Karnataka High Court
Parmanna S/O Basanna Joghar Ors vs The State Through on 21 December, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.3522 OF 2012
BETWEEN:-
1. PARMANNA S/O BASANNA JOGHAR
AGE: 50 YEARS, OCC: AGRICULTURE
2. BASANNA S/O NADIGERAPPA PEERGAR
AGE: 52 YEARS, OCC: AGRICULTURE
3. MANAPPA S/O NINGAPPA HOUGAR
AGE: 30 YEARS, OCC: AGRICULTURE
4. BHIMARAYA S/O BALAPPA HALBHAVI
AGE: 60 YEARS, OCC: AGRICULTURE
5. MALLAPPA S/O BHIMARAYA JOGHAR
AGE: 25 YEARS, OCC: AGRICULTURE
6. SHEELWANTH S/O PARAMANNA
AGE: 20 YEARS, OCC: AGRICULTURE
7. SIDDAPPA S/0 NINGAPPA JOGHAR
AGE: 32 YEARS, OCC: AGRICULTURE
8. BHIMARAYA S/O NINGAPPA NADELLI
AGE: 35 YEARS, OCC: AGRICULTURE
9. VENKATESH S/O NINGAPPA NANDELLI
AGE: 36 YEARS, OCC: AGRICULTURE
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10. LAKKAPPA S/O BASANNA PEERGAR
AGE: 22 YEARS, OCC: AGRICULTURE
11. VENKATESH S/O BASANNA
AGE: 22 YEARS, OCC: AGRICULTURE
12. NINGAPPA S/O BHIMARAYA HOLBHAVI
AGE: 25 YEARS, OCC: AGRICULTURE
13. HANMANTHRAYA S/O BHIMARAYA
AGE: 24 YEARS, OCC: AGRICULTURE
14. NINGAPPA S/O BHIMARAYA
AGE: 24 YEARS, OCC: AGRICULTURE
ALL ARE R/O HUNISHIOLE VILLAGE
TQ. SHORAPUR, DIST. YADGIR
... APPELLANTS
(BY SRI AVINASH A. UPLOANKAR, ADVOCATE)
AND:-
THE STATE THROUGH
DY. S.P. POLICE STATION, YADGIR
... RESPONDENT
(BY SRI P.S. PATIL, HCGP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT PASSED BY
THE LEARNED DISTRICT AND SESSIONS JUDGE AT YADGIRI IN
SPL.CASE NO.39/2010 FOR CONVICTING THE APPELLANTS BY
ITS JUDGMENT DATED 03.01.2012.
THIS CRL.A HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.12.2018, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal has thrown up certain important legal questions as to whether the failure of the Court to try case and counter case together vitiates the judgment of conviction rendered by the Court? And, whether the witnesses who resile from their examination-in-chief on the ground of compromise with the accused could be prosecuted under Section 195 of IPC?
2. The facts giving rise to the above question are as follows:
On 24.02.2009 in the evening, Shree Revana Siddeshwara Jatra was going on at Hunasihole village, Shorapur Taluk. The complainant (PW.2), one Iragappa, PW.6 and PW.8 were engaged to beat traditional drums during Jatra. After beating the drums, PWs.2, 6 and 8 demanded their wages. Enraged by their demand, the accused persons are alleged to have abused the above witnesses calling out their caste in public and also assaulted them. On the following day i.e., on 25.02.2009 at about 7.00 a.m., PW.2 (the complainant) was 4 dragged out from his house by the accused persons and he was tied to a pole and was abused and assaulted with hands and clubs. The further case of the prosecution is that, when PWs.4, 5 and 7 came to his rescue, the accused persons assaulted them and caused injuries to PWs.2, 4, 5 and 7 and during the occurrence, the accused persons outraged the modesty of PW.4.
3. Based on the complaint lodged by PW.2 on the same day, a case in Crime No.43/2009 was registered against 14 accused persons for the offences punishable under Sections 143, 147, 148, 448, 354, 342, 323, 504, 506 read with Section 149 of IPC and Sections 3(1)(x) and 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'SC/ST (PA) Act') Investigation was taken up. Charge sheet was laid against all the accused persons for the above offences. The accused persons denied the charges.
