Karnataka High Court
Sathisha Basavanneppa Sunagar vs The State Of Karnataka on 15 February, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15th DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.2607 of 2010
BETWEEN
SATHISHA BASAVANNEPPA SUNAGAR
AGED ABOUT 33 YEARS
R/O SAIDAPUR , GOUDAR ONI
DHARWAD
... APPELLANT
(By Sri. SANTOSH B MANE & SRI. N D GUNDE, ADVS.)
AND
THE STATE OF KARNATAKA
REP BY SUBURBAN POLICE
DHARWAD
... RESPONDENT
(By Sri. RAJA RAGHAVENDRA NAIK, ADDL SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER DATED
17.3.2010 PASSED BY THE LEARNED II ADDL. SESSIONS &
SPECIAL JUDGE, AT DHARWAD IN SPL. (S.C.&S.T.)
C.C.NO.21/2009 THEREBY CONVICTING THE APPELLANT FOR
THE OFFENCES P/U/Ss 323, 504, AND 506 PART-I AND
SENTENCING TO PAY FINE OF RS. 1000/- FOR EACH OF THE
OFFENCES WITH DEFAULT CLAUSE.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT, DELIVERED THE FOLLOWING:
2
JUDGMENT
The Present appeal has been preferred by the appellant-accused being aggrieved by the judgment and order of conviction and sentence dated 17th March 2010 passed by the II Additional Sessions and Special Judge, Dharwad, in Special (S.C. & S.T.) CC No.21 of 2009.
2. Brief facts of the prosecution case are that the complainant/PW-1, who was working as a woman constable in Amasebail Police Station, Udupi district, was undergoing training at Police Training School, Dharwad from 02.12.2002 to September 2003, at that time, she came in contact with the accused, who was working as a Police Constable in District Armed Reserve at Dharwad. Thereafter, some affair developed between them and they were also moving around. They had also come to a conclusion that they should get married. After completion of the training, PW-1 left Dharwad and she returned back to Udupi. After coming to know of the fact that the accused resiled from the promise and married another girl, she came to Dharwad on 01.07.2009 3 along with PW-2 to ask the accused and the said effort went in vain. Again on 02.07.2009, when she was proceeding along with PW-2 to go to the house of the accused, at about 8.00 or 8.30 p.m., when they were moving on the footpath in front of The Presentation School at Dharwad, at that time, the accused, who was coming on a motor cycle from the opposite direction, stopped the vehicle on seeking the complainant. When PW-1 asked the accused to marry, the accused refused by stating that she belongs to a caste of marati naik and the members of his family will boycott him if he marries her. There were some exchange of words between the complainant and the accused. At about 8.30 p.m., the accused pulled her hair, slapped and abused her taking the name of her caste and also threatened her with dire consequences. On the next day, i.e. on 03.07.2009, the accused came and handed over her an amount of Rs.50,000/-. After receiving the said amount, PW1/complainant went back to Udupi and after consultation with the elders, she filed a complaint. After investigation, a charge sheet was laid as against the accused. Thereafter, 4 the Special Court took cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, framed charges. The accused pleaded not guilty and claimed to be tried.
3. In order to prove the case of the prosecution, the prosecution got examined PWs.1 to 18 and got marked Exs.P-1 to P-44. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by putting the incriminating materials against him. The accused denied the said incriminating materials. He did not lead any evidence. After hearing the parties to the lis, the impugned judgment of conviction and sentence is passed wherein the accused was convicted for the offences punishable under Sections 323, 504 and 506 part-I of the Indian Penal Code. In for as the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, is concerned, the accused was acquitted.
