Karnataka High Court
Ganapati Narayan Komar vs State Of Karnataka on 11 July, 2019
Equivalent citations: AIRONLINE 2019 KAR 1649
Author: A.S Ju Stice Bellunke
Bench: A.S Ju Stice Bellunke
1
IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JU STICE BELLUNKE A.S.
CRL.A.NO.2927/2011
BETWEEN :
1. GANAPATI NARAYA NA KOMAR,
AGE : 39 YEARS, OCC: AGRICULT URE,
R/O TARAGAR, POST VAJRALLI ,
TQ: YELLAPUR, DI ST: UTTARA KANN ADA.
2. SMT.GEETA W/O GANAPATI KOMAR
AGE : 33 YEARS, OCC: HOUSEHOLD ,
R/O TARAGAR, POST VAJRALLI ,
TQ: YELLAPUR, DI ST: UTTARA KANN ADA.
... A PPELLANTS
(BY SRI GANA PATI M. BHAT, ADVOCA TE)
AND :
1. THE STATE OF KARNATAKA
REPRES ENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT BUILDING, D HARWAD.
2. RAGHAVENDRA
S/O GANA PATI GA ONKAR,
AGE : 32 YEARS, OCC: AGRICULT URIST,
R/O TARAGAR, POST: VAJRALLI ,
TQ: YELLAPUR, DI ST UTTARA KANNA DA.
... RES POND ENTS
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP F OR R.1)
(BY SRI M.B.GUND AWADE, ADV OCAT E FOR R.2)
2
THIS CRIMINAL APPEAL IS F ILED UNDER
SECTION 372 OF THE CRIMINAL PROCEDURE COD E
PRAYING TO SET ASIDE THE ORDER OF THE HON'BLE
FAST TRACK COURT , SIRSI AT SIRSI, IN
SC.NO.49/ 2011 D ATED 23.11.2011, IN THE INTERES T
OF J USTICE AND EQUTY.
RESERVED FOR JUDGMENT ON : 28.06.2019
JUDGMENT PRON OUNCED ON : 11.07.2019
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT , COMING ON F OR
PRON OUNCEMENT OF J UDGMENT, THIS DAY, THE
COURT DELIV ERED THE F OLLOWING :
JUDGMENT
This appeal has been filed by the victim the complainant questioning the judgment and order of acquittal dated 23.11.2011 passed by the learned presiding Officer, Fast Track Court, Sirsi in S.C.No.49/2011, wherein the accused came to be acquitted for the offences punishable under Sections 504 and 307 of the Indian Penal Code (for short "IPC").
2. Brief facts for the purpose of this appeal is that, according to the prosecution there was a dispute with regard to the pathway which the accused had asked the victim, the husband of the 3 complainant namely Ganapati Narayan Komar. The injured had refused to give any space in his land. Therefore in that ill-will or enmity, this incident is alleged to have been taken place. According to the complainant on 15.01.2011 at about 8.15 a.m., when the injured Ganapati was proceeding to his garden land on a footpath, the accused came there and abused him in filthy language and assaulted him with kuthari (spade - agricultural instrument) on his head and caused grievous injuries to him with an intention to kill him. After the assault, the witnesses on hearing the hue and cry came there and the injured was shifted to hospital. He was said to be inpatient for many days. In the meanwhile wife of the injured namely PW.1 filed a complaint before the jurisdictional police as per Ex.P.1. A crime was registered. Investigation was conducted. After collecting evidence, the Investigating Officer found that accused has committed offences punishable under Sections 504 4 and 307 of IPC. Hence, charge sheet came to be filed before the jurisdictional Magistrate. The learned Magistrate took the cognizance of the aforesaid offences and the case came to be committed to the Sessions Court for trial as the offence under Section 307 of IPC was triable only by Sessions Judge.
3. After committal, the learned Sessions Judge secured the presence of the accused. On hearing, charge was framed against the accused for the aforesaid offences. Accused pleaded not guilty, therefore trial was conducted.
