State Of Karnataka, vs Kotresh Naik
2021 Latest Caselaw 202 Kant

           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.
                                  :2:


     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

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

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

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

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

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.

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

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

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

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

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

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

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

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,

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

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

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

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

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

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.

The respondent-accused shall execute a

bond undertaking to pay the fine amount

within fifteen days.

SD JUDGE

SD JUDGE

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