Karnataka High Court
State Of Karnataka vs Harisha Poojary on 15 February, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 1100 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 1100 OF 2014
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR,
BY ASST. SUPERINTENDENT OF POLICE,
PUTTUR SUB DIVISION, PUTTUR,
D.K, MANGALORE-574201.
...APPELLANT
(BY SMT. K.P.YASHODHA, ADVOCATE)
AND:
HARISHA POOJARY,
AGED ABOUT 40 YEARS,
S/O. DHARMANNA POOJARY,
R/AT. KANILA HOUSE,
NITTADE VILLAGE,
BELTHANGADY TALUK-574214.
Digitally signed by
NAGARATHNA M ...RESPONDENT
Location: HIGH
COURT OF
(BY SRI. PRAKASHA HEGDE K.,ADVOCATE)
KARNATAKA
THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE
STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 29.09.2014 PASSED BY
THE II ADDL. DIST. AND SESSIONS (SPECIAL) JUDGE, D.K.,
MANGALORE IN SPL.C.NO.7/2012-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 341, 354,
506 OF IPC. AND SECS. 3(1)(XI) OF SC/ST (POA) ACT 1989.
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CRL.A No. 1100 of 2014
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment passed by II Additional District and Sessions (Special) Judge, D.K., Mangalore in Special Case No.7/2012 dated 29.09.2014, wherein the learned Sessions Judge acquitted the respondent/accused for the offences punishable under Sections 341, 354, 506 of Indian Penal Code ( for short hereinafter referred to as IPC) and Sections 3(1)(XI) of Scheduled Castes and Scheduled Tribes (Prevention of Corruption) Act, 1989 (for short hereinafter referred to as 'SC/ST (POA) Act').
2. In brief the case of the prosecution is that on 23.11.2011 at about 02:30 p.m., the victim/PW.1 while she was going towards Venoor from her house near a place called 'Mura' the accused - Harish Poojary stopped the victim and forcibly pulled her and touched her body and tried to outrage her modesty and at that time, she -3- CRL.A No. 1100 of 2014 screamed for help, then the accused left her and while she was running away, the accused threatened the victim that if she informed the same to anybody, he will take away her life. The victim came back to the house and informed her husband about the incident. It is also alleged that she belongs to Scheduled Caste. Therefore, in the evening she lodged the complaint before Venoor Police station. The Deputy Superintendent of Police investigated the matter and filed the charge sheet against the accused for the offences stated above.
3. In order to prove its case, the prosecution examined eight witnesses as PWs.1 to 8 and got marked six documents as Exs.P1 to P6. After recording the statement of accused under Section 313 Code of Criminal Procedure (for short hereinafter referred to as 'Cr.P.C.') and hearing the arguments, the learned Sessions Judge, acquitted the accused. Being aggrieved by the same, the State has filed this appeal. -4- CRL.A No. 1100 of 2014
4. Heard Smt. K.P.Yashodha, learned High Court Government Pleader for appellant/State and Sri. Prakasha Hegde K, learned counsel for the respondent/accused.
5. Learned HCGP argued that the impugned judgment of acquittal is illegal, erroneous and opposed to facts and law. The reasons assigned by the learned Sessions Judge while acquitting the accused are not justifiable one. The Trial Court failed to appreciate the evidence of Victim/PW.1 who is only the sole eye witness to the incident. PW.2/Sundara is the husband of PW.1 and PW.3/Gopi is the sister of PW.2. Both these witnesses have supported the case of the prosecution and their evidence corroborates with the evidence of other prosecution witnesses. PW.4/Sanjeeva is the panch witness for mahazar. The Trial Court without considering their evidence and appreciating their evidence, wrongly acquitted the accused. Hence, the inference drawn by the Trial Court is not correct. -5- CRL.A No. 1100 of 2014 Absolutely there is no reasons to disbelieve the evidence of PWs.1 and 2. Therefore, the judgment of acquittal passed by the learned Sessions Judge is illegal and erroneous and needs interference by this Court. With these arguments, learned HCGP prayed to allow the appeal and convict the accused.
