Dismissed

State of Karnataka, v. Kedari Vasant Gunari

Karnataka HC18 Aug 2020CRL.A/100349/2016

Case brief

AI extract

What is this about?

The High Court dismissed the State's criminal appeal against the acquittal of an accused in a SC/ST case. The Court held that the Special Court rightly acquitted the respondent due to glaring contradictions in the prosecution evidence, hostility of mahazar witnesses, and failure to examine the investigating officer.

What did the court decide?

Criminal appeal dismissed; the judgment of acquittal dated 31.05.2016 was affirmed.

State of Karnataka, Vs Kedari Vasant Gunari — Caste Atrocities | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶2

DATED THIS THE 18^TH DAY OF AUGUST 2020

¶3

PRESENT

¶4

THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

¶5

AND

¶6

THE HON’BLE MR. JUSTICE V. SRISHANANDA

¶7

CRL.APPEAL NO.100349/2016

¶8

BETWEEN:

¶9

STATE OF KARNATAKA, REPRESENTED BY THE KALAGHATAGI POLICE STATION, RURAL SUB-DIVISION, DHARWAD THROUGH THE ADDL.STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA DHARWAD BENCH.

¶10

…..APPELLANT

¶11

(BY SRI. V.M. BANAKAR, ADDL.SPP.)

¶12

AND:

¶13

KEDARI VASANT GUNARI, AGE: 28 YEARS, OCC: FARMER, R/O: SANGAMESHWAR, TQ: KALAGHATAGI,

¶14

…..RESPONDENT

¶15

(BY SRI. K.L. PATIL, ADV.)

¶16

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C. PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 31.05.2016 PASSED BY THE LEARNED II ADDITIONAL DISTRICT AND

¶17

¶18

SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPECIAL SC/ST C.C. NO.11 OF 2015 AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504, 324, 307 OF IPC AND SECTION 3(1) (X) AND 3(2) (V) OF SCHEDULE CASTE AND SCHEDULED TRIBE (PREVENTION OF ATROCITIES) ACT, 1989.

¶19

THIS APPEAL IS COMING ON FOR HEARING THIS DAY, V.SRISHANANDA, J., DELIVERED THE FOLLOWING:

¶20

JUDGMENT

¶21

Being aggrieved by the judgment dated 31.05.2016, passed in Special SC/ST C.C. No.11/2015 on the file II Additional District and Sessions & Special Judge, Dharwad the State has preferred this appeal questioning the validity of judgment whereby the accused has been acquitted from the offences punishable under Sections 324, 504, 307 of IPC and Sec.3(1)(x) and 3(2)(v) of SC/ST (PA) Act 1989.

¶22

The facts that are germane for the disposal of the appeal are as under :

¶23

2.1 On 27.7.2014 about 8.30 P.M. in

¶24

Sangameshwar village when complainant Maruti was proceeding infront of accused’s house, accused picked up quarrel by demanding Rs.200/- which was due to his

¶25

¶26

relative Pradeep and when complainant pleaded his inability to repay, accused abused him by taking his caste name and assaulted him with an axe on his head with an intention take away his life.

¶27

2.2 It is further contended that complainant sustained bleeding injury and one Vishnu Madar and Maruthi Kale shifted injured to Government Hospital, Kalaghatagi in ambulance.

¶28

2.3 Police visited and enquired the complainant, and his oral complaint was reduced into writing based on which FIR was registered in Crime No.0158/2014 on 28.07.2014 .

¶29

The jurisdictional police after completing the investigation filed charge sheet against the respondent on 07.07.2015.

¶30

The Special Court secured the presence of the respondent and after hearing the parties framed charge against the accused-respondent for the offences punishable under Sections 324, 504, 307 of IPC and

¶31

¶32

Sec.3(1)(x) and 3(2)(v) of SC/ST (PA) Act 1989. The respondent, when the charge was read over, pleaded not guilty and claimed to be tried.

¶33

The prosecution to prove the case against the

¶34

respondents examined 13 witnesses as P.W.1 to P.W.13.

