Karnataka High Court
State Of Karnataka, vs Shambu Dargu Haslar, on 21 October, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21 s t DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
AND
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
Crl.A.No.100046/2017
BETWEEN:
State of Karnataka,
Represented by the
Police Sub-Inspector,
Murudeshwar Police Station,
Through the Addl. State
Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench.
... APPELLANT
(By Sri. V.M. Banakar, Additional SPP)
AND:
Shambu Dargu Haslar,
Age: 32 years, Occ: Collie,
R/o. Markhendeshwar, Bailoor Village,
Murdeshwar.
... RESPONDENT
(By Sri. Suresh S. Bhat, Advocate)
Crl.A No.100046/2017
:2:
This Criminal Appeal is filed under Section
378(1) & (3) of Cr.P.C. praying to grant leave to
appeal against the judgment and order of acquittal
dated 21.07.2016 passed by the Principal District
and Sessions Judge, Uttara Kannada, Karwar in
S.C.No.38/2012 and to set aside the judgment and
order of acquittal dated 21.07.2016 passed by the
Principal District and Sessions Judge, Uttara
Kannada, Karwar in S.C.No.38/2012 and convict
the respondent and accused for the offences
punishable under Sections 447, 323, 324, 504, 506
and 307 of IPC.
This Appeal coming on for Final Hearing, this
day, N.K.Sudhindrarao, J., delivered the following:
JUDGMENT
This appeal is directed against the judgment and order of acquittal passed by the learned Principal District and Sessions Judge, Uttara Kannada, Karwar in S.C.No.38/2012 dated 21.07.2016, wherein accused was found not guilty for the offences punishable under Sections 447, 323, 324, 504, 506 and 307 of IPC and was acquitted. Being aggrieved by the said Crl.A No.100046/2017 :3: judgment of acquittal, the State has come in appeal.
2. In order to avoid confusion and overlapping, parties are addressed in accordance with their ranks held by them before the trial Court.
3. The substance of the complaint and the case of prosecution is that the accused and the complainant are residents of Markhendeshwar, Bailoor Village of Bhatkala Taluk. They are residing in adjacent houses. The younger brother of accused, Nagappa was suffering from leprosy and the accused suspected that parents of the complainant and one Durgu Kanya Haslar had done black magic on Nagappa and because of that Nagappa was Crl.A No.100046/2017 :4: suffering from leprosy. On that suspicion, they used to quarrel very often.
4. On 02.04.2011 at about 19:30 hrs accused trespassed into the Courtyard of the house of parents of the complainant and abused her parents and Durgu Haslar in filthy language, by accusing them as the cause for his brother's illness. When Durgu Haslar questioned him, he abused using filthy language and attempted on his life assaulting on the head and stomach with Axe and caused grievous hurt. When the parents of the complainant went to rescue Durgu, accused assaulted them also on their head by means of Axe and caused hurt. The injured were taken to the hospital, examined and treated at RNS Hospital, Murudeshwar. Police recorded the statements of the injured in the hospital. Crl.A No.100046/2017 :5:
5. The learned trial Judge after hearing the case found that there are grounds to frame charges for the offence punishable under Sections 447, 323, 324, 504, 506 and 307 of IPC
6. The accused was charge-sheeted for the offences punishable under Sections 447, 323, 324, 504, 506 and 307 of IPC.
7. In order to establish the charges leveled against the accused person following are the witnesses, documents and material objects examined on behalf of the prosecution.
PW.1-Smt. Renuka Nagaraj Haslar, PW.2- Keshav Ganesh Balse, PW.3-Shivu Sannakusa Haslar, PW.4-Devi Shivu Haslar, PW.5- Rajashekar Chennabasappa Angadi, PW.6-A Yoganand, PW.7-Namdev Kurle, PW.8-Suresh Somayya Haslar, PW.9-Masti Kanya Haslar, Crl.A No.100046/2017 :6: PW.10-Sundaresh Kallappa Holennavar, PW.11- Laxman Lagamappa Pujari.
