Karnataka High Court
Manjunath @ Somashekhar S/O Mugappa ... vs The State Karnataka, on 12 October, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.A. NO.2820 OF 2011
BETWEEN:
MANJUNATH @ SOMASHEKHAR
S/O MUGAPPA SADAR,
AGED ABOUT 19 YEARS,
R/O MARADI VILLAGE,
DHARWAD TALUK & DISTRICT.
...APPELLANT
(BY SRI. NEELENDRA D GUNDE, (AMICUS CURIE) ADV.)
AND:
THE STATE OF KARNATAKA
DHARWAD RURAL POLICE STATION,
THROUGH SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. SEEKING TO SET-ASIDE JUDGMENT AND ORDER
OF CONVICTION DATED 6.9.2011 PASSED BY PRINCIPAL
DISTRICT AND SESSIONS JUDGE, DHARWAD IN SC
NO.173/2010 WHEREBY SENTENCING THE APPELLANT TO
UNDERGO RI FOR A PERIOD OF THREE YEARS AND TO
PAY FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF
FINE, TO UNDERGO SI FOR SIX MONTHS FOR THE
OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC BY
ALLOWING THE PRESENT CRIMINAL APPEAL.
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THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is preferred by accused No.1 against the judgment and order of conviction and sentence passed in SC No.173/2010 on the file of the Principal District and Sessions Judge, Dharwad, wherein he is convicted for the offence punishable under Section 326 of IPC.
2. Heard the learned Amicus Curiae Sri. Neelendra D. Gunde for the appellant and the learned HCGP for the respondent-State and perused the evidence and material on record.
3. Brief facts:
The first informant-Sanjeev Gulappa Kusugal is the brother of the injured by name Satish Gulappa Kusugal. Their father Gulappa Kusugal and accused No.2 are own brothers. 3 Accused No.2 was given in adoption to Gulappa Sadar of Hebballi village. In the adopted family, he had owned about 9 acres of land and one house. But he sold the said house and came back to Maradagi village and started residing there. They had 11 acres of land, which is their ancestral property. Accused No.2 was claiming share in the said property. The father of PWs.1 and 2 filed a civil suit and the decree passed by the Civil Court was in his favour. In this back ground, accused No.2 and his family members were having enmity against the family of Gulappa Kusugal.
4. On 17/3/2010, at about 8.30 a.m., PW1, his brother PW2 and one Basappa(PW6) were cleaning the vacant space near the backyard of their house for the purpose of laying haystack. At that time, accused No.2 came there and 4 picked up a quarrel with the complainant and his brother stating that the open space belongs to him. Suddenly, accused No.1, son of accused No.2 assaulted PW2 with a sickle with an intention to kill him. Accused Nos.2 to 4 assaulted them with their hands. PW1, PW6 and PW7 pacified the quarrel. Injured PW2 was shifted to PHC, Hebballi. From there, he was taken to District Hospital, Dharwad. Thereafter, he was referred to KIMS, Hubli. On receiving the MLC intimation, PW13-P.S.I. of Dharwad Rural Police station went to the hospital and recorded the statement of PW1 as per Ex.P1 and registered a case against accused Nos.1 to 4 in crime No.78/2010 for the offences punishable under Sections 323, 307, 504, 506 r/w 34 of IPC. On completion of investigation, charge sheet was filed.
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5. Charges were framed against accused Nos.1 to 4 for the aforesaid offences. In order to establish its case, the prosecution in all examined PWs.1 to 15 and got marked Exs.P1 to P17 and MOs.1 to 4. The defence got examined DW1 and got marked Exs.D1 and D2.
6. The learned Sessions Judge by judgment dated 6/9/2011 was pleased to acquit accused Nos.2 to 4 of all the charges. Accused No.1 was convicted for the offence punishable under Section 326 of IPC and he was acquitted of other charged offences.
7. Assailing the impugned judgment and order of conviction and sentence passed by the trial Court, the learned Amicus Curiae has contended as under:-
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The incident has not taken place as alleged by the prosecution. At the time of incident, accused No.2 was in possession of the property. PWs.1, 2 and others have trespassed into his property and they were cleaning the place for construction of a house. He submits that accused No.2 was exercising his rights to defend the property which was being encroached upon by PW1 and others. Hence, even if the case of prosecution is accepted as true, then the act committed by accused No.1 will fall within the definition of Sections 96 and 97 of IPC and it does not amount to any offence.
