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2020 DIGILAW 1488 (KAR)

Pundalik Manik Alavani v. State Of Karnataka

2020-07-24

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - This appeal has been preferred by the appellant-complainant challenging the judgment of acquittal passed by the learned IX Addl. Sessions Judge, Belagavi in S.C. No. 129/2010 dated 20.07.2017. 2. We have heard Sri K.L. Patil, on behalf of Sri K.S. Patil, learned counsel for the appellantcomplainant, Sri Shivaprabhu Hiremath, learned Addl. Govt. Advocate for the respondent No.1- State so also Sri Srikant T. Patil and Rohit S. Patil, for the respondents 2 and 3. 3. Brief facts of the case of the prosecution are that, complainant and the accused persons are the brothers, they jointly own R.S. No. 162/1A at Hire-Munavalli village. There was a dispute in between them for getting the bore well water. In that light, on 14.08.2009 at about 5 p.m. when the accused persons went to the land to share the water from the bore well to which father of the complainant objected. The accused persons with the common intention picked up quarrel with them and with an intention to commit murder of the complainant and his father, accused nos.1 to 3 thrown chilly powder in their eyes, accused No.1 assaulted the complainant with sickle and accused No.3 assaulted him with the club and tried to take away the life. In that light, a complaint has been registered. On the basis of the complaint a case has been registered in Crime No. 142/2009. After the investigation charge sheet was filed before the learned Magistrate, who in turn committed the case to the Principal District & Sessions Court, Belagavi. Later the case was made over to the learned 9th Addl. Sessions Judge, Belagavi . Learned 9th Addl. Sessions Judge, Belagavi, took cognizance of the case as against the accused Nos.2 and 3 as the accused No.1 has already expired. After hearing learned counsels appearing for the parties, charge was framed and the accused pleaded not guilty and claimed to be tried. As such, trial was fixed. 4. To prove the case of the prosecution, 12 witnesses were examined and got marked 19 documents and 11 material objects. After closure of the evidence statement of the accused was recorded by putting incriminating material as against them but they denied the same but not led any evidence nor produced any documents. As such, trial was fixed. 4. To prove the case of the prosecution, 12 witnesses were examined and got marked 19 documents and 11 material objects. After closure of the evidence statement of the accused was recorded by putting incriminating material as against them but they denied the same but not led any evidence nor produced any documents. After hearing the learned counsel appearing for the parties, the trial court has come to the conclusion that the evidence produced is not sufficient to bring home the guilt of the accused and acquitted accused Nos.2 and 3. Challenging the same, the appellantcomplainant is before this court. 5. The main grounds urged by the learned counsel for the appellant-complainant are that the impugned judgment of acquittal is opposed to law, facts and evidence on record. PWs 1 and 4 are the injured eyewitnesses and they have deposed with regard to the overt acts of each of the accused persons and the said evidence is also corroborated with the evidence of PWs5, 8 and 11, the Doctors who have treated the injured PWs 1 and 4 and issued wound certificate. The trial court without looking into the material, has come to a wrong conclusion and has wrongly acquitted the accused. 6. It is an admitted fact that there was a dispute with regard to the lifting of the water from the bore well and a counter case has also been registered in this regard. Presence of the accused at the place of the incident is also not disputed. Under such circumstances, the trial court ought to have convicted the accused on the basis of the corroborative evidence of the complainant, PW1, PW4 and the doctors. He further submitted that though there is sufficient evidence to hold the accused guilty, the trial Court has come to a wrong conclusion and has wrongly acquitted the accused. On these grounds he prayed to allow the appeal and convict the accused. 7. Learned AGA by substantiating the arguments of the learned counsel for the complainant and prays to dismiss the appeal as devoid of merits. It is the contention of the learned counsel for the respondents 2 and 3 in the first instance that the complainant came prepared with stick, sickles and they are the aggressors, whether they have exceeded the private defence is a question before the trial court. It is the contention of the learned counsel for the respondents 2 and 3 in the first instance that the complainant came prepared with stick, sickles and they are the aggressors, whether they have exceeded the private defence is a question before the trial court. After analyzing the said evidence it has come to a right conclusion and has rightly acquitted the accused. Further, the injuries which have been suffered by the complainant are simple in nature and even nothing has been specifically stated in this behalf. The trial court after looking into the entire evidence has come to a right conclusion and rightly acquitted the accused. There are no good grounds made out by the appellant complainant so as to interfere with the judgment of the trial court. The judgment of the trial court deserves to be confirmed. On these grounds he prayed to dismiss the appeal. 8. The prosecution in order to establish its case got examined 12 witnesses. PW1 is the complainant and the injured witness. He has deposed with regard to the land wherein the brothers are also having share and each one of them were separately cultivating the land and about a common bore well dug by them and that the accused persons were not having any share in the said bore well. Earlier they have also filed the complaint against the accused persons. 