4. Based on the evidence available on record, learned Sessions Judge found that the prosecution has not proved the guilt of the accused beyond any reasonable doubt. Therefore, impugned order of acquittal came to be passed. The said judgment and order of acquittal has been challenged by the 5 original complainant and her injured husband on the following grounds.
5. The incident occurred when the husband of the complainant -appellant No.1 herein refused to give space to the accused to use it as a road. Therefore, there was a confrontation between the appellants and accused - 2nd respondent. Therefore there was motive for the accused to assault appellant No.1 injured. There are minor discrepancies and contradictions in the evidence of the prosecution, which should not have been made a ground to disbelieve the evidence of prosecution. The assault with dangerous weapon on the head of the injured and he sustaining bleeding injury is corroborated by the evidence of PW.8 and also eyewitness, who had seen the incident. The non identification of the material objects or some minor discrepancies could not be a ground to disbelieve the evidence of doctor. The 6 Trial Court has not properly appreciated the medical evidence on record and also direct evidence available on record particularly when PWs.3, 4 and 6 have fully supported the case of prosecution. Therefore, the appellants have pray to allow this appeal and set aside the impugned order of acquittal, accordingly they have prayed to convict the accused.
6. Learned counsel appearing for the appellants submitted that, PW.2 is the injured witnesses. PW.1 is the wife of the injured. She had gone to the spot immediately on hearing the galata. She had seen the accused assaulting her husband. The accused was not arrested for nearly three months. He had taken anticipatory bail. The medical evidence on record proves that PW.2 had sustained grievous bleeding injuries. There was a fracture of temporal bone and frontal bone. Material object was capable of causing such injury. 7 Merely because injured stated that he has not suffered any injury on the forehead would not have been a ground to acquit the accused. As he has clearly stated that, it is the accused who has assaulted him from his behind and caused injury to the left side of the head which correspondence to the injury as stated by the doctor. He was inpatient for nearly 32 days in the hospital. The name of injury and the weapon used for causing the said injury would prove the intention of the accused was to cause death of the husband of the complainant. Therefore, ingredients of section 307 of IPC were proved. The accused had also abused the injured in filthy language. Therefore, the ingredients of section 504 of IPC were proved beyond any reasonable doubt. Hence he prayed to allow the appeal.
7. Learned counsel for the respondents accused submitted that PW.3 is not an eyewitness. 8 He came to the spot after the incident. PWs.4 and 5 are the witnesses to the seizure panchanama and spot panchanama they have not supported the case of the prosecution. The medical evidence on record does not corroborate the injuries suffered by the injured. Injures told by the doctor is said to have been suffered by the injured himself. Pathway dispute ended in the year 1984 itself by decreeing the suit. Therefore, there was no reason or motive for the accused to assault the appellant No.1. Even the wife of appellant No.1 is not an eyewitness. The injured had fallen down from the coconut tree on a stone and thereby he sustained injuries that has been made use to implicate the accused falsely.
8. PW.2 speaks about only one blow on his head and nothing more than that. The doctor - PW.8 has deposed that there was no injury on the shoulders of the injured. Whereas, the injured - 9 PW.2 has stated that he was also assaulted on the shoulder and arm. In addition to that no X-ray or CT Scan reports have been produced by the prosecution to prove that the injuries suffered by the PW.2 was grievous in nature. No documents of any hospital for having taken treatment as inpatient are produced by the prosecution. The material objects produced before the doctor and one before the Court are not tallying each other and they are two different objects. If the attack was from behind the injured, there should have been injury on the backside of the head. In the spot mahazar, it is admitted that there are four coconut trees near the scene of offence. There is also a katta near the trees and stones are also there. The blood stains were also found on the stone. Therefore the injuries suffered by the injured were on account of falling down on the stone and not by assault. Neither PW.1 nor PW.3 are the eyewitness. They are all closely related to 10 each other. PW.2 - injured has not seen the accused coming behind. Therefore, the learned counsel submitted that the prosecution has miserably failed to prove the guilt of the accused beyond any reasonable doubt and he prayed to dismiss the appeal.