¶35

P.W.1 : Maruti F. Chalawadi, is the injured complainant. His statement is recorded in writing and is treated as per Ex.P1-the complaint.

¶36

P.W.2 & P.W.3: Vishnu F. Madar and Laxman F. Chalawadi are the eye witnesses to the incident.

¶37

P.W.4 : Mahadevappa R. Kedari is a panch witness to the Ex.P3.

¶38

P.W.5 : Manjunath L. Pillukar is a panch witness to the sketch (Ex.P4(c)).

¶39

P.W.6 : Yallari N. Rachatakar, is panch witness to Ex.P5 and 6.

¶40

P.W.7: Santosh H. Shindhe, is the panch witness to Ex.P5 and 6.

¶41

¶42

P.W.8 : Gulabi M. Gunari, is the wife of brother of the accused.

¶43

P.W.9 : Marevva S. Kale is the sister of mother of complainant.

¶44

P.W.10 : Dr. Motilal S. Chavan is the Medical Officer in Government Hospital, Kalaghatagi, who is examined the complainant.

¶45

P.W.11 : Vittal A. Suryavanshi is the Section Officer in HESCOM, Kalagatagi

¶46

P.W.12 : K.V. Hadli, is working as Assistant Engineer in PWD Department, who has prepared the sketch.

¶47

P.W.13: Manjunath I. Naduvinamani, was working as Police Inspector in Kalagatagi Police Station.

¶48

The prosecution has relied upon Exs.P.1 to

¶49

P.12 which include the complaint (Ex.P.1) lodged by complainant, Photograph by PW2 (Ex.P.2), spot panchanama by PW2 (Ex.P.3), Hand sketch by PW2

¶50

¶51

(Ex.P4), photograph by PW6 (Ex.P5), Seizure panchanama by PW6 (Ex.P.6), Statement of PW8 (Ex.P.7), Wound certificate by PW10 (Ex.P8), Letter of PW11 (Ex.P9) Spot map by PW12 (Ex.P10), Covering letter by PW12 (Ex.P11), FIR by PW13 (Ex.P12),

¶52

The respondent has got marked certain portions of the statement made in the complaint as Ex.D.1. The respondent, in his statement under Section 313 of Cr.P.C, has denied the evidence against him, but has not led any evidence.

¶53

After hearing the parties Special court acquitted the accused from all charges. It is that judgment which is under challenge in this appeal.

¶54

The learned Additional State Public Prosecutor argued that the Special Court wrongly recorded an order of acquittal against the respondent. It is his submission that trial court failed to appreciate the oral testimony of PW1, who is an injured witness, and that of PW2 and 3, who are the eye witness. These witnesses have deposed about special overt acts of the respondents. The Special

¶55

¶56

Court misdirected itself in concluding that PW2 and 3 are relatives of PW1 and as such, their testimony is interested testimony.

¶57

He further argues that the injury noted by doctor as per wound certificate (Ex.P8) that is the (i) cut lacerated wound on left ear, (ii) cut lacerated wound on occipital region and (iii) cut lacerated wound into half C.M. on left partial region, could be caused only when that assault is by a sharp object. The recovery of MO1 by the investigation agency and the opinion of doctor clearly establish that prosecution’s case is true and correct and therefore, Special Court ought to have convicted the accused. It is his further submission that there is no delay in lodging the complaint and reason assigned by the Special court in regard to the delay is not sustainable in the eye of law. It is also his submission that the Special Court has failed to draw necessary presumption while appreciating the prosecution’s case and prayed for allowing the appeal.

¶58

¶59

Per contra, learned counsel appearing for the accused – respondent vehemently contended that the Special Court has rightly appreciated the material on record and has reached the proper conclusion that prosecution has failed to establish its case beyond all reasonable doubt and therefore, acquittal of the accused – respondent is justified.

¶60

He further submitted that in an appeal against an acquittal, the innocence of accusedrespondent is reinforced and therefore, this court has to look for compelling reasons to allow the appeal. The appeal grounds do not compel interference. Thus, prayed for dismissal of the appeal.