9. He has further deposed that on 14.08.2009 he had been to hillock by taking she-buffalos for grazing and his son had been to the field which is at a distance of 1 km. from the said hillock. At about 4.30 p.m. his son came to the land and saw accused persons were watering their land by starting the pump set fixed to the bore well. When he questioned they tried to come and assault. However, he went from the place by entrusting the work of grazing of the shebuffalos to another person who was grazing their cattle. Then himself and his son Pundalik came to the land and saw the accused persons who were stillletting water to their land and he questioned the same. At that time, the accused no.1 threatened that he will not leave them and accused No.3 also came there and threw chilly powder on them and accused No.1 assaulted with sickle on his son Pundalik on his left shoulder and left hand small finger. At that time, the accused no.1 threatened that he will not leave them and accused No.3 also came there and threw chilly powder on them and accused No.1 assaulted with sickle on his son Pundalik on his left shoulder and left hand small finger. At that time, accused No.1 caught hold of the complainant and accused No.2 and assaulted with the sickle on his head and also on the thigh and when he tried to assault, it hit to accused No.1. When the accused No. 3 tried to assault him and again the said assault came and hit to accused No.2. When he came and held accused No.2 he has caused scratch injuries on his shoulder, chest and other parts of the body and as accused No.1 has received injuries and ran away from the said place. The alleged incident has taken place at about 5 p.m. He has further deposed that, thereafter they have been taken to their house and then to the hospital belonging to one Nayak and there they have been treated. Thereafter, they went to Nandagad Police Station and filed the complaint. Thereafter they have been taken to the hospital at Khanapur. 10. During the course of cross-examination he has admitted the fact that they are five brothers having common land and accused No.1 is working as a daily wager in PWD and subsequently he has become a permanent employee. He has also further admitted that when accused No.1 retired his children were still young. He also admitted that by the side of the bore well there is a pond and a pipeline has been laid to it. He further admitted that accused No.1 was given the paddy field. 11. He has further deposed that, they have put lock to the bore well, one key will be with Adiveppa and another key will be with him. He has admitted the fact that, accused No.2 has filed a complaint against the complaint and other witnesses. He has further admitted the fact that during the month of August there will be crops in the land. He has denied the suggestion that on 04.08.2009 at about 4 p.m. accused persons were watering the land and there were three keys to the lock put to the bore well, one key with Basavanni, another key with Gangappa and one key with his father. He has denied the suggestion that on 04.08.2009 at about 4 p.m. accused persons were watering the land and there were three keys to the lock put to the bore well, one key with Basavanni, another key with Gangappa and one key with his father. He has further admitted the fact that he went and bring his father from the hillock. The other suggestions have been denied. He has further denied that before he filed the complaint, another complaint was registered for having murdered the father of Dyamappa. 12. Pw2 is the panch witness to spot mahazar- Ex.P.3, seizure mahazar of the clothes as per Ex.P.4, seizure of the sickle at the instance of accused No.2 as per Ex.P.5. He has not supported the case of the prosecution and has been treated as hostile. PW3 is also a witness to the spot mahazar Ex.P.3 seizure of the clothes as per Ex.P.4 and seizure of the sickle at the instance of accused No.2 as per Ex.P.5. During the course of cross-examination nothing has been elicited so as to discard his evidence. 13. Pw4 is the injured eyewitness and son of PW1. He has reiterated the evidence of PW1. During the course of cross-examination also nothing has been elicited so as to discard his evidence. 14. Pw5 is the Doctor who treated PWs1 and 4 who have gone with the injuries and after giving first aid he told them to go to the Government Hospital. He has admitted during the course of cross-examination that deep injuries would be caused if assault is made with the sickle. 15. Pw6 deposed that on 14.08.2009 at about 9.30 p.m. he was proceeding towards the village. At that time he saw PWs.1 and 4 coming from the opposite direction with the injuries and they told that accused Nos.2 and 3 have assaulted with the sickle and stick and he told them to go to the hospital. During the course of crossexamination nothing has been elicited. 16. Pw7 is the witness who went to the hospital and saw the injured. He is also a witness to the recovery of MOs 4 to 8. PW8 is the Doctor who has treated the injured-PWs 1 and 4 on 15.08.2009 at about 3.55 AM. He has also given description of the injuries and has issued wound certificate as per Exs.P.8 and P.9. 17. He is also a witness to the recovery of MOs 4 to 8. PW8 is the Doctor who has treated the injured-PWs 1 and 4 on 15.08.2009 at about 3.55 AM. He has also given description of the injuries and has issued wound certificate as per Exs.P.8 and P.9. 17. Pw9 is the Police Constable who carried the seized articles to RFSL, Belagavi. PW10 is the ASI who received complaint as per Ex.P.1 and has issued FIR as per Ex.P.11. PW11 is the Doctor who has treated PWs 1 and 4 who have come with the history of assault. He has also issued wound certificates as per Exs.P.13 and 14. He has also given opinion after examination of the weapons as per Exs.P.15 and 16. During the course of crossexamination nothing has been elicited from the mouth of this witness. PW12 is the Police Inspector who investigated the case and filed the charge sheet against the accused persons. 