imprisonment. Therefore, the following:
ORDER The respondent-accused is sentenced to pay a fine of Rs.25,000/-. In default to pay the fine, he shall undergo simple imprisonment for a period of six months. Out of the fine amount, Rs.5,000/- shall be defrayed towards prosecution expenses and Rs.20,000/- shall be paid to PW5 towards compensation.
The entire fine amount shall be paid
within fifteen days.
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The respondent-accused shall execute a bond undertaking to pay the fine amount within fifteen days.
SD JUDGE SD JUDGE CLK