¶61

In view of the rival contentions urged by the parties, the following points arise for consideration are :

¶62

Whether finding recorded by the Special Court in acquitting the accused for the offence punishable under Section 324, 504, 307 OF IPC and Sec. 3(1)(x) and 3(2)(V) of SC/ST(PA) Act 1989 suffers from the legal infirmities and thus calls for interference.?

¶63

¶64

The above point is answered in the negative for the following :

¶65

REASONS

¶66

In order to prove the case on hand, prosecution strongly relies upon the evidence of PW1 to 3. PW1 is the injured complainant. He has deposed before the court about the quarrel wherein the accused abused him with by his caste and assaulted with an axe. It is his specific case that PW2 secured the ambulance and he was shifted to Kalaghatagi hospital, and Police took his complaint in the hospital vide Ex.P1.

¶67

In his cross examination, he has elicited that the Police had not seen MO1 and when he visited the Kalaghatagi hospital, he was conscious. He also admits that doctor had enquired about the incident and so also doctor who had accompanied him in ambulance but none of them recorded that Police had visited Kalaghatagi hospital at about 10.30 p.m. and he was inpatient for about 7 days at Hubli KIMS hospital. It is also elicited that he use to consume liquor once in a week and under

¶68

¶69

the influence of liquor, he fell down and sustained injuries as noted in the wound certificate. He admits that his clothes were blood stained on the date of incident but Police have not seized the same.

¶70

PW2 and 3 are eye witnesses to the incident. According to prosecution they have supported the case. In cross examination of PW2, it is elicited that he had studied up to B.A. B.Ed., and the injured PW1 was not shifted to PHC in his village. He admits that he did not try to pacify the quarrel. He admits that at the time of incident PW1 had consumed liquor. He has denied having given a statement before Investing Officer stating that he reached the spot after accused had run away from the spot vide Ex.D1.

¶71

In the cross examination of PW3, it is elicited that the Police visited the Kalaghatagi hospital and they have lodged the complaint in the Kalaghatagi hospital itself. He admits that PW1 is in the habit of consuming liquor. He admits that his clothes were also stained with blood when PW1 was shifted to hospital. He also admits

¶72

¶73

that he was enquired by the Police in Kalaghatagi hospital, but, they have not seized the blood stain clothes. He admits that apart from PW2, other villagers were also present at the time of incident. He also admits that there was a relationship between wife of Malleshi and PW1.

¶74

PW4, 5, 6, 7 and 8 have not supported the prosecution case. PW9 is a younger sister of the injured complainant’s mother. She has stated that on coming to know about the incident she had accompanied PW1 to Kalaghatagi hospital and also at Hubli hospital. She further deposed that she came to know about the incident through PW1. In her cross examination, she admits that PW1 is addicted to liquor. She admits that house of accused is situated to ½ km away from her house. She admits that PW1 was harassing CW9 under the influence of liquor. She has answered that the Police had visited the Kalaghatagi hospital and they went to KIMS hospital at 11.30 p.m.

¶75

¶76

The Doctor, who examined PW1 has issued Ex.P8-wound certificate is examined as PW10. He has supported the prosecution case. In cross examination, it is elicited that name of the assailant is revealed by PW1 at the time of admission and treatment. He admits that he had not noted the age of injury in Ex.P8 and so also shape of the injured. He admits that if a person falls on a surface under the influence of the liquor, the injury noted under Ex.P8 could be caused.

¶77

Section Officer of HESCOM, who has issued Ex.P9 and deposed about the existence of power as per Ex.P13, is examined as PW11. PW12 is the Engineer who has prepared the spot sketch vide Ex.P10. Their evidence is formal in nature.

¶78

The Inspector who enquired PW1 in KIMS hospital and registered the case vide Ex.P1 is examined as PW13. In his cross examination, he admits that he did not came to know PW1 was shifted to the hospital in 108 Ambulance and he did not obtain the documents from

¶79

¶80

Ambulance driver. The Officer who carried out the further investigation is not examined as his presence could not be secured by the prosecution despite issuing nonbailable warrant. The mahazar witnesses have turned hostile, and on a close scrutiny of the entire evidence on record, in the absence of examination of further Investigating Officer, the recovery and spot mahazar are not proved.

