Karnataka High Court

Siril @ Munel S/O. Jaki Pinto vs State Of Karnataka on 2 March, 2021

Author: Mohammad Nawaz

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
        DATED THIS THE 2ND DAY OF MARCH, 2021
                        BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                  CRL.A.No.2904/2011

BETWEEN:

SIRIL @ MUNEL S/O JAKI PINTO,
AGE;41 YEARS,
R/O MUNDAGI, KALVE GRAMA,
TQ:KUMTA.                                 ...APPELLANT

(BY SMT.NIRMALA B.G., ADVOCATE FOR
    SHRI S.S.YADRAMI, ADV.)

AND:

STATE OF KARNATAKA,
KUMTA POLICE,
REP. BY SPP, HIGH COURT BUILDING,
DHARWAD.                               ...RESPONDENT

(BY SRI. PRAVEEN K UPPAR, HCGP)

      THIS APPEAL IS FILED UNDER SECTION 374 OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND SENTENCE DATED
31.03.2011 PASSED BY THE SESSIONS JUDGE, FAST TRACK-II
COURT, KARWAR, U.K. IN S.C.No.53/2007, CONVICTING AND
SENTENCING THE APPELLANT FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 504, 506 AND 307 OF IPC AND ACQUIT THE
APPELLANT FOR THE ALLEGED OFFENCES.

     THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                  2




                           JUDGMENT

This appeal is preferred against the judgment

and order of conviction and sentence passed by

the Court of Sessions Judge, Fast Track Court-II,

Karwar, Uttar Kannada, in Sessions Case

No.53/2007 dated 31.03.2011, wherein the

accused/appellant has been convicted and

sentenced for offences punishable under Sections

504, 506 and 307 of IPC.

2. For the offence punishable under

Section 504 of IPC, the accused is sentenced to

undergo simple imprisonment for a period of one

month, for the offence punishable under Section

506 of IPC, he is sentenced to undergo rigorous

imprisonment for a period of three months and for

the offence punishable under Section 307 of IPC,

he is sentenced to undergo rigorous imprisonment

for a period of three years and to pay a fine of

Rs.5,000/-, in default, to undergo simple

imprisonment for a period of another three

months.

3. Heard the learned counsel for the

appellant and the learned High Court Government

Pleader for the respondent-State and perused the

material on record.

4. The factual matrix of the case as borne

out from the records are as under:

PW-1 Smt.Devaki Hanumanth Gouda is a

resident of Mundagi Kalve Grama of Kumta taluk.

PW-6, Hanumanth Kuppu Gouda is her husband.

The accused is also a resident of the same village.

About one month prior to the alleged incident, the

Government was forming a link road to connect

Gonihole Khatri and Sirsi Nilkund main road. The

said link road was supposed to be formed through

the lands of PW-1, PW-6 and accused. The

accused had requested the authorities not to form

the road through his land on a higher level instead

to form the road through his land situated on the

lower side. PW-1 and PW-6 also requested the

authority to change the course of the road and

pursuant to the said request, new road was formed

passing through the land of the accused in the

higher level. Hence, the accused was nursing

grudge against PW-1 and PW-6.

5. On 04.01.2007, at about 8 a.m, while

PW-1 and PW-6 were removing the mud in their

field, the accused came and abused PW-6 by using

filthy language stating that because of them he

lost his fertile land. Thereafter, he assaulted PW-

6 with a sickle on his head, left shoulder, right

hand and other parts of the body. PW-6 collapsed

on the ground. When his wife PW-1 questioned

the accused as to why he is assaulting her

husband, the accused saying that he has already

finished her husband, assaulted PW-1 with the

same sickle on her head. On hearing the hue and

cry of PW-1, her sister Nagamma Govinda

Gouda/PW-7, her brother-in-law Ramachandra

Kuppu Gouda/CW-11, Hammu Kuppu Gouda/PW-10

and other villagers rushed to the spot. Seeing

them, the accused ran away throwing the sickle.

       6.     PWs-1          and        6     were        shifted      to

Government Hospital, Kumta.                        PW-6 was shifted

for higher treatment to a major hospital in Goa.

The statement of PW-1 was recorded in the

Government Hospital, Kumta, as per Ex.P.1 by the

PSI-PW-11, Kumta Police Station. Accused came

to be arrested on the same day and at his

instance, the sickle-M.O.9 was recovered. On

completion of investigation, PW-14, the Police

Sub-Inspector filed charge-sheet against the

accused.

7. After committal of the case to the Court

of Sessions, the learned Sessions Judge framed

charges against the appellant/accused for offences

punishable under Sections 504, 506 and 307 of

IPC. Accused pleaded not guilty and claimed to be

tried.

8. The learned Sessions Judge after

considering the evidence and material on record

convicted and sentenced the accused-appellant for

the charged offences as noted supra.