6. Against this, learned counsel for the respondent argued that the learned Sessions Judge has considered the evidence in proper perspective and has given reasons in detail for acquitting the accused. The evidence of PW.1/victim differs from the averments made in the written complaint and are contrary and inconsistent with each other. The complainant/PW.1 goes on improving her evidence and keep on changing her version with regard to the alleged facts of the incident. PWs.2 and 3 are admittedly the relatives of victim and they are interested witnesses. The other witnesses admit that PW-1/victim belongs to Scheduled Caste and they have stated in their evidence that, -6- CRL.A No. 1100 of 2014 before lodging the complaint, PWs.1 and 2 went to Dalith Sangharsh Samithi and consulted the members of Dalith Sangharsh Samithi and thereafter the victim lodged the complaint belatedly. There is no evidence to show that who has written the said complaint. The spot panchanama is in variance with the oral evidence of prosecution witnesses. PW.1 states that the width of the place where the alleged incident took place is measuring only one feet, one witness stated that there is a two feet space and the other witness stated that there is a four feet space and panchanama shows that there is a space measuring five feet at the place where incident took place. The prosecution witnesses states that there are coconut trees, but in panchanama there is no mention about existence of coconut trees and the investigating officer also stated that there is no such trees in and around the scene of offence place. Learned counsel argued that both PW2/husband of PW.1 and accused are doing mason work. As the accused was -7- CRL.A No. 1100 of 2014 getting much work than PW.2/husband of victim, in order to take revenge, by misusing his wife and caste, PWs.1 and 2 lodged a false complaint against the accused. Learned Sessions Judge after considering all the evidence has rightly come to the conclusion that the prosecution has failed to prove the guilt of the accused and given benefit of doubt to the accused and acquitted him. In support of his arguments, learned counsel relied on the decision of Hon'ble Supreme Court in the case of State of Rajasthan Vs. Raja Ram reported in (2003) 8 SCC 180 wherein the Apex Court has discussed with regard to the scope and interference by the Appellate Court while considering the judgment of acquittal. Hence, he prayed to dismiss the appeal.
7. I have perused the judgment of acquittal and also evidence on record.
8. The learned Sessions Judge after considering the evidence on record found that the evidence of PW.1 -8- CRL.A No. 1100 of 2014 creates doubt about the alleged incident. Further there is also discrepancy in narrating the nature of the incident. PW.4/Sanjeeva who is the panch witness to the incident also belongs to the same caste of PW.1 who is also an active member of Dalith Sangharsh Samithi. The other witnesses are official witnesses. Therefore, the Trial Court found that there is discrepancy in the oral evidence of prosecution witnesses and there is a doubt about the place of occurrence of the incident and there is discrepancy in the evidence of panch witnesses with regard to the place where the alleged incident took place. Therefore, the learned Sessions Judge came to the conclusion that the defence of the accused is probable one and given benefit of doubt and acquitted the accused.
9. I have also perused the evidence and Judgment of acquittal.
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10. PW.1/Smt. Shobha/victim who lodged the complaint deposed that on 23.11.2011 at about 2:15 p.m. while she was going to Venoor market, when she came near the place - Mura, the accused stopped her, touched her body and tried to outrage her modesty and when she screamed for help, the accused left her and threatened her to take away her life, if she disclose this fact to anybody. Then PW.1 out of fear, ran towards the house of her sister/in/law - PW.3. As per the advice of PW.3, the victim/PW1 informed the same to her husband/PW.2 over phone and when he came to his sister's house, PW.1 informed him about the alleged incident. PW.1 states that she was taken to Belthangady and there the complaint was written and then they submitted the complaint to Venoor Police Station. Her evidence before the Court regarding the nature of the incident totally differs from the evidence of other witnesses. In the cross-examination, she has admitted that both accused and her husband were doing
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CRL.A No. 1100 of 2014mason work. She has deposed that along with her husband, only five to six persons are working, but a group of 10-15 persons do mason work with accused. All of them working in the same area. PW.1 denies the suggestion that her husband and accused work together in the same locality. She has denied the suggestion that both accused and her husband are having the professional rivalry. The averments made in Ex.P1/complaint and her oral evidence is different regarding the nature of the incident. PW.1 states that the spot of the incident is a pathway and it is about one feet wide. She has denied that there is a possibility of dashing to each other, if two persons came at a time in opposite direction in the said pathway. She has denied the suggestion that accused not tried to outrage her modesty. PW.1 has stated that she has also informed Dalitha Sangharsh Samiti about the incident, before going to the Venoor police station and she met the office Bearers of Dalitha Sangharsh Samiti before
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CRL.A No. 1100 of 2014lodging the complaint. She has stated that on the night when the incident took place, the police have come to the spot and on the next day also she had gone to the police station. She denied the suggestion that the police were at the spot on the night for about half an hour on the day of incident. She has not whispered anything regarding showing the place of incident to the police. Therefore, who has shown the place of incident is also doubtful.
