State Of Karnataka Vs. Mohan Chandrakanth Ghadi - Court Judgment

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE28H DAY OF MARCH, 2023 R PRESENT THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD AND THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA CRIMINAL APPEAL NO.100177/2020 BETWEEN STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INSPECTOR, HALIYAL POLICE STATION, DIST: UTTARA KANNADA, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. ...APPELLANT (BY SRI V.M.BANAKAR, ADDL. SPP) AND MOHAN CHANDRAKANTH GHADI, AGE:

27. YEARS, OCC: LABOUR WORK, R/O: KHAMADOLLI VILLAGE, TQ: HALIYAL, DIST: U.K. PIN CODE-581 329. …..RESPONDENT (BY SRI SHIVASAI M.PATIL, ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S. 378 (1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT

AND ORDER

OF ACQUITTAL DATED3108/2019 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, U.K. KARWAR SITTING AT SIRSI, ITINERARY AT YELLAPUR IN CRIMINAL APPEAL NO.184/2013 AND TO SET ASIDE THE JUDGMENT

AND ORDER

OF ACQUITTAL DATED3108/2019 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, U.K. KARWAR SITTING AT SIRSI, ITINERARY AT YELLAPUR, IN2Crl.A.No.100177/2020 CRIMINAL APPEAL NO.184/2013 AND TO CONFIRM THE JUDGMENT

AND ORDER

OF CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE AND JMFC, HALIYAL IN C.C.NO.176/2010 DATED1612/2013. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT

ON0703.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT

, THIS DAY, SHRI T.G.SHIVASHANKARE GOWDA, J, DELIVERED/PRONOUNCED THE FOLLOWING: JUDGMENT

The State has challenged the Judgment dated 31.08.2019 passed in Criminal Appeal No.184/2013 by the learned I Additional District and Sessions Judge, U.K. Karwar sitting at Sirsi itinerary at Yellapur (for short, ‘the appellate Court’) acquitting the accused No.1/respondent of the offences punishable under Sections 341, 324, 326 and 504 read with Section 34 of IPC.

2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.

3. The case pleaded by the prosecution is that, P.W.3- Yallari Omanna Ghadi is a resident of Khamadolli village of Haliyal Taluka. He has constructed a house in a land jointly owned by him and his brothers. The accused No.1 herein is the grandson of brother of P.W.3. On 18.03.2010 at about 3 Crl.A.No.100177/2020 8.30 a.m., the accused No.1 along with accused No.2- Ramchandra dug up a pit for construction of septic tank in the land in possession of P.W.3. He requested the accused not to dig the soak pit. The accused did not oblige, objected, took up a quarrel against him. With a common intention to assault him, accused Nos.1 and 2 have wrongly restrained him, abused him in filthy language and insulted him. Accused No.1 by means of club assaulted on P.W.3 and fractured his left hand. P.W.1-Nakalu Ghadi, the brother of P.W.3 came to his rescue, but against him also by means of that club accused No.1 tried to assault on his head, but no injury was inflicted on his left hand. P.W.6-Smt Mangala Ghadi, P.W.4- Narayan Kammar and P.W.5-Mavalu Dharwadkar have came to rescue of P.W.1 and 2 and pacified the quarrel. Later P.W.1 and 3 were taken to the Government Hospital at Haliyal, where they were taken treatment and thereafter P.W.3 took treatment at Hubballi for the fracture. P.W.1 set the law into motion by filing the written complaint to Haliyal Police in Crime No.50/2010. P.W.7-A.P.Mujawar, the PSI has investigated the case and 4 Crl.A.No.100177/2020 filed the charge sheet. The accused No.1 was arrested and brought before the Court on 22.03.2010, he was remanded to judicial custody, on 09.04.2010 he was released on bail.

4. Learned Civil Judge and JMFC, Haliyal (for short, ‘the ‘Trial Court’) on receipt of charge sheet, taken cognizance of the offences, registered the case in Criminal Case No.176/2010. Accused Nos.1 and 2 stood for trial and pleaded not guilty of the charges under Sections 341, 324, 326 and 504 read with Section 34 of IPC. The prosecution placed the evidence of P.W.1 to 9 and marked Ex.P.1 to 8 and identified M.O.1. After examination of accused under Section 313 of Cr.P.C., by the Judgment dated 16.12.2013 the Trial court has convicted the accused No.1 and acquitted the accused No.2. The accused No.1 was sentenced to pay fine of Rs.500/-, in default, he shall undergo simple imprisonment for one month for the offence punishable under Section 341 of IPC, he was sentenced to undergo simple imprisonment for one year for the offence punishable under Section 324 of IPC. Further, he was sentenced to undergo simple imprisonment for two years and to pay fine 5 Crl.A.No.100177/2020 of Rs.5,000/-, in default, to undergo simple imprisonment for six months for the offence punishable under Section 326 of IPC and he was further sentenced to pay fine of Rs.2,000/-, in default, he shall undergo simple imprisonment for six months for the offence punishable under Section 504 of IPC.