9. Learned counsel for the appellants replied that the injuries are grievous in nature. The PW.2 was unconscious and he was shifted to hospital by neighbors in an Ambulance. Spade is dangerous weapon. Assault was on vital part of the body i.e., head. Therefore, he relying on certain authorities and submitted that to allow the appeal.
10. On the basis of the aforesaid arguments and material on record, the following points would arise for consideration of this Court:
"Point No.1: Whether the Appellants proved before the trial Court beyond any reasonable doubt that 11 accused had assaulted PW.2 with an intention to cause his death by dangerous weapon and abused him in filthy language and thereby he had committed offences punishable under Sections 307 and 504 of IPC?
Point No.2: Whether the appellants prove that the judgment and order of acquittal passed by the trial court is perverse, capricious and against to the facts and evidence on record, therefore, it is liable to be set aside and accused is liable to be convicted?
Point No.3: What order?
11. Findings of this Court on the above
points are as under:
Point No.1: In the negative.
Point No.2: In the negative.
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12. It is the bounded duty of the
prosecution to prove the guilt of the accused as made out in the charge sheet. So far as ingredients of Sections 307 and 504 of IPC are concerned, they are well established. The assault must have been with an intention to cause death and if by that act the injured is dead, the accused should be guilt of offence of murder. In such case the offence under section 307 can be said to have been made out. It is also well established principle of law that section 307 of IPC does not contemplate causing of any injury. If the injuries are caused then second part of section 307 of IPC would be attracted. The first part of the said section requires only intention or knowledge on the part of the accused to cause death of injured. Therefore the law laid down with regard principle of law is appreciated to understand the ingredients of sections 307 and 504 of IPC.13
13. In criminal case before applying any citation, the facts and circumstances of the case in hand and the facts and circumstances of the case in the citation should be similar, if not identical. How evidence of an injured witness is to be appreciated is also well settled by Hon'ble Apex Court. First of all, it has to be seen whether the evidence on record relied by the prosecution would prove the incident in question.
14. The trial Judge has assigned the following reasons for disbelieving the case of prosecution:
"11. Coming to the evidence of PW.1 before the Court, of course she has reiterated the complaint averments in her chief-examination. Further, stated that, on hearing the quarrel sound C.W.9- Narasimha and C.W.10-Seetaram came to the spot. Said C.W.9-Narasimha is not examined by the prosecution. After the incident said Ganapati was taken to 14 hospital, where the police had come and the complaint was given in the hospital. In the cross-examination, this P.W.1 has stated that, C.Ws.9 and 10 are the close relatives of her husband. Further she has admitted that, in their garden there is a public way measuring 3 feets in which and 93 feets is length. Further also admitted that, the accused has taken a court decree regarding said road and he is using the same since from 1984.
12. Here itself I feel it appropriate to refer to the documents produced by the accused. One compromise decree in O.S.No.42/1984 on the file of Munsiff Court at Yellapur indicates that, one Dattatreya Annappa Gaonkar (Probably the relative of accused) had filed a suit against four persons including one Narayan Timmanna Komar (Probably father of P.W.2-Ganapati) and said suit came to be compromised. As per said decree, said four defendants have given space measuring three feets in width and 93 feets in length in Sy.No.27/2 of Targar village to plaintiff for the purpose of road and in turn said 15 plaintiff has given the space with same measurements in other survey number. Thereafter, the present accused and his father had filed O.S.No.20/2011 on the file of Senior civil Judge, Yellapur, against 10 defendants, including present P.Ws.1 and 2 for the reliefs of declaration and injunction in respect of pathway and canal in Sy.No.27/1(a) and 27(3(b). Of course the pleadings and description of suit property are too clumsy. Said suit was resisted by filing written statement. In that suit, the plaintiffs therein have obtained an exparte temporary injunction. From these documents, it is evident that the family of accused has exchanged space measuring 3 feets in width and 93 feets in length for the purpose of path way in 1984 itself. Even thereafter, the dispute regarding pathway appears to be subsisting. Therefore, the story of complainant that, the accused has asked for space for pathway cannot be accepted.