Ex.P1-Complaint, Ex.P1(a)-Signature of PW.1, Ex.P2-Spot Panchanama, Ex.P2(a)- Signature of PW1, Ex.P2(b)-Signature of PW2, Ex.P2(c)-Signature of PW10, Ex.P3- Rough sketch, Ex.P3(a)-Signature of PW1, Ex.P3(b) - Signature of PW2, Ex.P3(c)-Signature of PW10, Ex.P4-wound certificate of shivu, Ex.P4(a)- Signature of PW5, Ex.P5-wound certificate of Devi, Ex.P5(a)-Signature of PW5, Ex.P6-wound certificate of Durgu, Ex.P6(a)-Signature of PW5, Ex.P7-Sketch, Ex.P7(a)-Signature of PW6, Ex.P8- Report of PW7, Ex.P8(a)-signature of PW7, Ex.P9-Statement of PW8, Ex.P10-Statement of PW9, Ex.P12 to 18 -photos, Ex.P19-Record of right, Ex.P20-Certificate issued by Gram Panchayat, Ex.P21-House tax assessment Crl.A No.100046/2017 :7: abstract, Ex.P22-FSL report, Ex.P23-Serology report.
M.O.1-Blood stained mud, M.O.2-Mud, M.O.3-Pieces of glass bangles, M.O.4-Axe, M.O.5-While colour shirt, M.O.6 -Pink colour blouse, M.O.7-Square designed lungi.
On the basis of the oral and documentary evidence learned trial Judge acquitted the accused. Against which state has preferred this appeal.
8. Learned Additional SPP would submit that the presence of the accused on the date of offence has been established by the prosecution beyond reasonable doubt. The weapon used by the accused was established and the injury sustained by PWs-3 and 4 and one Durgu Haslar has also been established. When the substance of the case is established, learned trial Judge Crl.A No.100046/2017 :8: erred in acquitting the accused. There is no full appreciation of evidence in assessing the case of the prosecution.
9. Learned counsel Sri. Suresh S. Bhat for accused would submit that the previous enmity has landed in a false complaint against the accused. It is only a mark of vengeance. The evidence of the injured witnesses or the complainant is full of exaggeration. Prosecution has filed to establish the guilt of the accused beyond reasonable doubt.
10. The case hovers around the direct witnesses. The place of offence is Bailoor, time of offence is 7:30 p.m. on 02.04.2011, at the house of the complainant, Murudeshwara, Bailoor. Among the witnesses examined on behalf of the accused PW-1 is the complainant, Crl.A No.100046/2017 :9: PWs-3 and 4 are the injured persons and also parents of PW-1.
11. The complainant is none other than but the daughter of PWs-3 and 4. She in her evidence tells about that her residence is at Brahmavar and her husband is working in a Bakery. Four years back she had gone to her parents house and there used to be quarrel, as the accused person used to come to her parents house and abuse her parents attributing them that their black magic on the brother of the accused is the root-cause which made him to suffer from leprosy.
12. On a particular day at about 19:30 hrs when all the family members are present, accused entered the house and used filthy and outrageous language against her mother and Crl.A No.100046/2017 : 10 : when Durgu Haslar went to question him, the accused asked his sister to get the axe and when her father went to save him, he hit the head with the same axe and also the mother of the complainant. When the complainant also went to rescue, he threw the axe and left the place. Thereafter, the injured were taken to RNS Hospital and on the same day complaint is lodged.
She has been cross examined on the incident, photographs of the house, location and she denies the suggestion made against her version.
13. PW-2-Keshav Ganesh Balse is a witness for spot mahazar.
14. PW-5-Dr. Rajshekar Chennabasappa Angadi is the person who examined the injured Crl.A No.100046/2017 : 11 : and issued wound certificate as per Exs.P4, 5 and 6 relating to parents of the complainant and one Durgu Haslar.
15. PW-6-Yogandanda examined for having inspected and prepared the sketch of the place of the offence as per Ex.P7.
16. PW-7-Namadev Kurle, retired Head Constable who was deployed to address the case.
17. PW-8-Suresh Somayya Haslar is an eye witness who turned hostile. He is stated to be the eye witness who has seen the incident.
18. PW-9-Masti Kanya Haslar is another eye witness who has turned hostile.
19. PW-10-Sundaresh Kallappa Holennavar
- Sub Inspector, who has conducted investigation. PW-11, Laxman Lagamappa Crl.A No.100046/2017 : 12 : Pujari, PSI completed the investigation and submitted the report.