5. Aggrieved by the order of conviction, the accused No.1 has preferred the appeal before the appellate Court in Criminal Appeal No.184/2013. Before the appellate Court, the matter was heard and appellate Court by the impugned Judgment dated 31.08.2019 allowed the appeal and set aside the conviction passed by the Trial Court in Criminal Case No.176/2010 dated 16.12.2013 and acquitted the accused No.1 from the charges. Aggrieved by the judgment of acquittal, the State has filed this appeal on various grounds.

6. We have heard the arguments of Sri V.M.Banakar, the learned Additional S.P.P. and Sri Shivasai M.Patil, learned counsel for respondent-accused No.1. 6 Crl.A.No.100177/2020 7. We have perused the impugned Judgment, Judgment of Trial Court, the evidence led by the prosecution and other relevant papers placed before us. The Trial Court has assigned the reasons that there is no evidence placed against the accused No.2 that he was present along with accused No.1 and joined with him with common intention to assault the P.W.1 and 3. Since the State has not preferred any appeal against the Judgment of acquittal against the accused No.2 by the Trial Court, we declined to comment upon the order of the Trial Court as against the 2nd accused. The Trial Court has assigned the reason that the evidence of P.Ws.1, 3 and 6 are reliable evidence, it is supported by the medical evidence by P.W.9-Dr.Kiran Kulkarni and there is a seizure of M.O.1-club, which was seized as weapon of offence under Ex.P.2 supported by P.W.2 and P.W.4 in recording the conviction against the accused No.1.

8. The appellate Court has assigned the reason that the evidence of P.W.1, 3 and 6 though, corroborated the prosecution story they are the interested, related witnesses. P.W.6 was not present at the time of incident, P.W.3 has 7 Crl.A.No.100177/2020 constructed a house in the joint family property, accused persons are enjoying the same in common. There is a civil dispute between the joint family members. There are no independent material witnesses examined by the prosecution, as P.W.4, 5 and 8 have turned hostile and not supported the prosecution case. In view of the civil dispute, false implication of accused by P.W.1, 3 and 6 cannot be ruled out and for this reason not accepted the reasons assigned by the Trial Court and interfered with the order of conviction by allowing the appeal.

9. It is the contention of learned Additional S.P.P. that, P.W.1 and 2 are the relatives of accused, they are residing in the house constructed in the joint family properties; there was no partition in the joint family properties and for this reason, the attempt made by the accused to dug up the road in the property in enjoyment of P.W.3 for construction of soak pit. When it is advised that they can put up soak pit once the properties have properly partitioned, instead of obliging elders advice, the accused No.1 by means of M.O.1- club inflicted injury on P.W.3. P.W.1 came for his rescue, he 8 Crl.A.No.100177/2020 was also inflicted injury, they were threatened and abused also. The prosecution is able to place qualitative evidence through P.W.1, 3 and 6, which is supported by the panch witnesses i.e., P.W.2 regarding weapon of offence as M.O.1, injury sustained by P.W.1 and 3 are explained through P.W.9 Doctor and Investigating Officer has collited the evidence and presented before the Court.

10. It is further contended that the reason assigned by the appellate Court that P.W.1, 3 and 6 are interested witnesses is not proper, as there was no earlier quarrel between them nor there was civil suit pending between the parties. Merely because the acts of accused in construction of soak pit being stopped, they have no licence to inflict injuries on P.W.1 and 3. Hence, the evidence is sufficient, which explains the ingredients of the charges against accused No.1. For this reason, Trial Court has rightly convicted him, but appellate Court has given causal reason that no independent witnesses have been examined. Inspite of P.W.4, 5 and 8 have been examined before the Court, they have been won over by the accused and the 9 Crl.A.No.100177/2020 prosecution and it cannot be expected from the prosecution to bring the entire villager as witnesses. Hence for no reason, the finding of the appellate Court will stand on its own. Hence, he sought for interference by this Court and reverse the impugned judgment and to confirm the order of conviction passed by the Trial Court.