18. On perusal of the records it indicates that there was some dispute with regard to the watering of the land from the pump set which is situated in R.S. No. 162/1E. It is not in dispute that the accused persons are the brothers and they own the land jointly. It is the case of the prosecution that on 14.08.2009 at about 5 p.m. the accused persons went to the land fallen to their share and were taking water from the bore well. 19. Pw1 in his evidence also deposed that when son of the complainant went and asked they were taking water as the paddy crop is drying up. In that light, some quarrel took place and thereafter he went to the hillock where his father was grazing she-buffalos and they brought the complainant and at that time the incident has taken place. 20. It is an admitted fact that on the basis of the complaint filed by the accused a case has been registered in Crime No. 141/2009 and in the present case, a case has been registered in Crime No. 142/2009. The presence of the accused at the place of the incident is not disputed but the only question which has been considered by the trial Court is that who are the aggressors. The presence of the accused at the place of the incident is not disputed but the only question which has been considered by the trial Court is that who are the aggressors. On perusal of the evidence and material placed on record it goes to show that it is the present complainants who came and started quarrelling and that they have assaulted and a death has taken place in this behalf a complaint has been registered in Crime No. 141/2009. When the complainant and his men have caused the death of the deceased by assaulting on the stomach, in that light, if while resisting the same any scuff le has taken place and if the complainant and his son-PW4 if sustained any injuries, under such circumstances the private defence available to the accused person is said to have been exercised. 21. The Hon'ble Supreme Court in the case of Darshan Singh V. State of Punjab and Another, (2010) 2 SCC 333 has laid down the ratio as to under what circumstances the private defence can be exercised. What are the principles which are to be followed regarding the "right of private defence" has been discussed, wherein at Head notes it is laid down as under: (i) Self preservation is the basic human instinct and is duly recognized by the criminal jur isprudence of all civilized countries. All f ree, democratic and civilized countries recognize the right of private defence within cer tain reasonable limits. (ii) The right of private defence is available only to one who is suddenly conf ronted with the necessity of averting an impending danger and not of self -creation. (iii) A mere reasonable apprehension is enough to put the right of self -defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be commit ted if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension ar ises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to except a person under assaul t to modulate his defence step by step with any ar ithmetical exactitude. (iv) The right of private defence commences as soon as a reasonable apprehension ar ises and it is coterminous with the duration of such apprehension. (v) It is unrealistic to except a person under assaul t to modulate his defence step by step with any ar ithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self -defence, it is open to consider such a plea if the same arises f rom the mater ial on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self -defence inf lict any harm even extending to death on his assailant either when the assaul t is attempted or directly threatened. - - - 22. On going through the above said decision of the Apex Court wherein it has been observed that, mere apprehension is enough to put right of self defence into operation and it is not necessary that there should be actual commission of the offence in order to give rise to the right of private defence. This proposition of law has been laid down at paragraph Nos. 22, 31 and 32 of the decision quoted supra, which reads as under: 22. Section 100 of the Indian Penal Code is extracted as under: "100. When the right of private defence of the body extends to causing death. -- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: -- First. -- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. -- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly. -- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly. -- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly. -- An assault with the intention of committing rape; Fourthly. -- An assault with the intention of gratifying unnaturallust; Fifthly. -- An assault with the intention of kidnapping or abducting; Sixthly. -- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release." Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section 100 applies to cases where there is reasonable apprehension of death while second clause is attracted where a person has a genuine apprehension that his adversary is going to attack him and he reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent of causing the latter's death in the exercise of the right of private defence even though the latter may not have inflicted any blow or injury on him. 31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge. 32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society, and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society, and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences. - - - 23. Keeping in view the above said proposition of law, facts and circumstances of the case we are of the considered opinion that the said private defence is available to the accused persons and after the incident, the present complaint has been filed only to overcome the earlier complaint. 24. Taking into consideration the above said facts and circumstances we are of the considered opinion that the trial Court after taking into the facts and circumstances has come to a right conclusion and has rightly acquitted the accused. There are no good grounds made out so as to interfere with the said judgment and the same is liable to be confirmed. 25. We are conscious of the fact that whenever the trial Court by exercising its power has acquitted the accused, the appellate Court must be very slow in interfering with the judgment of acquittal. In that light, the judgment of the trial Court deserves to be confirmed. Accordingly, the appeal is dismissed.