20. The case of the prosecution is that the persons who are injured are three in number. Incidentally, the brother of the complainant is also stated to have been injured in the evidence of the complainant, but the prosecution claim that only three persons are injured, namely, parents of PW-1 and another one Durgu Haslar.
PW-3 is Shivu Sannakusa Haslar his introduction is already given, he is the father of PW-1. He deposes that during the year 2011, April, his daughter came home, on that day accused at about 7:30 p.m. was abusing this witness and family members, entered the house and hit on the stomach and on the chest of Durgu and this witness with the axe which was marked as M.O.4. This witness suffered injuries Crl.A No.100046/2017 : 13 : with the same weapon. Accused hit the wife of this witness and she also sustained injury. Then accused abandoned the axe and went away. PW- 3 has been cross examined by the learned counsel on the attack, injury, blood stained clothes. He denies the suggestions made against the version spoken by him.
21. Devi w/o Shivu Haslar is PW-4. She is the wife of PW-3. She tells in her examination- in-chief recorded on 22.06.2015 that brother of accused was leper. In this connection, accused was scolding and abusing the family members of the complainant. Four years back one day at about 7:30 p.m. at Bailoor in the house, accused hit Durgu with axe on stomach and chest. Accused also hit her husband, when she went to rescue, she was also hit with axe on her head. The daughter of this witness rescued her. Crl.A No.100046/2017 : 14 : Thereafter, all the injured were taken to hospital. She has also been cross examined.
22. Dr. Rajashekar-PW-5 is examined on 23.06.2015. This witness examined the injured Shivu Sannakusa Haslar on 03.04.2011 at about 12:10 a.m. He had injury on head, cut injury measuring by ½ inch and bleeding present. He also examined one Devi Shivu Haslar, she also had bleeding injury on her head, measuring ½ inch x ½ inch and another injury on the rear side of the head, measuring 5cm x 5cm, similar injury of bleeding.
Durgu Haslar, also sustained injuries on the lower stomach measuring 1' x 7'. He has issued the wound certificates as per Exs.P4, 5 and 6 and his signature are at Exs.P4a, 5a and 6a respectively. The injuries sustained by Shivu Sannakusa Hasla under Ex.P.4 is stated to be Crl.A No.100046/2017 : 15 : simple. The injuries sustained by Devi Shivu Haslar is stated to be simple. The injuries sustained by Durgu Haslar is stated to be simple and grievous.
23. The accused is charge-sheeted with the offences punishable under Sections 447, 323, 324, 504, 506 and 307 of IPC. The injured persons are three in numbers. Out of them Durgu is stated to be dead and was not examined. In this connection, considering the hostility of PWs.8 and 9 the learned trial Judge has acquitted the accused by observing that prosecution has not proved the offence beyond reasonable doubt.
24. Basic principle which the learned trial Judge has forgotten is, the nature of the case, and the nature of the offence. According to him, after the incident complainant arranged the Crl.A No.100046/2017 : 16 : vehicle and took the injured to RNS Hospital on the same night and she finds the discrepancy in the complaint being written at the hospital. Thus, the learned Judge focuses on discrepancies in the evidence of the complainant, failed to assess the evidence as available of PWs-3 and 4 who are the injured persons, sustained injury on rear side of the head. Regard being had to the fact that another person Durgu Haslar sustained injuries was not examined. By virtue of the same, injured persons always are the best witnesses as they are both victims and eye witnesses of the incident which becomes phase changer under the relevant section.
No doubt exaggerations and discrepancies will be there. However, in the present case there are no serious exaggerations projecting a false case into a right one. Insofar as previous enmity Crl.A No.100046/2017 : 17 : is concerned, it is stated that the accused was angry against the complainant because, the brother of the accused was a leper and that disease was caused due to black magic done by the injured persons -PW3 and 4. Previous enmity in a criminal case is like double edged weapon. It may be cause for filing a false complaint or it may also be the cause for attacking a person.