4. In order to prove its case, the prosecution examined 10 witnesses. Amongst them, PWs.2, 4, 5 and 7 were the injured witnesses. The wound certificates relating to 5 the injuries sustained by them were marked as Exs.P1 to P4. However, in the course of the cross-examination, all these witnesses including PW.8 resiled from their statements made during examination-in-chief.
5. Considering the above material, by the impugned judgment, the learned District and Sessions Judge, Yadgiri found all the accused persons guilty of the offences punishable under Sections 143, 147, 148, 323, 324, 448, 342, 354, 504, 506 read with Section 149 of IPC and Sections 3(1)(x) and 3(1)(xi) of SC/ST (Prevention of Atrocities) Act and accordingly sentenced them for the above offences and imposed maximum punishment of simple imprisonment for two years each and different amount of fine. Feeling aggrieved by the impugned judgment of conviction and order of sentence, all the 14 accused persons have preferred this appeal.
6. I have heard the learned counsel Sri Avinash A. Uploankar for the appellants and the learned High Court Government Pleader for the respondent-State. 6
7. Sri Avinash A. Uploankar, learned counsel for the appellant has raised the following contentions:-
i) In respect of the very same incident, case and counter case were registered in Shorapur police station. The material in this regard was produced by the accused as per Exs.D1, D2 and D3. The witnesses examined by the prosecution have also admitted the registration of the counter case against the complainant and his party. In spite of it, the Court below has failed to hold simultaneous trial in the counter case. The procedure adopted by the Court below is opposed to the judgment rendered by the Hon'ble Supreme Court in the case of Nathilal vs. State of U.P. reported in 1990 SCC (Crl.) 638 therefore, the impugned conviction as well as the sentence imposed by the Court below is vitiated.
ii) The material witnesses examined by the prosecution have resiled from their statements and have turned hostile to the case of the prosecution.
Except eliciting in their cross-examination that on 7 account of compromise with the accused, the witnesses have failed to support the prosecution, none of the witnesses have implicated the accused in the alleged offences and have failed to narrate the specific overt acts committed by each of the accused so as to render them guilty of the offence charged against them. Therefore, there was no material before the trial Court to record conviction against the appellants.
iii) None of the witnesses have stated in their evidence that the petitioner herein hurled caste abuses at the prosecution witnesses. Their evidence even if accepted in its totality does not make out the charges under the provisions of SC/ST PA Act.
iv) Lastly, it is contended that the approach of the Court below in placing reliance on the evidence of PWs.2, 4, 5 and 6 is wholly misplaced. Their evidence does not find corroboration either in medical evidence or in the circumstantial evidence let in by the prosecution. The wound certificates relied on by the prosecution do not mention any 8 injuries. The Medical Officer, who examined the prosecution witnesses is not examined before the Court. His evidence is intentionally suppressed. The Court below has failed to consider all these facts and circumstances which has resulted in failure of justice. Thus he prays for setting aside the impugned judgement and order of sentence and to acquit the appellants of all the charges leveled against them.
8. The learned High Court Government Pleader however has argued in support of the impugned judgment. He contends that the trial Court has not committed any illegality or irregularity in conducting the trial. Even if the case and counter case are not tried together, the same may amount to an irregularity and not an illegality so as to vitiate the trial unless the appellants are able to show that on account of the procedure adopted by the trial Court, grave prejudice has been caused to the appellants and the same has occasioned failure of justice as held by the Full Bench of this Court in State of Karnataka, By Circle Inspector of Police vs. Hosakeri 9 Ningapa, reported in ILR 2012 Karnataka 509. The appellants have not been able to point out any such prejudice and no attempt was made by the appellants before the trial Court to call for the records of the pending case for trial along with the instant case, hence, on the said ground, the conviction recorded by the trial Court cannot be set aside.
9. Insofar as the hostility of the witnesses is concerned, the learned High Court Government Pleader has pointed out that PWs.2, 4, 5 and 6 have unequivocally admitted in the cross-examination that they have entered into a compromise with the accused and solely on account of the said compromise, the witnesses have resiled from their previous statements given under oath. None of the witnesses have denied the incident or the involvement of the accused persons in the above offences and therefore, the trial Court has rightly placed reliance on the chief-examination of these witnesses. Their statements are corroborated by the medical evidence as well as the circumstantial evidence. Therefore, the trial Court was well justified in placing reliance on the said evidence, which clinchingly establish the ingredients of the offences charged 10 against the accused and therefore, there is no reason to interfere with the impugned judgment and consequently he seeks to dismiss the appeal.
