Karnataka High Court
Sugayya And Ors vs The State on 19 July, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2023:KHC-K:5588
CRL.A No. 200129 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.200129 OF 2017
BETWEEN:
1. SUGAYYA S/O MALLAYYA @ MALLIKARJUNAYYA,
AGE: 57 YEARS OCC: AGRICULTURE
R/O MATURU, TQ: SINDHNOOR
DIST: RAICHAUR-584101
2. NAGESHAYYA S/O BETTADAYYA
AGE: 35 YEARS OCC: AGRICUALTURE
R/O MATURU, TQ: SINDHNOOR
DIST: RAICHUR-584101
3. SHANKRAYYA S/O BETTADAYYA HIREMATH
AGE: 30 YEARS SOCC: AGRICUALTURE,
R/O HANCHANAL TQ: SINDHANOOR
DIST: RAICHUR-584101
4. BASAYYA S/O SOMAYYA
AGE: 30 YEARS OCC: AGRICULTURE
R/O MATURU TQ: SINDHNOOR
Digitally signed by
KHAJAAMEEN L
DIST: RAICHUR-584101
MALAGHAN
Location: HIGH COURT
OF KARNATAKA ...APPELLANTS
(BY SRI. MAHANTESH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
R/BY SPL. SPP.
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585102
( TRHOUGH DY. S.P.TURVIHAL P.S.
DIST: RAICHUR)
...RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL, HCGP)
-2-
NC: 2023:KHC-K:5588
CRL.A No. 200129 of 2017
THIS CRIMINAL APPEAL FILED UNDER SECTION 374 (2)
OF CR.P.C. PRAYING TO ADMIT THIS APPEAL, CALL FOR THE
RECORDS FROM THE COURT BELOW AND SET-ASIDE THE
JUDGEMNT OF CONVICTION AND ORDER OF SENTENCE
DATED: 05.09.2017. PASSED BY THE ADDL.SESSIONS JUDGE
/ SPEICAL JUDGE AT RAICHUR IN SPECIAL A.C.NO.55/2014
AND ACQUIT THE APPELLANTS - ACCUSED NOS.1, 2, 5 AND
6.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 374 (2) of Cr.P.C. is filed by the appellant challenging the judgment and order dated 05.09.2017, passed by the learned Additional Sessions Judge / Special Judge, Raichur in Spl.A.C.No.55/2014, by which the accused Nos.1, 2, 5 and 6 are convicted for the offences punishable under Sections 355 read with Section 149 of IPC and accuse Nos.1 and 2 are convicted for the offences punishable under Sections 3 (1) (x) of SC/ST (Prevention of Atrocities) Act, 1989.
-3-NC: 2023:KHC-K:5588 CRL.A No. 200129 of 2017
02. The case of the prosecution is that, on 09.08.2014 accused Nos.1 and 2 prevented the PW.1 and 3 from entering the Temple and accused Nos.1 and 2 abused the PWs.1 and 2 by referring to their caste. The accused No.3 caught hold the hair of PW.2. The accused Nos.4, 5, 7 and 8 kicked the PW.1 with their legs. The accused Nos.5 and 6 assaulted the PWs.1 and 2 on their back with chappals.
03. After the investigation, the police laid the charge- sheet for the aforesaid offences. The learned Sessions Judge after receipt of the charge-sheet took the cognizance for the aforesaid offences. The charges were framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
04. The prosecution to prove its case, examined PWs.1 to 8 and exhibited documents at Ex.Ps.1 to 6(b) and marked M.O.1 and 2. After completion of evidence of prosecution witnesses, the incriminating circumstances found in the evidence of prosecution, were put to the accused, to which they denied.
05. The learned Sessions Judge, after appreciating the evidence on record, passed the impugned judgment of conviction and order of sentence.
06. The learned counsel for the appellants - accused submits that, the omnibus and general allegations that, the accused Nos.1 and 2 abused the PW.1 with reference to the -4- NC: 2023:KHC-K:5588 CRL.A No. 200129 of 2017 caste of the victim, does not constitute an offence punishable under Section 3 (1) (x) of the SC/ST (POA) Act, 1989. He further submits that, there are contradictions in the statement of PWs.1 and 2 and the eyewitnesses to the incident namely PWs.3 and 4, with the regard to assault made by accused Nos.5 and 6 with chappals on the back of the PWs.1 and 2. Hence, the prosecution having not proved the guilt of the appellants - accused herein beyond all reasonable doubt, the impugned judgment of conviction and the order of sentence passed by the learned Sessions Judge, is not sustainable.