8. The learned Amicus Curiae further contends that the witnesses who have supported the case of prosecution are interested witnesses. None of the independent witnesses have supported the case of prosecution. In view of 7 the dispute between the parties, the evidence of the interested witnesses cannot be relied upon. He contends that the presence of PW1 at the spot itself is doubtful. Except PW2, the other witnesses have not sustained any injuries, which shows that their presence at the scene of occurrence is doubtful. The Doctor has stated that the injuries sustained by PW2 would also be caused if a person falls on a hard object. Therefore, it cannot be said that the injuries are caused by the accused.
9. The learned Amicus Curiae has further contended that accused Nos.2 to 4 are acquitted of all the charges leveled against them. The learned Sessions Judge has observed that PW2 and others went to the spot for cleaning the disputed vacant place and therefore, PWs.1 to 3 themselves are the aggressors. He contends that 8 when the learned Sessions Judge has acquitted accused No.1 and other accused of all the charges leveled against them, conviction of accused No.1 under Section 326 of IPC is not warranted. Accordingly, he seeks to allow the appeal by setting aside the impugned judgment and order of conviction and sentence passed by the trial Court.
10. Per contra, the learned HCGP contends that PW2 is the injured. He has suffered grievous injury as per the wound certificate issued by PW8. The oral evidence of the prosecution witnesses is corroborated by medical evidence. The offence committed by the accused will not fall under any of the exceptions. The accused has assaulted PW2 with an axe without any provocation and caused grievous injuries to him. PWs.1 to 3 and 11 9 have supported the prosecution case. Their evidence is sufficient to hold the guilt of the accused. The learned HCGP further submits that there is no illegality committed by the learned Sessions Judge. Accordingly, seeks to dismiss the appeal.
11. In order to establish its case, the prosecution has examined in all 15 witnesses.
12. PW1 is the first informant. He has lodged the complaint as per Ex.P1. PW2 is the injured. PW3 is the mother of PWs.1 and 2. PW4 is the panch witness to Ex.P2-spot Mahazar and Ex.P10 in respect of seizure of weapon. PWs.5 and 10 are the panchas to the seizure of clothes of the injured under Ex.P3. PWs.6 and 7 are the independent eye-witnesses. PW8 is the Doctor who treated the injured and issued wound certificate-Ex.P6. PW9 is the Junior 10 Engineer who prepared the sketch-Ex.P9. PW11 is the sister of PWs.1 and 2. PW12 is the panch witness to the spot Mahazar-Ex.P2. PW13 is the PSI who recorded the statement of PW2 and registered the case. PW14 is the police constable who carried the articles to FSL. PW15 is the Doctor at KIMS, Hubli. CT scan films-Exs.P16 and 17 are marked through the said witness.
13. Out of the above mentioned prosecution witnesses, PWs.4 to 10 and 12 have been treated hostile by the prosecution. PW4 has stated that the police conducted a Mahazar in the backyard of the house of PWs.1 to 3 as per Ex.P2. Insofar as seizure of weapon-MO.4 at the instance of accused, he has turned hostile. PW12 is another panch witness to Ex.P2-spot 11 Mahazar and Ex.P10-seizure of weapon. However, he has turned hostile.
14. It is the case of prosecution that on the date of incident, PW1 along with PW2 and PW6 were cleaning the vacant place situated in the backyard of their house for the purpose of laying haystack. At that time, accused No.2 came and picked up a quarrel with PW1 and PW2 stating that the said open space belong to him. When he was quarrelling, accused No.2 came to the spot holding a sickle and assaulted PW2 with an intention to kill him.