10. I have bestowed my anxious thought to the rival submissions made by the parties and have carefully examined the records. Insofar as the first contention urged by the appellants regarding the trial of case and counter case is concerned, there is sufficient material on record to show that during trial, the factum of the registration of the counter case was brought to the notice of the trial Court. It is seen from the records that the accused themselves had produced the certified copy of the FIR in Crime No.44/2009, complaint, and Charge sheet in Crime No.44/2009 which were marked as Exs.D.1 to D3.
11. A reading of the above documents clearly indicate that accused No.3 Manappa had lodged the said complaint against PWs.2, 4, 5 and 6 as well as other persons. After investigation, charge sheet was laid against six accused therein, for the offences under Sections 143, 147, 323, 324, 504, 506, 109 R/w 149 of IPC. But the said incident is alleged 11 to have taken place on 25.02.2009 at 6-30 a.m., in front of the Dyavamma Gudi. It is alleged that the above persons abused the complainant and others and assaulted them with hands and clubs.
12. The allegations in the instant case are that, on the date of the incident at about 7.00 a.m., the complainant was dragged from his house and he, his wife and mother were assaulted by the accused and thereafter he was tied to a pole in front of Dyavamma Gudi and was hurled abuses calling out his caste in public view. There is a difference in the time and place of these two incidents. Therefore, strictly speaking, it cannot be said that FIR in crime No.44/2009 is a counter case arising out of the same incident. Be that as it may, even if it is assumed that above two cases were registered in respect of the same occurrence, yet, the accused having participated in the instant trial, without seeking for simultaneous trial of the counter case, in my view, the accused persons cannot be heard to contend, after suffering a conviction order that the trial in the instant case is vitiated on account of the failure of the Court to try both the case simultaneously. In this regard, it may be useful to 12 refer to the Full Bench decision of this Court in State of Karnataka by Circle Inspector of Police Vs. Hosakeri Ningappa (ILR 2012 Karnataka 509) wherein referring to the law expounded in Nathilal vs. State of Uttar Pradesh in 1990 SCC (Crl.) 638 and Section 465 of Cr.P.C., in paragraph 18 thereof has held:
"18 (a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs. State of U.P. (Supra) and in the case of Sudhir and others vs. State of M.P. (supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceedings and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code."
13. The ratio laid down in the above decision, in my view, squarely applies to the facts of this case. It is not the case of the appellants that they were not aware of the pendency of the alleged counter case. On the other hand, appellants themselves had produced relevant documents in this 13 regard at Exs.D1 to D3. Under the said circumstance, if the counter case had arisen out of the same incident, as now sought to be contended by the learned counsel for the appellants, the appellants could have moved the Court for transfer of the said counter case to the Court where they were being tried. That having not been done, after suffering an order of conviction, in order to render the trial ineffective, the accused must necessarily demonstrate palpable prejudice and apparent failure of justice. Unfortunately, the appellants have not been able to point out any instance of prejudice or failure of justice on account of failure of the trial Court to conduct the trial in both the above cases simultaneously. Therefore, I do not find any merit in the contention urged by the learned counsel for the appellant in this regard. As a result the first contention urged by learned counsel for the appellants is rejected.
14. Coming to the merits of the case, the trial Court has recorded the conviction of the accused persons, mainly on the basis of the evidences of PWs.2, 4, 5 and 6 and other circumstances established in evidence; but the findings 14 recorded by the trial Court are assailed by the appellants/accused mainly on two grounds:
Firstly, it is contended that the material witnesses examined by the prosecution namely PWs.2, 4, 5 and 6 have been treated as hostile by the prosecution and therefore their evidence is liable to be discarded lock, stock and barrel. In other words, the submission of the learned counsel for the appellants is that the testimony of the above witnesses could not have been made the basis for the conviction of the appellants/accused.
The second plank of the argument is that in their examination-in-chief none of the above witnesses have deposed against the appellants and have failed to narrate the specific overt acts alleged against the appellants and therefore there was no material on record to prove the ingredients of the offences charged against the appellants.