13. P.W.2 is the alleged injured in this case. His version in chief is that, the accused has assaulted him from backside 16 with kuthari on head and caused blood injury. Thereafter, the accused has assaulted twice on the left shoulder with the handle of kuthari. This version does not tally with the version of P.W.1. Because according to P.W.1, the accused has assaulted once on the head by kuthari and after falling down of P.W.2, he again assaulted twice with the same kuthari on the head. Therefore, I do not find corroborative evidence from the mouth of highly interested witnesses. In the cross examination of P.W.2 has clearly stated that, due to assault on the shoulder with handle of kuthari, there was a blood injury and there was no injury on the forehead. At this stage itself, I would like to refer to the medical evidence.
14. PW.8 is the Doctor who has treated P.W.2. According to this witness, there was a lacerated wound on the left frontal region measuring 12 x 4 cm, which was bone deep. Another abrasion with swelling on left side of forehead measuring 8 x 4 cm. the injured himself has not stated about any injury to the forehead. To 17 that extent the medical evidence and the evidence of injured do not corroborated with each other.
15. Coming back to the further cross-examination of P.W.2, he states that, there were stones at the space where he was fallen. This is also admitted by P.W.1. P.W.3 is another cousin brother of P.W.2. According to him, he went to the spot on hearing the quarrel sound and noticed that P.W.2 was fallen on the ground and blood was oozing from his head. Further he states that, the accused has assaulted P.W.2 since he refused to give space in his land for road. Even this witness, in his cross-examination, has admitted that, the head of P.W.2 was on the stone and the blood was fallen on said stones and no blood was fallen on the ground. But according to prosecution case, the spot panchanama as per Ex.P.2 was drawn, wherein it is clearly mentioned that, there were three stones together and on them the blood was fallen and dried up.
According to defence theory this P.W.2, while getting down from the side by 18 arecanut tree, has slipped and fell down on the stones and sustained the injury. That story gets support from the available evidence. Anyway, P.Ws.1 to 3 are highly interested witnesses and I can find marked contradictions in their evidence, which creates serious doubt about the prosecution case.
16. P.W.4 in his cross examination has admitted that, there was a katte (platform by the side of footpath. In that katte there were four arecanut trees. He has also admitted that, during January and February, the arecanut harvesting takes place. Unfortunately, in Ex.P.3 said platform and the arecanut trees in the platform are not shown. Therefore, Ex.P.3 is not disclosing the true state of affairs. This P.W.4 has also admitted that, there were three stones and the blood was sprinkled on them. This admission lends supports to the defence theory.
15. It is stated by the leaned Sessions Judge that Ex.P.6 the voluntary statement is not 19 in consonance with section 27 of the Evidence Act as it contains many incriminating statements as per the panchanama. Weapon (spade) was measuring 8½" x 8½" but the weapon one produced before the Court marked as MO.4, measures 8" in width 4.6" in length. The doctor P.W.8 has also stated that MO.4 before the Court is entirely different from the one which was shown to him by the police at the time of obtaining opinion as per Ex.P.8.
16. The trial Court also considered the evidence of PW.8 - doctor that the possibility of causing injury as shown in the Ex.P.7 is quite less injures with MO.4. Therefore finding that the medical evidence on record does not tally with the evidence of PW.2 injured witness and non- confirmation of MO.4 having been seen by the doctor. A reasonable doubt arose in the minds of the court and therefore it resulted in acquittal. On 20 re-appreciation of the evidence on record I find that the case of prosecution is not free from reasonable doubt.