5
4. The main grounds urged by the learned counsel for the accused are that the evidence of PW-1 is full of omission and contradictions. Though there is delay of 7 days in fling the complaint, the said aspect has not been properly considered and appreciated by the trial Court and has erroneously come to the conclusion that the accused has committed the offences and has convicted the accused. He further contended that PW-2 is a chance witness and she has also not fully supported the case of the prosecution. He further contended that if, really she was present at the time of the incident, definitely, she would have deposed with regard to uttering of the specific words which have been used by the accused at the time of the assault or slap. Non- disclosing the said fact itself, clearly indicates that PW-2 was not present at the time of the incident. He further contended that, admittedly, the incident has taken place near the Presentation Convent School and from the said place of incident, the police station is situated at a distance of 52-100 feet. Instead of filing a complaint at Dharwad, she goes back to the police station where she was working and 6 there she registers a case. Therefore, that itself clearly goes to show that the complainant, deliberately, with an intention to harass and cause inconvenience to the accused, has falsely implicated the accused and has filed a case as against the accused. He further contended that the conduct of the complainant is not cogent and clear. When the alleged incident has taken place on 02.07.2009, she stays back in Dharwad, receives Rs.50,000/- from the accused and then thereafter she went to Udupi and files a complaint. In that light, the appreciation of the evidence by the Court is not just and proper. He further contended that the accused was working as a gun man and his work is 24x7. Then under such circumstances, the presence of the accused at the time of the incident is also not justifiable. In that light, the Trial Court ought to have acquitted the accused by holding that the accused was not present and no such incident has taken place on the said date and time. He further contended that the offences with which the accused has been punished are not punishable with death or imprisonment for life. The accused is admittedly working as a gunman in Reserve 7 Police. In that light, the Tribunal ought to have extended the benefit under the provisions of the Prohibition of Offenders Act, failing to do so, has resulted in miscarriage of justice. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment of conviction and sentence passed by the trial Court.
5. Learned High Court Government Pleader vehemently argued by contending that though several contentions have been raised by the appellant, the fact remains that the accused has slapped and abused the complainant and in order to disprove that part of evidence, no cogent and material has been produced before the Court. Though the accused has taken up the plea of alibi that he was working 24x7, in order to substantiate the said fact, he has not produced any evidence. When once the plea of alibi is taken, if he fails, to prove alibi, then the prosecution case is said to have been proved. In that view, the presence of the accused may be taken into consideration when there is corroborative evidence of PWs.1 and 2. Then 8 under such circumstances, the Trial Court by believing the evidence of PWs1 and 2 has rightly convicted the accused. Hence, he prays for dismissal of the appeal.
6. Keeping in view the contentions raised by the learned counsel and the learned Government Pleader, the question that arises for consideration is whether the appellant-accused has made out any grounds so as to interfere with the order of the trial Court.
7. In order to prove the case of the prosecution, the prosecution examined PWs.1 to 18. PW-1 is the complainant and the victim. PW-2 is a relative and eyewitness to the alleged incident. PWs.3 and 4 are the police constables who were working along with the accused and they were knowing the affair of the accused and the complainant. They have not supported the case of the prosecution and have been treated as hostile. PW-5 is the spot mahazar witness. He has not supported the case of the prosecution. PW-6 is the woman police constable. She has deposed with regard to the 9 earlier transaction between the accused and the complainant and their love affair and the agreement entered into between the accused and the complainant. PW-7 is the owner of the SIM, who handed over the same to the accused. He has not supported the case of the prosecution. He has been treated as hostile. PW-8 is the Tahasildar who issued the caste certificate of the accused as per Ex.P-11. PW-9 is the head constable who took the photographs in the course of drawing the spot mahazar. PW-10 is the Section officer working in the HESCOM, Dharwad, who has deposed to the effect that as on the day and time of the incident, the streets light were on as per Ex.P12. PW-11 is the Junior Engineer who has drawn the sketch of the incident as per Ex.P-13. PW-12 is the sub inspector of Police who registered the case and issued FIR. PW-13 is the Police Inspector who received the records of criminal papers form Udupi to Dharwad and registers a case and handed over the same for further investigation. PW-14 is a cable operator, who is a mahazar witness to the spot mahazar. He has not supported the case of the prosecution and he has been treated as hostile. 10 PW-15 is the police constable who has deposed with regard to the affair of the accused with the complainant. He has not supported the case of the prosecution. PW-16 is the Deputy Superintendent of Police who has issued attendance register of PW-1 and he has also deposed with regard to the leave applied by PW-1 during the said period. PW-17 is the Deputy Superintendent of Police who has deposed that the accused has been posted as a gunman and he was on duty as per Ex.P-22. PW-18 is the Assistant Commissioner of Police who investigated the case and filed charge sheet against the accused.