15. Both these contentions, in my view, do not merit acceptance. There is no rule of law that the testimony of hostile witnesses is not worthy of credit. As a matter of fact, the expression 'hostile witness' itself is a misnomer. Merely 15 because a witness has failed to support the prosecution case or deviated from the version set up by the prosecution cannot be a reason to dub the witness as hostile witness. 'Evidence' means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matter of fact under enquiry. It encompasses examination-in-chief as well as cross-examination of the concerned witness. Therefore, it necessarily follows that once the witness is subjected to cross-examination either by the party calling him or by the adversary, his evidence does not get washed off the records. It is now well settled that when the witness is subjected to cross-examination and his evidence is not completely discredited or shaken, Court may, after considering the evidence as a whole with due care and caution, accept that part of his evidence which is found creditworthy and act upon it. Of course, in such cases, Court normally looks for corroboration by way of prudence, but by no means, it can be said that the testimony of a hostile witness is liable to be rejected outright as contended by the learned counsel for the appellants. 16
16. The second submission urged by the learned counsel for the appellants that the material witnesses examined by the prosecution namely PWs.2, 4, 5 and 6 have failed to implicate the accused and have failed to narrate the overt acts constituting the offence charged against them is contrary to the material on record and therefore cannot be accepted. This argument appears to have been canvassed by misreading the evidences of the prosecution witnesses. It is one of the cardinal rule of appreciation of evidence that, the evidence of a witness has to be read as a whole and not in isolation. While appreciating the evidence of a witness, the approach of the Court must be whether the evidence read as a whole inspires confidence. Once that impression is formed any infirmity or drawback in the testimony of the witnesses ordinarily recede to the background. Minor discrepancy or inconsistency which does not go to the root of the matter, therefore cannot be considered as fatal to the case of the prosecution, nor can it be taken as a circumstance to doubt the credibility and the veracity of the testimony given before the Court.
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17. As the learned counsel for the appellants has built up his argument on the specious plea that the trial Court has failed to appreciate the evidence of the prosecution witnesses in proper perspective, I have reappreciated the entire material on record and have meticulously scanned the evidences of PWs.2, 4, 5 and 6. On thorough and incisive analysis of the evidences of the above witnesses, I am unable to accept the submission of the learned counsel for the appellants that the trial Court has misread the evidences of prosecution witnesses.
18. PW-2 is the complainant. In his chief examination he has deposed that he belonged to Madiga community. That he knew all the accused persons. The accused belong to Kuruba community. According to the complainant, he was working as a coolie and was also beating drums. On 25.02.2009, 'Revanasiddeshwara Jatra' was held in his village. He had gone to the said Jatra for beating drums. Iragappa, PW-6/Bheemappa and PW-8/ Durgappa had also accompanied him for beating drums. They demanded their wages from accused No.1 and other villagers. At that time, the villagers abused him and assaulted him in front of Revansiddeshwar 18 Gudi. PW-2 has further deposed that, on the next day at about 6.00 a.m. when he was in the house, once again the villagers came to his house and assaulted him. He has further stated that the accused persons who were present before the Court assaulted him and dragged him to "Agasi Katte". He was tied to a pole in front of Dyavamma Gudi. When his wife Mallamma (PW4) came to his rescue, she was also assaulted. They threatened to pour kerosene oil and set him on fire. By then, the police came to that spot and untied him.
19. On the date of his examination-in-chief itself, PW-2 was partly cross-examined and it was elicited that during the Jatra, the entire villagers had gathered. Further cross- examination of PW-2 was deferred at the instance of the counsel for the accused on payment of cost of Rs.1,000/-. The witness was thereafter tendered for cross examination on 23.09.2011. During the cross-examination it was elicited by the defence counsel that PW-2, was not promised any wages by the villagers for beating drums. Further he answered that he did not know as to who tied him to the pole. However, he admitted that a counter complaint was filed against him in 19 crime No.44/2009. When PW-2 was cross-examined by the learned Public Prosecutor, he admitted the suggestion that he has compromised the matter in order to save the accused.
20. Similarly, PW-4/Mallamma, PW-5/Hanumanth, PW- 6/ Bhimappa have also deposed in conformity with the case of the prosecution and in their chief examination have unequivocally stated on oath that during the Jatra when they demanded remuneration for beating drums, there was a quarrel between PW-2 and the accused. These witnesses have consistently stated in their examination-in-chief that on the following day that the accused persons dragged PW-2 from his house and all the accused persons assaulted him with clubs. PW-4 has stated that when she tried to rescue Pw-2, she was also assaulted with hand and has further stated that the accused tied her husband to a pole and he was assaulted with hands and clubs. PWs.5 and 6 have also deposed in consonance with PW-4, but when they were cross-examined by the defence counsel, they failed to implicate the accused and answered that they were beaten and assaulted by the villagers 20 and they were unable to name the persons who assaulted them and tied PW-2 to the pole.