11. On the contrary, learned counsel for the accused has contended that the accused and the injured are the close relatives and members of the joint family. Accused have not objected P.W.3 for construction of house. Contrary P.W.3 objected for construction of soak pit by the accused. P.W.1, 3 and 6 are interested witnesses, there is no corroboration available to the prosecution as P.W.4, 5 and 8 have turned hostile, there is no medical evidence properly supports the prosecution and the finding recorded by the Trial Court is not proper. The appellate Court has evaluated the evidence and held that witnesses are relatives, there is a property dispute, without independent witnesses the interested evidence cannot be accepted and extended the benefit of doubt. Since the accused has enjoying the benefit 10 Crl.A.No.100177/2020 of doubt, the presumption of innocence has been supported by the impugned judgment and submitted that the impugned judgment needs any interference.

12. Having heard the submissions of both sides, we have given our anxious consideration to arguments submitted by both sides. Out of 09 witnesses examined by the prosecution, P.W.1 and 3 are the injured witnesses. P.W.4, 5, 6 and 8 are the eyewitnesses to the incident. Unfortunately, P.W.4, 5 and 8 did not support the prosecution; they resiled from their previous statements as Ex.P.3, 4 and 8. Hence, only evidence available to the prosecution is P.W.1, 3 and 6 and the opinion evidence of the Doctor and the Investigating Officer in the form of P.W.7 and 9.

13. We have evaluated the evidence of P.W.1, 3 and 6. In toto they supported the version of prosecution that on 18.03.2010 at 8.30 a.m. while the accused were digging the road for construction of soak pit, it was advised not to do so till property is divided, but they did not oblige, abused P.W.3 in filthy language and accused No.1 assaulted with M.O.1 on 11 Crl.A.No.100177/2020 the left hand resulting the fracture. When P.W.1 intervene, he was also received the same treatment and sustained injury on his left hand by means of M.O.1 in the hands of accused No.1. P.W.6 though was in the house at the time, after hearing the sound she comes out and saw the accused No.1 insulting P.W.1 and 3 and also inflicting the injury on their hands with M.O.1.

14. The testimony of P.W.9 Dr.Kiran Vasantrao Kulkarni, the Medical Officer, shows that on 18.03.2010 at about 10.15 a.m. he has examined P.W.1 and 3, who came with a history of assault and pain in the left palm and left thump, he has treated P.W.1 and issued Ex.P.6 the Wound Certificate to that effect. He has observed from P.W.3 that (i) cut lacerated wound over the left forearm middle 1/3rd 1X1X1c.m., (ii) cut lacerated wound over the lateral aspect of left forearm 1 X ½ X1c.m. and (iii) swelling and tenderness over distal 1/3rd of left forearm. He has referred P.W.3 to the KIMS Hospital, Hubballi. Thereafter he received X-ray from KIMS Hospital, shows fracture of distal shaft of left ulna and fracture shaft of radius and issued Ex.P.7 12 Crl.A.No.100177/2020 certificate. The opinion of P.W.9 is that if assault by means of M.O.1 injury as referred above is possible. During course of cross-examination of P.W.1, 3 and 6 as well as P.W.9, the defence has suggested that P.W.1 and 3 have sustained injuries due to fall from cycle. This suggestion has not taken support from any other evidence and it is an opinion by P.W.9 that if a cyclist falls on the ground, he may sustain such injuries. This will not take away of the veracity of P.W.1 and 3-injured and P.W.6 the eyewitness.

15. We have carefully evaluated the entire evidence with reference to the charge. Though, it alleges that P.W.1 and 3 were wrongly restrained, abused and insulted, we do not find any evidence which explain the ingredients of the offence under Sections 341, 324 and 504 of IPC. The order of acquittal of accused No.1 by the appellate Court for the offences punishable under Sections 341 and 504 of IPC is proper and it needs to be confirmed.

16. As regarding offence punishable under Section 326 of IPC is concerned, the evidence of P.W.3 did not point out that he has sustained fracture and accused No.1 assaulted 13 Crl.A.No.100177/2020 on his left hand by means of M.O.1. This has been witnessed by P.W.1 and 6 and it is supported by the opinion and evidence of P.W.9. The evidence of P.W.7–A.P.Mujawar, Investigating Officer and also evidence of P.W.2-Ponamma Danappanavar, panch witness, did point of drawing up of Ex.P.2-mahazar and seizure of M.O.1 from the spot. This aspect stood unrebutted and there is no reason why it has to be doubted. Thus, the seizure of weapon of offence in the form of M.O.1 is explained and this weapon has caused the injury on the left hand of P.W.3.