17. It is the specific case of the prosecution that the accused assaulted the victim from his behind. Therefore, blow should have fallen on occipital region of the head. Whereas, the doctor opined that the injury was on the left frontal side and also on the forehead measuring to some extent. The PW.2 - injured himself has admitted that there no injury was caused his forehead. It is also important to note that the complainant - PW.1 has stated that she had kept the head of her husband on a stone. Normally a wife would keep the head of her injured husband on her lap not on a stone. There is no explanation why the stone got bloodstains. Therefore, the defence theory has been accepted by the trial Court and I find that the same is based on the facts and circumstances 21 of the case and evidence on record. Therefore the trial court rightly relied on a decision reported in 2008 SAR (Criminal) 1 (Kapildeo Mandal & others Vs. State of Bihar). Further inpatient medical records of injured are not produced. The alleged CT Scan disclosing the fracture of the temporal bone, frontal bone and left portion of the head, left forehead where having lacerated bleeding injury measuring 12 x 4 cms and abrasion on the left forehead measuring 8 x 4 cms. In the wound certificate the patient is said to have been brought to the hospital with the history of assault by salike. Further the material object spade does not appear to have been sent to FSL examination. Only bloodstained mud, sample mud and blood stained shirt were sent for FSL examination stating that it contained blood stains. Of course delay in seizure of the spade might have been the reason but non-identification of the weapon by the doctor would sufficiently raise doubt in mind of the Court. 22 Therefore, on re-appreciation of the evidence on record and the reasons assigned by the trial court, I find that the prosecution had not proved the guilt of the accused beyond any reasonable doubt. If the assault had taken place as stated by the PW.1 and PW.2 then there should have been injury on the occipital region of injured. Further when a person comes behind and assaults the injured would not be in a position to see him. Even according to the PW.1 her husband was going to their land for watering, accused came his behind and assaulted him. Her husband fell down and raised hue and cry. Then she said to have rushed to the place of incident from her which is said to be 600 meters away from the place of incident. Therefore possibility of PW.1 seeing the assault on her husband is remote. But however her evidence would be relevant for having gone to the spot immediately after the incident as Res-Gestate. 23
18. The accused admittedly using the road which was decreed by Civil Court since 1984. Therefore, the question of accused assaulting PW.2 on the dispute of pathway or road cannot be believed. She was also admitted that there were three stones at the spot one of them was sharp edged. Since the stone was bloodstained therefore she has stated that she kept her husband's head on the stone which appears to be quite unnatural. Because normally an injured person will be taken on the lap but not on stone.
19. The learned counsel for the accused relied on the following authorities.
1. (2007) 4 Supreme Court Cases 415 (Chandrappa and others Vs. State of Karnataka.
2. 2018 SCC Online HP 78 (State of H.P. Vs. Chet Ram.) 24 To understand the position of law having regard to the facts and circumstances of the said rulings are appreciated.
20. When the testimony of the witness become unreliable and inconsist and the material object used for assault is not identified, then in such cases even the evidence of injured witness can be disbelieved. The powers of appellate courts are also well settled by the decision reported in 2018 SCC Online HP 78 (State of H.P. Vs. Chet Ram.) by referring the decision of Hon'ble Apex Court reported in (2007) 4 Supreme Court Cases 415 (Chandrappa and Others Vs. State of Karnataka. Which reads as under:
42. From the above decisions, in our considered view, the following general principles regarding powers of Appellate Court while dealing with an appeal against an order of acquittal emerge;25
(1) An Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of 26 the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the Trial Court.
27
21. Accordingly the points are answered in the negative. Hence I proceed to pass the following.
ORDER
1. The appeal filed by the appellants - complainant and injured is dismissed.
2. The judgment and order of conviction dated 23.11.2011 passed in S.C.No.49/2011 by the Presiding Officer, Fast Track Court, Sirsi is hereby confirmed.
3. Send back the records to the Trial Court to take further needful action in the matter.
Sd/-
JUDGE EM