21. On careful scrutiny of the evidences of PWs.2, 4, 5 and 6, what is relevant to be noted is that the statements made by these witnesses, in their examination-in-chief have not been discredited or falsified in the cross examination, with regard to the incident in question and the involvement of the accused persons. Except suggesting to these witnesses that they were not aware as to who assaulted and abused them and who tied PW-2 to the pole, there is no denial of the fact that the incident had not taken place as alleged by the prosecution.
22. On going through the cross-examination of the above witnesses, I do not find that the defence has been able to discredit the testimony of these witnesses in entirety. The presence of the accused in the Jatra and on the following day near Dyavamma Gudi during the occurrence is not denied by the witnesses. On the other hand, PW-2 has reiterated in the cross-examination that he was called by the village elders to beat the drums. In the same breath, it is elicited that accused before the Court were the said village elders. This answer 21 implies that being the village elders, the accused persons had engaged PW-2 and the other witnesses to beat the drums. Further, it is elicited that PW-1 requested the village elders to pay the remuneration which means that the demand for payment of the remuneration was also made with the accused. Therefore, the argument of the learned counsel for the appellants that PW-2 and other witnesses have failed to implicate the accused and have failed to narrate the involvement of the accused in the alleged incident falls to the ground.
23. With regard to the incident, that had taken place on the following day, in the cross-examination, it is elicited that while lodging the complaint, PW-2 had disclosed the names of the persons who tied him to the pole. There is no denial in the cross-examination that such a complaint was not lodged by PW-2. Undisputedly, in this complaint the names of all 14 accused persons find place and specific overt acts committed by them have been narrated. The contents of this complaint as per Ex.P-7, therefore, lends full corroboration to the statement of PW-2, that the accused persons being village elders had 22 committed the above offence as stated by him in his chief cross-examination. This evidence, in my view, cannot be treated as hostile to the prosecution case as contended by the learned counsel for the defence. The very fact, the appellants have taken up a plea that in respect of the same occurrence, they had lodged a counter complaint, presupposes the presence of the appellants/accused at the spot of occurrence. Therefore it cannot be gainsaid that the prosecution has failed to prove the presence of the appellants at the spot of occurrence.
24. On consideration of the entire evidences of PWs.2, 4, 5 and 6, I find that these witnesses have not contradicted the statements made by them in their examination-in-chief, rather they have reiterated the case of the prosecution, which leads to the inevitable conclusion that all the accused persons assaulted and abused PWs.2, 6 and 8 when they demanded their remuneration on 24.02.2009 and on the following day, PW-2 was dragged out of his house and was tied to the pole and was beaten up and abused by the accused/appellants. By the evidences of these witnesses, it is convincingly established that on 25.02.2009, when PW-4 intervened and tried to rescue 23 PW-2, the accused persons assaulted and abused her and also hurled abuses touching the caste of PWs.2, 4, 6 and 8. The prompt lodging of the complaint and the contents of the wound certificate at Exs.P-1 to 4 and the seizure of the rope, MO-1 from the spot of the occurrence, lend further assurance to hold that the incident had taken place as deposed by the above witnesses. These circumstances inspire confidence in the testimonies of PWs.2, 4, 5 and 6. These evidences, in my opinion, are sufficient to prove the ingredients of the offences charged against the accused. Thus, on reconsideration of the entire material on record, for the reasons discussed above, I am of the firm opinion that the prosecution has proved its case beyond reasonable doubt and has successfully brought home the guilt of the accused.
25. The above conclusion get fortified from the further fact that the above witnesses namely, PWs.2, 4, 5 and 6, in the course of their cross-examination by the learned public prosecutor have admitted that they have entered into compromise with the accused to save them from legal punishment. This admission, in my view, completely seals the 24 fate of the appellants. If in fact, the incident had not taken place as contended by the prosecution and the appellants were not guilty of the commission of the above offences, there was absolutely no need for them to enter into compromise with the prosecution witnesses or to prevail upon them to resile from their previous statements. It is important to note that the appellants/accused have not denied the factum of the said compromise. Though, an attempt was made by the appellants/accused to dilute the effect of the examination-in- chief of these witnesses by suggesting their defence, but the very fact that these witnesses have admitted that they have compromised the matter to save the appellants/accused, it leads to the irresistible conclusion that the accused have exerted influence on the prosecution witnesses and have pressurized them to resile from their previous statements solely to save their skin.