15. PW1 in his evidence has reiterated the averments made in the complaint. He has stated that the incident has taken place on 17/3/2010 at about 8.30 a.m. in the backyard of their house. When they were cleaning the said place, accused No.2 picked up a quarrel with him and 12 accused No.1 came and tried to assault with a sickle on the neck of his brother, but the blow fell below his right eye. PWs.2, 3 and 11 have corroborated the evidence of PW1 with regard to accused No.1 causing injuries to PW2 with a sickle. In the complaint, PW1 has not stated that the accused while assaulting PW2, aimed at his neck. Even PWs.2, 3 and 11 have not stated that the accused tried to assault on the neck of PW2. PW1 has stated that the injured was shifted to Dharwad District Hospital and from there he was taken to KIMS, Hubli wherein, he took treatment for about 26 to 28 days. From there he was again shifted to SDM Hospital and admitted for 8 days for treatment. He has stated that when accused No.2 assaulted, the sickle got stuck on the face of his brother. 13
16. PW8 has stated that he was working as Senior Specialist in District Hospital Dharwad. On 17/3/2010 at about 10.45 a.m., one Satish Kusugal Maradagi (PW2) was brought by his mother with a history of assault by sickle at 8.00 a.m. at Maradagi. He has stated that there was bleeding from the nose and noticed contused wound on the left side of maxillary region measuring 5X4 cm. and similar injury on the right side of maxillary region measuring 3X4 cms. cum sutured wound 3 cms. at primary health centre. He gave first aid treatment to the patient and referred him to KIMS, Hubli for higher treatment. X-ray and CT scan were taken at KIMS, Hubli, and as per the X-ray report, chest was normal. There was CT head bilateral fracture of nasal bone and comminuted fracture of anterior wall of bilateral maxillary sinus and also lateral wall of right maxillary sinus with 14 overlying surgical emphysema. PW8 has stated that the injured was admitted in KIMS, Hubli on the same day and discharged on 9/4/2010.
17. PW15 has stated that X-ray of the chest and CT scan of the brain of the patient was taken and in the CT scan it was diagnosed that there was fracture of both nasal bones, comminuted fracture of anterior wall of bilateral maxillary sinuses and lateral wall of right maxillary sinus with overlying surgical emphysema. The CT scan films are marked as Exs.P16 and 17.
18. PW8 has stated that reference No.3 in the wound certificate might be caused with such weapon by blunt part of the weapon. His opinion with regard to the weapon is marked as Ex.P8. 15
19. PW2 in his evidence has stated that the quarrel took place near the house. They were cleaning the place for the purpose of constructing the house and along with him CW1(PW1), CW7(PW6) were also cleaning. At that time, his uncle (accused No.2) came and started quarreling saying that the land belongs to him. Immediately, accused No.1 came to the spot and assaulted him with a sickle on his right side of the cheek and near the right eye. Due to the assault, the sharp tip of sickle pierced the skin. He has stated that PWs.3 and 4 assaulted him with hands.
20. Perusal of the evidence of above witnesses clearly discloses that there was a quarrel which took place near the house of PW1 and in the said quarrel, accused No.1 assaulted with a sickle and caused injuries to PW2. 16 Though the charges were framed under Section 307 of IPC, the learned Sessions Judge after appreciating the oral and documentary evidence has convicted the appellant-accused No.1 for the offence punishable under Section 326 of IPC. In view of inconsistent and insufficient evidence against accused Nos.2 to 4, they were acquitted. On perusal of the medical evidence and nature of injures sustained, it is established that the injury sustained by PW2 is grievous in nature.
21. It is the contention of the learned Amicus Curiae for the appellant that accused No.2 was in possession of the property in question. On the date of incident, PWs1, 2 and 6 have trespassed into their property. Therefore, the act committed by the accused falls within the definition of Section 97 of IPC. He has contended that the accused was 17 exercising his right of private defence of the property. He submits that PWs.1, 2 and 6 are the aggressors who have gone near the property in respect of which a civil case was pending and therefore, it cannot be said that the accused- appellant has committed any offence as alleged by the prosecution. In support of his submission, he has relied on a decision of the Hon'ble Apex Court in the case of James Martin Vs. State of Kerala reported in 2004 SCC (Crl) 487.
22. In the aforesaid decision, Hon'ble Apex Court has observed that 'in a particular set of circumstances, whether a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the Court 18 must consider all the surrounding circumstances and it is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open for the Court to consider such a plea. In a given case, the Court can consider such plea even if the accused has not taken it, if the same is available to be considered from the material on record'. It is further observed that 'an accused taking a plea of right of private defence is not necessarily required to lead evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.'
23. In the instant case, according to the defence, accused No.1 and 2 were in possession of the property. On the date of incident, PW1, 2 19 and 6 trespassed into the property and they were cleaning the space for construction of the house. PW1 has stated that when accused No.2 came to the spot and started quarreling, he informed them that the Court order is in their favour and therefore they are cleaning the space for storing haystack. From his cross- examination, it can be seen that as on the date of incident there was a decree in favour of the complainant. He has stated that the accused have not handed over possession to them. It is not disputed by the defence that there was a court order in favour of PW1 in respect of the property. It is also not the case of the defence that on the date of the incident either PW1 or PW2 were armed with any weapon and they tried to assault the accused persons.