8. Before going to discuss the points in controversy, it is necessary to note some of the undisputed facts. It is not in dispute that the accused, who was working as a police constable in District Armed Reserve Force; P.W.1 was also posted for training; there was intimacy between accused and P.W.1. It is also not in dispute that the accused, due to his intimacy, promised P.W.1 of marrying her. It is also not in dispute that subsequently accused got married with another girl, by resiling from the promise which 11 he had made to P.W.1-complainant to marry her. The only point that requires to be considered in this appeal is with regard to the evidence produced on record by the prosecution with regard to the alleged incident which had taken place on 02.07.2009, at about 8.30 p.m.
9. P.W.1, in her evidence, has categorically deposed that when herself and P.W.2 were proceeding on the footpath in front of Presentation School, at that time, accused came from opposite direction on a motor cycle and by seeing them, he stopped and when she asked the accused about the marriage, the accused replied that he had already married, and abused by stating that since she belonged to the caste of schedule tribe, he will have to face boycott from the members of his family. She has further deposed that the accused pulled her hair and slapped on her left cheek and further abused her in filthy language. This particular evidence has also been corroborated by the evidence of P.W.2 and even during the course of cross-examination nothing has been elicited to discard this evidence. 12
10. Learned counsel for the accused/appellant vehemently argued by contending that there is a delay in filing the complaint and the conduct of the complainant is also not natural and fair. But, as could be seen from the records it clearly indicates the fact that the accused offered cash of Rs.50,000/- and expressed that their relationship came to an end. Thereafter, the complainant went to Udupi and discussed the matter with her parents and junior uncle. They advised her not to proceed further in the matter. But, subsequently, P.W.1 went to the police station and filed the complaint in this behalf. The conduct of the complainant appears to be quite natural and probable. When she was not married and the accused refused to marry her, then under such circumstances, she might have given a second though to discuss with her parents and thereafter, she has taken steps by filing the complaint only for the purpose of the incident which has taken place on 02.07.2009. The reason and cause shown for delay appears to be just and probable. In the light of the discussions held by me above, the 13 contention of the learned counsel for the appellant that there is a delay is not acceptable.
11. Leave apart the said fact, no woman will come forward immediately to file a complaint against a person, who is also working as a constable in the same department. She might have thought to have a discussion over the said matter with her parents and junior uncle and even though they advised not to proceed further, since the accused took law into his hands and assaulted in the public place, she might have though it fit to take action against the accused. For that reason also, the delay caused in lodging the complaint has been properly explained.
12. Another contention which has been taken by the learned counsel for the appellant is that P.W.1 is a chance witness. But, as could be seen from the cross-examination of the accused, no where her presence has been discarded. P.W.2 has categorically deposed that she was also present when the accused met the complainant on 01.07.2009 and subsequently on 02.07.2009 when the alleged incident took 14 place and, thereafter, on the next day also. This itself clearly goes to show that P.W.2 was moving along with P.W.1. In that light also, the evidence which has been brought on record has not been shaken so as to discard or disbelieve the evidence of P.W.2.
13. It is also further contended by the learned counsel for the appellant/accused that the accused is working as a Gunman and his duty is round the clock i.e. 24 x 7 and there is no question of he going to the complainant, abusing her and assaulting her. The accused- Gunman would be with a person to whom he has been attached. Though a government servant is required to make himself/herself available to work round the clock 24 x 7, that does not mean that all round the clock, he will be on duty. Admittedly, the incident has taken place at 8.30 p.m. in the night. Naturally, at that time, he will be left free, even though he has been attached to some person. Be that as it may. The accused has contended that he was attached as a Gunman and was working round the clock i.e., 24 x 7. The said contention is nothing but taking a plea of alibi. When a 15 plea of alibi is taken, then the burden is on the accused to establish that at the time of the alleged incident he was working as a Gunman. But, no substantial or cogent evidence has been brought on record to believe the version of the accused. In that light also, the contention raised by the learned counsel for the appellant is not acceptable and reliable. On going though the evidence produced by the prosecution in this behalf, it clearly goes to show that the prosecution has established the guilt of the accused beyond all reasonable doubt.