26. Having regard to the ground realities and the situation in which the prosecution witnesses were placed, especially, in the light of the fact that hardly five or six houses of the prosecution witnesses belonging to the weaker sections 25 of the society were located in the village dominated by the appellants, there is nothing surprising that these witnesses have buckled under the pressure of the dominant community of the appellants/accused. Under the said circumstance, whatever compromise that has been brought about by the accused persons by prevailing upon the prosecution witnesses, in my view, cannot militate against the case of the prosecution, rather the said compromise tends to expose the vulnerability of the prosecution witnesses being the members of the weaker sections of the society for whose benefit and welfare the provisions of Karnataka Scheduled Castes and Scheduled Tribes (PA) Act have been enacted.
27. Needless to say, the very statement of objects and reasons of the said SC/ST (PA) Act graphically describes the social conditions in which the members of the Scheduled Castes are placed. Legislature itself has taken note of the fact that when members of the Scheduled Castes assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and 26 terrorize them. The present case, in my view, is a classic example which has brought to light a disturbing state of affairs as to how the members of the dominant community could silence the voice of the prosecution witnesses, by luring them to enter into a compromise. The mode adopted by the appellants/accused, in my view, is highly despicable and reprehensible which deserves to be condemned in strongest terms. It is therefore the duty of the Court in such circumstance to effectuate the purpose and object of the Act. The enactment is fundamentally intended to protect the rights of the members of the Scheduled Castes and Scheduled Tribes and not to defeat their rights by encouraging illegal and unethical compromise. In the fact situation of the instant case, it would be a travesty of justice to acquit the accused, based on the alleged compromise. Therefore on over all consideration of the facts and circumstances of the case, I have no hesitation to hold that alleged compromise is illegal and amounts to unlawful interference in the administration of the justice and therefore cannot be accepted. Appellants who were facing trial before the Court had no business whatsoever to enter into 27 compromise with the prosecution witnesses and to pressurize them to resile from their previous statements.
28. Nonetheless, on analysis of the entire evidence of the prosecution witnesses, I have come to a clear conclusion that the circumstance brought out in the cross examination of the above witnesses do not have the effect of whittling down the statements made by them in their examination-in-chief. As a result, I hold that the prosecution has successfully proved the essential facts constituting the offences charged against accused.
29. The trial Court has convicted the appellants for the offences punishable under Sections 143, 147, 148, 323, 324, 448, 342, 354, 504, 506 read with section 149 of IPC and section 3(1)(x) and 3(1)(xi) of the SC/ST (PA) Act. But on reappreciation of the material on record, I do not find that the evidence produced by the prosecution is sufficient to prove the charges under sections 324, 354 and 506 of IPC and section 3(1)(xi) of the SC/ST (PA) Act. The specific case of the prosecution is that during the occurrence, accused persons outraged the modesty of PW-4. PW-4 nowhere stated in her 28 evidence that the accused persons outraged her modesty or did anything with a view to outrage her modesty. Even the other witnesses examined by the witnesses have not deposed anything regarding ingredients of the said offence. As such the conviction of the accused for the offence punishable under section 354 of IPC and section 3(1)(xi) of the SC/ST (PA) Act, cannot be sustained.
30. Likewise, there is no evidence in proof of the ingredients of the offences punishable under Sections 324 and 506 of IPC. Eventhough, it is alleged that all the accused persons were armed with deadly weapons and inflicted injuries on the prosecution witnesses, prosecution has produced only one club namely MO-1. There is no specific evidence as to which of the accused inflicted injury on the prosecution witness by assault with the said club. The wound certificate relied on by the prosecution at Ex.P1 to P4 also do not indicate any grievous injury to any one of the witnesses. Therefore, in my view, provision of Section 324 is also not attracted to the facts of the case. However, as discussed in the preceding part of this judgment, the evidence adduced by the prosecution clinchingly 29 establish the ingredients of the offences under sections 143, 147, 323, 448, 342, 504 read with section 149 of IPC and Section 3(1)(x) of the SC/ST (PA) Act. As a result, I hold that the accused are liable to be convicted for the offences under Sections 143, 147, 323, 448, 342, 504 read with section 149 of IPC and Section 3(1)(x) of the SC/ST (PA) Act.