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24. When the right of private defence is pleaded, the defence must satisfy the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. From the material on record, it cannot be said that the witnesses have either trespassed into the property belonging to the accused or they were committing any mischief etc., which occasioned accused to assault and cause injury to PW2. The defence has failed to prove that they were in exclusive possession of the property at the time of incident. Therefore, it cannot be said that the act committed by accused No.1 would fall under the definition of Section 97 or Section 103 of IPC.
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25. The defence has got examined one doctor by name Sampath Singh as DW1, Medical officer in Primary Health Centre (PHC), Hebballi. A copy of the OPD register extract is marked as ExD2.
26. The contention of learned Amicus Curie is that there was a PHC at Hebballi, but there is no medical record in the said hospital to show that the injured took treatment in the said health centre, though it is the nearest dispensary to the house of the complainant. He would point out to the cross-examination of PW2 stating that the injured was initially taken to Hebballi hospital and therefore, he contends that the prosecution has suppressed the earlier information given before the doctor at Hebballi PHC and the nature of treatment given in the said PHC.
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27. DW1 has stated that he has not treated any patient with a history of assault. The first aid treatment was given by auxiliary nurse and then patient was referred to district hospital. Merely because no history was furnished, it cannot be said that PW2 has not sustained any injury or that the accused did not cause any injury to PW2. In the cross- examination, DW1 has stated that as per entries in Ex.D2, injury was mentioned as cut wound. After first aid treatment, injured was referred to District Hospital, Belagavi. Hence, evidence of DW1 will not come to the aid of defence.
28. Learned Amicus Curie placing reliance on a decision of the Hon'ble Supreme Court in the case of State of Karnataka Vs. Muddappa reported in 1999 SCC (Cri) 1046 submits that in view of the facts and circumstances, the 23 appellant-accused may be released under the provisions of Probation of Offenders Act, 1958. In the said case, Hon'ble Apex Court has held that there is no statutory bar for application of the Act to an offence under Section 304-II of IPC, where the maximum punishment is neither death nor imprisonment for life. But, in the present case, accused is convicted for an offence under Section 326 of IPC, which is also punishable with imprisonment for life. Therefore, in view of the nature of offence committed and the punishment prescribed, the accused is not entitled for the relief under the said Act.
29. The incident has taken place in the year 2010. The accused is stated to be just over 18 years old at the time of incident. The incident in question has taken place in a quarrel 24 which ensued between the complainant and accused No.2. The parties are closely related to each other. It is the submission of the learned Amicus Curie that all of them are living harmoniously and the appellant was in judicial custody for more than one month. He therefore submits that the sentence imposed by the trial Court may be reduced.
30. Learned Amicus Curie by placing reliance on a decision of this Court in the case of Narayanaswamy and others Vs. State by Srinivasapura Police reported in 2011 Crl.L.J. 239 submits that a lenient view may be taken. In the aforesaid decision, having regard to the interest of the accused, his age and antecedents, sentence of six months rigorous imprisonment was imposed along with a fine of Rs.10,000/-. Hence, considering the age and antecedents of 25 the accused and circumstances under which the offence was committed, I deem it proper to impose a sentence of six months rigorous imprisonment and fine of Rs.10,000/-, in default of payment of fine, to undergo further six months simple imprisonment for the offence under Section 326 of IPC.
In the result, I pass the following:
ORDER
a) Appeal is allowed in part.
b) Judgment of conviction passed by the learned Principal District and Sessions Judge, Dharwad in SC No.173/2010, dated 6.9.2011, convicting the accused for the offence punishable under Section 326 of IPC is hereby confirmed.
c) Sentence is modified and the
accused-appellant is sentenced to
undergo rigorous imprisonment for six months and he shall pay a fine of Rs.10,000/-, in default of 26 payment of fine, he shall further undergo simple imprisonment for six months.
d) The accused is entitled for set-off under Section 428 of Cr.P.C.
e) If fine amount is deposited, a sum of Rs.8,000/- is directed to be paid to the victim (PW2) as compensation under Section 357 of Cr.P.C.
Valuable assistance rendered by the Amicus Curie is placed on record. As an honorarium, he is entitled for a sum of Rs.10,000/- (Ten Thousand only).
Sd/-
JUDGE VMB/JTR