25. In the circumstances of the case, we do not find unreliability, un-naturality and falsehood in the evidence of PWs1, 3 and 4. It is also supported by the evidence of Doctor who has examined the injured and also noted the presence of the injury on them and issued wound certificate at Exs.P4, 5 and 6 under his signature. Witness of the Engineer is regarding the place of offence, spot mahazar is post incident formality. Evidence of Investigating Crl.A No.100046/2017 : 18 : Officer tells about the formalities conducted by him including recording of statement. In the whole may not be the evidence as to the commission of offence under Section 307 of IPC, which is as under:
"307. Attempt to murder. -Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to f ine; and if hurt is caused to any person by such act, the off ender shall be liable either to imprisonment f or lif e, or to such punishment as is hereinbefore mentioned.
26. The act committed by the accused must have caused such kind of injury, if the injured had died, accused would have been guilty of murder. It is also the evidence of the prosecution that accused left the axe on the spot Crl.A No.100046/2017 : 19 : and ran away. He is a neighbor of the injured. The ingredients of Section 307 are totally absent in this case. Insofar as hurt is concerned, it is defined under Section 320 of IPC. Even PWs-3 and 4 stated to have been hospitalized however, there is no mention of medical records. It is also necessary to place on record Sections 504 and 506 of IPC which are as under:
"504. Intentional insult with intent to provoke breach of the peace. - Whoever intentionally insults and thereby gives provocation to any person, intending or knowing it to e likely that such provocation will cause him to break the public peace, or to commit any other off ence, shall be punished with imprisonment of either description f or a term which may extend to two years, or with f ine, or with both.
506. Punishment f or criminal intimidation. -Whoever commits the off ence of criminal intimid ation shall be punished with imprisonment of either description f or a term which may extend to two years, or with f ine, or with both.Crl.A No.100046/2017 : 20 :
If threat be to cause death or grievous hurt, etc. -And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by f ire, or to cause an off ence punishable with death or imprisonment for lif e, or with imprisonment f or a term which may extend to seven years, or to impute unchastily to a woman, shall be punished with imprisonment of either description f or a term which may extend to seven years, or with f ine, or with both."
27. It is very un-understandable that in the line of threat to life, Sections 504, and 506 of IPC come in a row. Always major offence is invoked and the last grave offence on the threat of life is under Section 307 of IPC. It is surprising to us as to how the Investigating Officer invoked Section 504 and 506 and 307 of IPC for the same offence, it is nothing but non- application of mind.
Crl.A No.100046/2017: 21 :
28. Insofar as the evidence available on hand is concerned, the cream or the substance of the evidence of PWs-1 to 4, Doctor, Investigating Officer, is that the presence of the accused and complainant are established, inflicting of injury is established. In this connection, we find that ingredients of Section 324 of IPC are fittingly established beyond reasonable doubt. Learned trial Judge totally failed to notice the principles of criminal jurisprudence to hold the accused guilty for the offence punishable under Section 324 of IPC. However, we find that there is no evidence for the other offences charged. We find the judgment suffers from irregularity, lapse and lack of proper appreciation of evidence. It is liable to be set aside. The prosecution has not established the commission of offence under Sections 447, 323, 504, 506 and 307 of IPC Crl.A No.100046/2017 : 22 : beyond reasonable doubt by the accused. However, accused is liable to be punished for the offence punishable under section 324 of IPC.
29. The observation of the trial Judge that another person was also present at the time of commission of offence along with the accused, is noticed and the sole accused being charge- sheeted is also considered.
30. Accordingly, we proceed to pass the following:
ORDER Appeal is partly allowed. Judgment passed by the learned trial Judge in S.C.No.38/2012 dated 21.07.2016 is set aside.
Acquittal of the accused for the offence punishable under Sections 447, 323, 504, 506 and 307 of IPC is confirmed. Acquittal for the Crl.A No.100046/2017 : 23 : offence punishable under Section 324 of IPC is set aside. Accused is found guilty for having committed offence under Section 324 of IPC.
Learned counsel for the accused would submit that lenient view may be exercised.
On going through the file, we find that the accused was in judicial custody for about 2 months and 22 days. In the whole set of circumstances of the case, we find it just and proper to sentence the accused for imprisonment for a period of 2 months 22 days, which is the number of days he was in judicial custody as under trial prisoner.
We further sentence him to pay fine of Rs.20,000/-. In default to undergo simple imprisonment for a period of 2 months.Crl.A No.100046/2017 : 24 :
The accused is entitled for set off under Section 428 of Cr.P.C. of the period of custody with the sentence.
Sd/-
JUDGE Sd/-
JUDGE BVK