31. While recording the conviction of the accused for the above offences, the trial Court has also directed action against PW-2 and PW-3 under Section 195 of IPC for giving false evidence. Insofar as PW-3 is concerned, the records clearly indicate that PW-3 has committed perjury on the face of the records. In his evidence, he has categorically stated that he has given false evidence before the Court on 09.09.2011, therefore, the direction issued by the trial Court for registration of complaint against PW-3 for the offences under section 195 of IPC, does not warrant any interference by this Court. But so far as PW-2 is concerned, the trial Court has relied on his evidence and has found the accused guilty based on the evidence of PW-2. Eventhough, he has been treated as hostile yet, his evidence has been accepted by the trial Court. On 30 reappreciation of his evidence, I have also come to the conclusion that his evidence is reliable and trustworthy. As discussed in the body of this judgment PW-2 has wavered in his evidence only because of the pressure exerted by the appellants/accused. Therefore, he cannot be branded as a false witness. He has not committed any perjury nor has given any false or fabricated evidence with intent to procure conviction of the accused. On the other hand, he has resiled from his previous statement only because of the alleged compromise said to have been entered into between him and the accused. Therefore, the material on record does not make out the ingredients of the offence under section 195 of IPC insofar as PW-2 is concerned and therefore the direction issued by the learned trial Judge to initiate action against PW-2 for the offence punishable under section 195 of IPC cannot be sustained. Hence the said direction is hereby set aside.
32. Coming to the sentence imposed by the trial Court, the trial Court has sentenced the accused for imprisonment of two years for the offence punishable under Section 3(1)(x) of SC/ST (PA) Act; simple imprisonment of two years for the 31 offence punishable under section 504 of IPC; simple imprisonment of one year for the offence punishable under section 342, 448 and 323 read with section 149 of IPC and two years simple imprisonment for the offence punishable under section 147 read with section 149 of IPC; and simple imprisonment of six months for the offence punishable under section 143 read with section 149 of IPC.
33. The facts proved by the prosecution demonstrate that in a public display of their power and dominance and with a view to keep PW-2 and other prosecution witnesses, members of the Scheduled Castes, in perpetual subjugation, the appellants/accused tied PW-2 to a pole in a public place and he was beaten up and roughed up. This act of the accused is no less atrocious and serious than any other heinous offence as it amounts to a direct affront to the Constitution of India and the provisions of SC/ST (PA) Act. No doubt, the accused do not have any criminal antecedents, but that does not lessen the gravity of the offence committed by the accused especially when the accused have been dared to assault the wife of PW-2 and other members of her community when they came to the 32 rescue of PW-2. Therefore, taking in consideration, all these facts and circumstances, I am of the opinion that it would serve the ends of justice that a minimum sentence of imprisonment of one year is imposed on all the accused persons in addition to fine. The sentence imposed on the accused should also serve as a deterrent.
34. Accordingly, I proceed to pass the following order:
Criminal Appeal No.3522/2012 is partly allowed. The conviction of the appellants/accused and the consequent sentence imposed on them for the offences punishable under section 324, 354, 506 of IPC and section 3(1)(xi) of the SC/ST (PA) Act is set aside. The appellants/accused are acquitted of the said charges.
Conviction of the appellants/accused for the offences punishable under sections 143, 147, 323, 448, 342, 504 read with section 149 of IPC and section 3 (1)(x) of SC/ST (PA) Act is sustained. In modification of the sentence awarded by the trial Court, the appellants/accused are sentenced to simple 33 imprisonment of one year for the offence punishable under section 3 (1)(x) of SC/ST (PA) Act.
For the offences punishable under sections 143, 147, 323, 448, 342, 504 read with section 149 of IPC, each of the accused is sentenced to a simple imprisonment for six months and a fine of Rs.1,000/- for each of the above offence. The substantive sentences of imprisonment shall run concurrently. The appellant/accused are entitled to set off for the period of custody already undergone by them in terms of section 428 of Cr.P.C. The bail bonds of the appellants/accused shall stand cancelled and they shall surrender before the trial Court to serve the sentence.
Sd/-
JUDGE LG/RSP/VNR