9. Learned counsel appearing for the

appellant has contended that the prosecution has

failed to prove its case against the appellant

beyond all reasonable doubt. She has contended

that all the witnesses are interested and there are

several discrepancies in their evidence. As such,

their evidence cannot be accepted to convict the

accused. She contends that a false case was

lodged against the appellant as he had complained

against some illegal activities of the complainant's

husband namely, PW-6. She contends that even if

the case of the prosecution is accepted, then it

cannot be said that there was any intention on the

part of the appellant to commit the murder of PW-

6. Even though the witnesses have stated that

they were present at the scene of occurrence,

however, they have not tried to intervene or even

PW-6 has not tried to defend himself though he

was holding a pick axe and other agricultural

instruments. She therefore contends that the

incident has not taken place as alleged by the

prosecution. She further contends that there is no

convincing evidence to hold that the injured has

sustained any grievous injuries. She therefore,

contends that the entire approach of the learned

Sessions Judge in convicting and sentencing the

accused has resulted in miscarriage of justice.

Accordingly, she prays to allow the appeal.

10. Per contra, learned High Court

Government Pleader has contended that in view of

the evidence of the injured witnesses namely PWs-

1 and 6 which is supported by the medical

evidence, the prosecution has proved the guilt of

the accused beyond all reasonable doubts. He

contends that the accused has assaulted PWs-1

and 6 on the vital parts of their body with an

intention to commit their murder and therefore,

submits that the Court below was justified in

convicting the accused for the charged offences.

Accordingly, seeks to dismiss the appeal.

11. In order to establish the guilt of the

accused, the prosecution has got examined PWs-1

to 15 and got marked Exs.P.1 to 16 as well as

M.Os.1 to 9.

     12.       PW-1      and    PW-6     are       the   injured

witnesses.      The case of the prosecution is that on

04.01.2007 when PW-1 and her husband (PW-6)

were removing mud in their land, accused went

there holding a sickle and abused PW-6 in filthy

language and stating that he will not leave them,

assaulted PW-6 with the sickle all over his body

and assaulted on the head of PW-1 who tried to

intervene and attempted to commit their murder.

13. According to the prosecution, PWs-3, 7

and 10 are the other eye witnesses to the incident

in question. PW-3 is the sister-in-law of PW-6. A

careful perusal of her evidence goes to show that

when she came to the spot, the accused was

assaulting PW-1 on her head. Thereafter, he ran

away from the spot after throwing the sickle.

PW-7 is the elder sister of PW-1. It is elicited in

her cross-examination that she went and informed

PW-3 and thereafter, PW-3 came to the spot. It is

also elicited that the house of PW-3 is situated

about 1 km away. She has stated that after half an

hour, PW3 came to the spot. Similarly, she has

stated that she is not aware as to when CW11 and

PW10 came to the spot. If the evidence of PW7 is

appreciated, then it is difficult to accept that PW3

is an eye-witness to the incident. PW7 has clearly

stated that PW3 came to the spot after she

informed about the incident, which is half an hour

after the incident. Even according to PW10, it was

PW7 namely Nagamma Govind Gouda who came

and informed about the incident of assault.

Immediately, he went to the spot, at that time,

PW6 had fallen on ground. According to him, he

saw the accused assaulting PW1 with a sickle on

her head, thereafter, the accused threw the sickle

and ran away from the spot. PW7 has not stated

that she informed PW10 about the incident. In the

cross-examination, she has stated that she does

not remember as to when Hammu Kuppu Gouda

(PW10) came to the spot. She has only stated

that she informed PW3 about the incident in

question. Hence, it is difficult to accept the case

of the prosecution that PW3 and PW10 are the

eye-witnesses to the incident in question.

14. According to PW7, she was working near

the land of the injured at about 8 a.m. on

4.1.2007. She has stated that the accused came

to the spot holding a sickle and started abusing

PW6 and assaulted on his head and other parts of

the body and when PW1 tried to intervene, she

was also assaulted by the accused with the same

sickle on her head.

15. PW1 and PW6 are the injured witnesses.

Their evidence clearly disclose that this accused

came near the place where they were digging the

mud. He assaulted PW6 on his head and other

parts of the body with a sickle. When PW1 tried to

intervene, the accused assaulted her with the

same sickle on her head. Immediately thereafter,

the people who gathered there shifted both PW1

and PW6 to Government Hospital, Kumta. In the

said hospital, they were treated by PW8-

Dr.Deepak K Naik. It is seen that PW8 gave first

aid treatment to PW6 and thereafter, he was

referred to a major hospital. As such, PW6 was

taken to a Hospital at Bambolim, Goa wherein he

was examined and treated by PW15-Dr.Wilfred

D'souza.