14. Insofar as the offences punishable under Section 323, 504 and 506 Part I of IPC and insofar as the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, on going through the judgment and order of conviction and sentence passed by the Trial Court, it is seen that the Trial Court has considered all the relevant aspects and the defence raised by the accused and has rightly acquitted the accused of the offence punishable under Section 3(1)(x) of the SC/ST act and rightly convicted for the 16 offences punishable under Sections 323, 504 and 506 of IPC. However, when the accused was convicted for the above said offences, then under such circumstances, the Trial Court ought to have taken into consideration Sections 3 and 4 of the Probation of Offenders Act. When the accused is imposed with the sentence of paying the fine alone and when the said offence is not punishable with death or imprisonment for life, then under such circumstances, the Court below ought to have granted the benefit of Probation of Offenders Act and ought to have released the accused on probation for good conduct under Sections 4 and 12 of the Probation of Offenders Act. Not complying with the said provision has also resulted in miscarriage of justice.
15. The learned counsel for the appellant has also relied upon the decision in the case Bharath vs. State by Bhatkal Town Police Station, Bhatkal, Uttara Kannada reported in 2009(4) Kar.L.J. 639. It is relevant to extract paras 9 and 10 of the said judgment which read as under:
" 9. It is the contention of the learned Counsel for the petitioner that the petitioner may be released 17 on probation of good conduct or after due admonition. The accused can be given benefit under section 3 or 4 of the Probation of Offenders Act even though he has paid the fine amount. No doubt, when fine amount is deposited or when the accused has undergone sentence, there is no bar for this Court to apply the provisions of the Probation of Offenders Act. Further, it is the contention of the learned Counsel for the petitioner that the accused is aged about 48 years and he is the first offender and he has been sentenced to pay fine only. In view of the submission made by the learned Counsel for the petitioner and since the petitioner is sentenced to pay fine and as he has paid the fine amount, in my view, the benefit of Probation of Offenders Act should be given to the accused who is working in the State Road Transport undertaking. He was also having dependents like, wife and others, on him.
10. Learned Counsel for the petitioner relies on a decision of the Supreme Court in Trikha Ram v. V.K. Seth and Another. The Hon'ble Supreme Court in the said decision has held as follows:
"(A) Constitution of India, Article 311 -
Misconduct -Punishment - Conviction for criminal offence - Prior opportunity of hearing by disciplinary authority before imposing punishment - Not necessary. Union of India and Another v Tulsiram Patel, AIR 1985 SC 1416, followed.
18
(B) Constitution of India, Article 311- Probation f Offenders Act (20 of 1958), section 12 - Conviction for criminal offence - Release on probation -Dismissal of offender from service by disciplinary authority - Not permissible in view of Section 12 as it will operate as disqualification for future employment with Government - Dismissal order converted into order of removal from service."
Learned Counsel for the petitioner also relies on another decision of the Supreme Court in Rajbir v. State of Haryana. In the said case, the Hon'ble Supreme Court has held as under:
Indian Penal Code, 1860 (45 of 1860), Section 323 - Conviction under - Sentence - Benefit of probation of offenders act - Accused a Govt.
servant - Parties to assault close relatives - Accused released under section 4 of Act -
Held, further that in facts of the case conviction would not affect accused's service. (Probation of Offenders Act, 1958 (20 of 1958), Sections 3, 4)."
On going through the provisions of law laid down in the decision quoted supra wherever the accused is convicted for the offence only for fine, then under such circumstances, the benefit of Sections 3 and 4 of the Probation of Offenders Act should have been extended. Keeping in view the ratio laid down in the aforesaid decision, the accused/appellant is entitled to be released on probation of good conduct under 19 Section 4 of the Probation of Offenders Act. In that light, he is directed to appear before the Trial Court within a period of 90 days from the date of receipt of this order and the Trial Court shall release him after due admonition in this behalf. The appellant has been dealt with under Section 4 of the Probation of Offenders Act and by applying the provisions of Section 12 of the Act, though the accused is convicted, it is also made clear that the said conviction shall not affect his service.
Accordingly, the appeal is allowed in part and the judgment of conviction and order of sentence is modified as indicated above by extending the benefit under the provisions of the Probation of Offenders Act.
Sd/-
JUDGE Kmv/kms