¶81

As could be seen from the complaint, it is received from PW13 on 28.07.2014 at 1.00 a.m. in Kalaghatagi taluk Health Care and FIR is registered at 1.30 a.m. on 28.07.2014, and the same is reached to the Special Judge at 8.00 p.m. The incident has occurred at 8.30 p.m. on 27.07.2014. PW1 has deposed that Police visited the Kalaghatagi hospital and took his statement as is found in Ex.P1. Whereas, PW3 has stated that at 1.00 a.m. they were shifted to KIMS Hubli hospital. PW8 says that at 11.30 p.m. on 27.07.2014, PW1 was shifted KIMS Hospital. In Ex.P8-wound certificate, it is mentioned that PW1 alone visited the hospital with a

¶82

¶83

history of assault on 27.07.2014 at 12.10 p.m. on 28.07.2014 and he had examined him in General hospital, Kalaghatagi. There is no mention in wound certificate that PW1 was shifted to KIMS hospital.

¶84

PW.10 in his oral evidence also has not stated that he had directed the injured to be shifted to KIMS hospital, Hubli, however, Ex.P8 does not mention that PW1 was inpatient in Kalaghatagi hospital, or that he was an inpatient in KIMS hospital, Hubli. No doubt Ex.P8 mentions about X-ray certificate and CT scan certificate. But, abnormalities are not observed from these reports as per Ex.P8. The injury noted by PW10, are simple in nature. PW10 also unequivocally admits in his cross examination that PW1 did not disclose the name of assailant; why PW1 did not reveal the name of assailant to the doctor at Kalaghatagi or at the doctor at KIMS hospital, Hubballi remains unanswered. Further, the time of registration of FIR is also not properly explained by the prosecution. There is considerable delay in reaching the FIR to the court.

¶85

¶86

PW.1 admits that police had not shown him the axe which was seized by them under seizure mahazar. The investigation agency has not seized the blood stained clothes worn by PW1, nor examined the witnesses who shifted PW1 to Kalaghatagi Hospital. PW2 does not spell out in his evidence that PW3 was also present at the time of incident. PW8 has come to scene after she came to know that PW1 is assaulted by accused. Therefore she is a hearsay witness.

¶87

In view of glaring contradictions found in the prosecution evidence with regard to the registration of the case; injury sustained by PW1 and treatment thereof, presence of PW2 and PW3 at the time of incident special court disbelieved the prosecution’s case about the alleged incident, and acquitted the accused.

¶88

It is well settled that in a criminal case, accused is presumed to be innocent till charge/s leveled against him is proved beyond reasonable doubt. Recording of an order of acquittal by a competent court after full fledged trial strengthens such innocence of the

¶89

¶90

accused as is held by in the decisions of Hon’ble Apex Court reported in (1953) SCR 418 ( Ajmer Singh v. State of Punjab) and (1963) 2 SCR 405, (M.G. Agarwal v. State of Maharashtra and (2008) 16 SCC 686 (Suraj Singh Vs. State of Uttar Pradesh) . So also, it is equally well settled legal proposition that if two views are permissible in a given case, the view which favours the accused must be preferred.

¶91

In the light of above, even after reappreciation of the evidence on record, we do not find any good grounds to interfere with the finding recorded by the Special Court in acquitting the accused for the charges leveled against him and pass following:

¶92

ORDER

¶93

The appeal is merit less and hereby dismissed.

Sd/-

JUDGE

Sd/JUDGE

MNS/

State of Karnataka, v. Kedari Vasant Gunari

Case brief

What is this about?

What did the court decide?

State of Karnataka, v. Kedari Vasant Gunari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vishnu Bheerappa Naik Vs Ashok Ganapati Naik

State of Karnataka Vs Ashok Ganapati Naik

State of Karnataka, Vs Devaraj Narayan Naik

State of Karnataka Vs Ganesh @ Ganapati

State of Karnataka, Vs Tukaram Ganapati Kadam

State of Karnataka, Vs Jafer @ Mohammed Jafer