17. The contention of learned counsel for the accused is that P.W.3 is an interested person, there is civil dispute, there is no independent witness to explain the offence. Law has been settled by the Hon’ble Apex Court in the case of Kunarpal @ Surajpal and Others vs. State of uttarkhand and Another, reported in (2014) 16 SCC560 it has held that “Animosity is a double-edged sword – While it can be a basis for false implication, it can also be basis for the crime”. In this background let us consider the reliability of evidence of P.W.3?. 14 Crl.A.No.100177/2020 18. We have carefully evaluated the evidence of P.W.1, 3 and 6, they are relatives not only themselves but to the accused also. As admitted by P.W.3 in the cross- examination, the accused is the grandson of his own brother. Under such circumstances, in a small hamlet of village entire village population are related to each other, then if an incident of this nature taken place, the accused cannot be given licence to do on the ground of relationship. We do not find any probability in the defence that there is property dispute. P.W.1 and 2 are aged 70 and 75 years, they are senior citizens and they are grandparents of accused; at this age, why they want to falsely implicate their grandchildren affecting their future. We are not satisfied that the reasons assigned by the appellate Court and we are not persuaded to accept the arguments canvassed by the defence. Hence, in view of law settled by the Hon’ble Apex Court if the evidence of P.W.3 is qualitative there is no impediment for accepting the same. The Trial Court has observed the demnour of the witnesses while accepting the evidence. The appellate Court has no occasion to observe it, 15 Crl.A.No.100177/2020 hence we are of the considered opinion that the evidence of the prosecution is qualitative, supported by the medical evidence, seizure of weapon of offence is explained and the ingredients of the offence under Section 326 of IPC is satisfied. M.O.1 is the club, which was used as a weapon of offence; even a small blow from it to a person aged 75 years, at that age may suffer fracture. Hence, the conviction of the accused for the offence punishable under Section 326 of IPC by the Trial Court is proper and the acquittal recorded by the appellate Court is erroneous.

19. Now in regard to offence under Section 324 of IPC, we have examined the evidence relating to specific overt act attributed to the accused No.1. PW.1 is the injured, who intervened to rescue P.W.3, at that time he was hit by M.O.1, when he escaped, it caused hurt on his left hand.

20. P.W.9 the treated Doctor, his opinion that M.O.1 may cause such injury cannot be ignored. The testimony of P.W.9 discloses that treating of P.W.1 at Haliyal Government Hospital and M.O.1 was shown him before the Court for opinion. The opinion of Doctor clearly indicates the simple 16 Crl.A.No.100177/2020 injury on the body of P.W.1 by means of M.O.1. The evidence of P.W.1, 3 and 6 are very clear, cogent and acceptable and therefore we are of the opinion that the ingredient of the offence under Section 324 of IPC has been established.

21. As regards appreciation of evidence of interested/ relative witnesses, the Hon’ble Apex Court in the case of Kapildeo Mandal and Ors. –vs- State of Bihar (AIR2008SC533 and Masalti and Ors. –vs- The State of Uttar Pradesh (AIR1965SC202 has laid down that the evidence of the witnesses cannot be judged merely on the basis of his relationship with the deceased and strained relationship with the accused. In para-8 it is held as follows: “8. From the evidence of the witnesses examined by the prosecution, it is clear that there was animosity between the side of the complainant and the accused persons. There was a litigation between the parties and they did not have good relations. The witnesses Mahesh Mandal (PW-5), Brahmadeo Mandal (PW-6), Bimla Devi (PW-7) (wife of the informant) and the informant Ramanand Mandal(PW-9), are closely related to the deceased. At the same time, their presence in the house where the incident took place at 11.00 o'clock at night cannot be doubted. Other witnesses 17 Crl.A.No.100177/2020 who were examined by the prosecution had reached the spot after the incident had already taken place and they were not the eye-witnesses to the incident. Now it is well settled by series of decisions of this Court that while appreciating the evidence of the witnesses related to the deceased, having strained relations with the accused party, their evidence cannot be discarded solely on that basis, but the court is required to carefully scrutinize it and find out if there is scope for taking view whereby the court can reach to the conclusion that it is a case of false implication. The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony, if it otherwise inspires confidence and, particularly so, when it is corroborated by the evidence of independent and injured witnesses. Speaking for a 5-Judge Bench in a celebrated judgment, viz., Masalti and Ors.v. The State of Uttar Pradesh, AIR1965SC202(in para 14), P.B. Gajendragadkar, C.J.