16. Insofar as the injuries sustained by PW1

is concerned, wound certificate issued by PW8 as

per Ex.P9 goes to show that she sustained

cut lacerated wound measuring 10cms x 3cms

(parietal area). The said injury is stated to be

simple in nature. There is no wound certificate

issued in respect of PW6 from General Hospital,

Kumta. However, PW15 has issued Wound

Certificate in respect of PW6 as per Ex.P14. The

injuries mentioned therein are as under:

a) Multiple lacerations both upper limbs with compound injuries.

b) Left shoulder with chip fracture of left acrominium with undisplaced fracture of head of left humerus with grade-II compound fracture

of mid-shaft left ulna without distal neurovascular deficit with lacerations of the scalp.

The said injuries are stated to be grievous in

nature.

17. According to the prosecution, sickle was

recovered at the instance of the accused. The

said sickle is marked as MO9. PW15 has given

opinion that if a person is assaulted by

sickle(MO9), the above said injuries could be

caused. The witnesses have stated that after

assaulting PW1 and 6, the accused ran away from

the spot throwing the sickle in the bush. The said

sickle was recovered at the instance of accused

under a mahazar-Ex.P6 in the presence of panch

witness namely PW5.

18. The prosecution has alleged that the

accused assaulted both PW1 and PW6 with an

intention to commit their murder. Insofar as

assault on PW1 is concerned, it is alleged that

when she questioned the accused as to why he has

assaulted PW6, at that time, he caused injuries on

her head with the sickle. The defence taken by

the accused is that a false case was foisted

against him, because he was giving information

with regard to sale of illicit liquor by PW6. Even

though it was elicited from PW6 in his cross-

examination that the accused was giving

information regarding illicit sale of liquor,

however, he has denied that on that ground he

lodged a false complaint against him. The fact

remains that both PW1 and 6 have sustained

injuries. Same has been corroborated by medical

evidence. PW8 and PW15 are the doctors who have

treated PW1 and PW6 respectively and issued

wound certificates marked as Exs.P9 and P14 and

therefore, the prosecution has been able to

establish that the accused caused injuries to both

PW1 and PW6 with the sickle.

19. From the evidence of both PW1 and

PW6, it is seen that after the accused assaulted

PW6, he fell down and when PW1 questioned the

accused, he assaulted on her head with the sickle.

The injuries sustained by PW6 are simple in nature

and there is no material to show that the accused

once again tried to assault PW1 with the same

sickle so as to do away with her life. Insofar as

PW6 is concerned, it is not alleged that even after

he fell down, the accused tried to assault him so

as to commit his murder. PW8 has stated that the

injuries caused could be possible with a sickle and

he has further stated that if the said injuries were

deeper, then that would have caused the death.

Therefore, it shows that the injuries sustained by

PW1 and PW6 were not sufficient in the ordinary

course to cause their death.

20. According to the prosecution, the

injuries sustained by PW6 are grievous in nature.

PW15, who issued Ex.P14-Wound Certificate in

respect of PW6 has stated that X-ray findings

show that there was undisplaced fracture of mid-

shaft left ulna etc. However, in the cross-

examination, he has admitted that he has not

taken or kept X-ray of the injured. He has also

stated that he is not aware as to whether Goa

Medical College Hospital authorities has handed

over the X-ray film to Kumta Hospital. Hence,

even though he has stated as per X-ray findings

PW6 had sustained fracture, however, he has

admitted that he has not taken or kept X-ray of

the injured. X-ray films are not produced and

marked in evidence. The prosecution when alleges

that the injured has suffered grievous injuries on

the basis of the fractures sustained by him, it is

equally important for the prosecution to establish

the said fact beyond all reasonable doubts. As per

Ex.P14, the injured-PW6 was discharged on

6.1.2007. Hence, it cannot be said that the

prosecution has established its case against the

accused that he assaulted PW1 and 6 with an

intention to commit their murder or that PW-6

sustained grievous injuries.

21. From the evidence and material on

record, the prosecution has been able to establish

that the accused came to the spot and intimidated

PW-1 and PW-6 and caused injuries to PW1 and

PW6 with a dangerous weapon(sickle) and

therefore, there is no hesitation to hold that the

accused has committed the offences punishable

under Sections 324, 504 and 506 of IPC.

22. The incident has taken place in the year

2007. 13 years have already passed. Learned

counsel appearing for the appellant/accused

submits that subsequent to the incident, there is

no untoward incident which has taken place

between the accused and the complainant or her

husband. The accused was arrested on the same

day i.e. on the date of incident and it is submitted

that he was in judicial custody for about 22 days.

There are no previous bad antecedents against the

accused and there are no allegations of misusing

the liberty granted to him, while he was on bail.

In the said facts and circumstances, period

already undergone by the accused may be

sufficient sentence, with increased fine amount.

Hence, the following:

ORDER

a) The appeal is allowed in part.

b) The judgment and order of conviction and

sentence passed in SC No.53/2007 on the

file of the learned Sessions Judge, Fast

Track Court-II, Karwar, Uttara Kannada,

dated 31.3.2011, insofar as convicting and

sentencing the appellant/accused for

offence punishable under Section 307 of

IPC is hereby set-aside.