07. On the other hand, the learned High Court Government Pleader submits that, the evidence of PWs.1 and 2 and the eyewitnesses to the incident PWs.3 and 4 who have categorically stated the specific overt-act of each of the accused, clearly establishes the guilt of the deceased. Hence, the learned Sessions Judge, after appreciating the evidence on record in a proper perspective, has rightly passed the impugned judgment of conviction and the order of sentence, and the same does not warrant any interference.
08. Considered the submissions made by the learned counsel for the parties and also perused the Trial Court records.
09. The charge-sheet material discloses that, the accused Nos.1 and 2 simultaneously abused the PWs.1 and 2 in filthy language by referring to their caste. Except the omnibus and general allegations, there is no specific allegation as against the accused Nos.1 and 2, as to how and in what manner, they abused the PWs.1 and 2 in filthy language by referring to his caste.
-5-NC: 2023:KHC-K:5588 CRL.A No. 200129 of 2017
10. Hence, the conviction of accused Nos.1 and 2 for the offence punishable under Section 3 (1) (x) of SC/ST (POA) Act, 1989, only on the basis of omnibus and general allegations, is not sustainable in law.
11. To prove the guilt of the accused Nos.5 and 6 for the offence punishable under Section 355 read with Section 149 of IPC, the prosecution has examined the PWs.1 and 2, who were allegedly have been assaulted by accused Nos.5 and 6 with chappals on their back. PW.1 in his examination-in-chief has stated that, the accused No.5 assaulted him on his back with chappals. Similarly, PW.2 in his examination-in-chief has stated that, he was assaulted by accused No.6 on his back with the chappals. PW.3 who is the eyewitnesses to the incident, has stated on oath that, accused Nos.1 and 5 assaulted PW.1 with chappals. Similarly, PW.4 who is eyewitnesses to the incident, has stated that, the accused Nos.1, 2 and 5 have simultaneously assaulted the PW.2 with chappals.
12. On appreciation of evidence of PWs.1 and 2 and eyewitnesses to the incident i.e., PWs.3 and 4, there are major contradictions and omissions with regard to the assault made by accused Nos.5 and 6. The prosecution has failed to establish beyond all reasonable doubt, as to which of the accused assaulted PWs.1 and 2 with chappals. The accused to establish that, the FIR was lodged by the PW.1, as a result of animosity between the accused No.1, one Siddanagouda, who was examined stated that, there was a dispute between the father -6- NC: 2023:KHC-K:5588 CRL.A No. 200129 of 2017 of the accused No.1 and himself. The PWs.1 to 5, are the followers of Siddanagouda. To substantiate the same, got marked plaint as Ex.D.1 and charge-sheet as Ex.D.2. However, the learned Sessions Judge, has not appreciated the defence evidence of accused No.1, which establishes that, there was a dispute between the father of the accused No.1 and Siddanagouda and the FIR was lodged at the instance of Siddanagouda to falsely implicate the accused No.1.
13. Since, there are major discrepancies in the statement of PWs.1 and 2 and eyewitnesses to the incident namely PWs.3 and 4, a doubt arises as to whether the accused Nos.5 and 6 assaulted the PWs.1 and 2 with chappals on their back. When two views are possible, one pointing towards guilt of the accused and the other towards accused's innocence, the view favouring the accused's innocence has to be preferred. Hence, the prosecution having failed to establish the guilt of the accused herein beyond all reasonable doubt, the learned Sessions Judge, has committed an error in passing the judgment of conviction and the order of sentence. Accordingly, I pass the following;
ORDER
i. The Criminal Appeal is allowed.
ii. The judgment of conviction and the order of
sentence dated 04.09.2017 passed by the
Additional Sessions Judge / Special Judge, at Raichur in Special A.C.No.55/2014, is hereby set- aside.
-7-NC: 2023:KHC-K:5588 CRL.A No. 200129 of 2017 iii. The appellants - accused Nos.1, 2, 5 and 6, are hereby acquitted of the offences punishable under Sections 355 read with Section 149 of IPC and under Sections 3 (1) (x) of the SC/ST (POA) Act, 1989.
iv. The learned Sessions Judge, is hereby directed to release the fine amount which is deposited by the appellants - accused Nos.1, 2, 5 and 6.
v. The bail bonds executed if any stand canceled.
Sd/-
JUDGE KJJ List No.: 1 Sl No.: 60