said:

"There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of 18 Crl.A.No.100177/2020 partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is a partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

In Nallabothu Venkaiah v. State of A.P., (2002) 7 SCC117(in para 13), this Court held:

"The test, in such circumstances, as correctly adopted by the trial court, is that if the witnesses are interested, the same must be scrutinized with due care and caution in the light of the medical evidence and other surrounding circumstances. Animosity is double- edged sword and it can cut both sides. It can be a ground for false implication. It can also be a ground for assault. " In Ramanand Yadav v. Prabhunath Jha and Ors., (2003) 12 SCC606(in para 15), this Court held :- "But at the same time if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with 19 Crl.A.No.100177/2020 deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence is biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid."

In State of Himachal Pradesh v. Mast Ram, AIR2004SC5056(in para 11), this Court said :- "The law on the point is well settled that the testimony of the relative witnesses cannot be disbelieved on the ground of relationship. The only main requirement is to examine their testimony with caution. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not the requirement of Law.

22. In view of the above judgments, the Hon’ble Apex Court has settled the law that even if testimonies of relative witnesses are reliable, Court shall not hesitate to accept their versions to arrive at a conclusion to hold that charges have been proved. We have considered testimony of the injured P.W.1 and 3 and also the eyewitness P.W.6, their eivdnece is inspiring the confidence of this Court. We are of the considered opinion that the prosecution is able to make 20 Crl.A.No.100177/2020 out the offence against the accused for the offence punishable under Sections 324 and 326 of IPC.

23. As regarding sentence is concerned, in view of the discussion above, the accused No.1 has to be acquitted of the offences punishable under Sections 341 and 504 of IPC. He has to be convicted under Sections 324 and 326 of IPC. As we notice accused No.1 is aged 24 years, provisions of Probation of Offenders Act, 1958 is not applicable as the higher punishment prescribed for the offence under Section 326 of IPC. In the background of incidence and considering all the circumstances, the extenuating circumstances weigh more than the mitigating circumstance and the sentence imposed by the Trial Court is on higher side, harsh. Having regard to the relationship of the parties, circumstances of the case age of P.W.3 was also contributed for him to sustain injuries and we are of the opinion that the accused deserves leniency in the sentence. Therefore the sentence imposed by the Trial Court has to be modified. As we observed above, accused was in judicial custody between 22.03.2010 till 09.04.2010. Imposing fine for the offence 21 Crl.A.No.100177/2020 punishable under Section 324 of IPC will suffice and period of sentence of 19 days undergone by the accused is sufficient sentence and in addition to the fine of Rs.5,000/- imposed by the Trial Court an another sum of Rs.5,000/- for the offence punishable under Section 326 of IPC and it will meet the ends of justice. Taking into consideration the background of the events, we proceeded to pass the following: ORDER

(i) The appeal is allowed in part. (ii) The Judgment of acquittal dated 31.08.2019 passed in Criminal Appeal No.184/2013 by the appellate Court for the offences punishable under Sections 341 and 504 of IPC is hereby confirmed. (iii) The Judgment of acquittal dated 31.08.2019 passed in Criminal Appeal No.184/2013 by the appellate Court for the offences punishable under Sections 324 and 326 of IPC is hereby set aside. (iv) The accused No.1-Mohan Chandrakanth Ghadi is convicted of the offences punishable under Sections 324 and 326 of IPC. 22 Crl.A.No.100177/2020 (v) The accused No.1 is sentenced to pay fine of Rs.1,000/- for the offence punishable under Section 324 of IPC, in default of payment of fine, he shall undergo simple imprisonment for three months. (vi) The accused No.1 is sentenced to undergo simple imprisonment for 19 days and to pay fine of Rs.10,000/- for the offence punishable under Section 326 of IPC, in default of payment of fine, he shall undergo simple imprisonment for six months. (vii) Out of fine amount so collected, Rs.1,000/- shall be paid to P.W.1 as compensation and Rs.8,000/- shall be paid to P.W.3 as compensation and Rs.2,000/- shall be defrayed towards prosecution expenses. (viii) Under Section 428 of Cr.P.C. the accused No.1 is entitled to set off the period undergone in judicial custody. Ordered accordingly. SD JUDGE SD JUDGE Ckk