11. PW.2/Sundara is the husband of PW.1 states that after receiving the phone call from his sister, he went to her house. He states that the width of the place lane where the incident occurred is measuring five feet. He does not know as to who has written the complaint.
12. PW.3/Smt. Gopi who is the sister of PW.2 stated that PW.1 came to her house and informed regarding the incident that accused stopped her on the way and tried to outrage her modesty and they all went
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CRL.A No. 1100 of 2014to Belthangady. In her cross-examination, she has stated that she came to know about the incident only by complainant and thus it is clear that she is a hearsay witness.
13. PW.4/Sanjeeva is the active member of Dalitha Sangarsh Samiti and he states that there is a coconut garden situated, next to the place of incident and the width of the pathway where the incident stated to have been taken place is about four feet. But there is no mention about coconut trees on the either side of the place of incident, as per the panchanama. So it appears that this witness does not know about the alleged incident.
14. PW.5/Smt. Kusuma Kumari, Assistant Commissioner, has issued a caste certificate as per Ex.P4 of PW.1 to show that she belongs to Scheduled Caste and accused belongs to Billava Caste. In her cross-examination she has stated that she has issued
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CRL.A No. 1100 of 2014the caste certificate to PW.1 on the basis of report of revenue inspector but the said report is not enclosed.
15. PW.6/Sanggaiah kale, Police Constable who has sent the FIR to the Court on the next date afternoon on 24.11.2011. There is a delay in sending the FIR to the Court. Same is not explained.
16. PW.7/Vasudeva Nayak, Assistant Commissioner of Police has received the written complaint given by PW.1 and registered the same in Cr.No.99/2011. He has not enquired as to who has lodged the complaint and who has written the complaint.
17. PW.8/Nagaraju, Deputy Superintendent of Police has investigated the case. The evidence of PW.8 regarding the place of incident is totally contradictory and inconsistent with other witnesses. He states that he does not know the distance between Venoor and the alleged place of incident and he states that the width of
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CRL.A No. 1100 of 2014the place where the incident took place is two feet and he states that there were no coconut trees in and around the said place. This itself shows that he is not aware of place of offence.
18. On entire reading of the prosecution evidence, it is evident that both accused and the husband of PW.1 are working as mason and accused is having a group of 10-15 workers for doing mason work with him. It is also evident that there is a delay in lodging the complaint and after consultation with Dalith Sangarsh Samithi, the complaint is lodged, but who has written the complaint is not forthcoming from the evidence of witnesses. PW.4 who is a panch witness who has signed the mahazar does not know what is written in the mahazar and he has stated that there are coconut garden near the place of incident, but on perusal of mahazar/Ex.P2 on both sides of the alleged place of incident, there is no mention of any coconut trees or garden land. Therefore, there is no
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CRL.A No. 1100 of 2014corroboration in the evidence of PW.4 and the mahazar. On the other hand, he has stated that he has signed the mahazar in the police station. This itself creates doubt about the investigation done by the police. PW.1 stated that the pathway where the incident took place is about one feet width, PW.2 states it is about five feet, whereas PW.4 states it is about four feet and in the mahazar the width of the pathway is mentioned as two feet. Therefore, there is inconsistency and contradictory in the evidence of witnesses regarding the place of incident and they have all stated different versions regarding the width of the pathway where the incident took place. PWs.1 and 2 does not know who has written the complaint. Therefore, from the perusal of evidence of witnesses, it is evident that they are trying to falsely implicate the accused due to professional rivalry between husband of PW.1 and accused, that possibility also cannot be ruled out. It is also evident from the evidence of PW.1 that after the occurrence of
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CRL.A No. 1100 of 2014the alleged incident, she went to the house of PW.3 and then she informed her husband over a phone about the same. But Ex.P1/complaint discloses that complainant came to her house and then informed her husband in her house. There is discrepancies in the evidence and written complaint.
19. The learned counsel for the respondent has referred to the decision of Hon'ble Supreme Court in the case of State of Rajasthan supra and referred to paragraph No.7 which reads as under:
7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his
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innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736 : JT (2002) 3 SC 387] ) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC
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CRL.A No. 1100 of 2014(Cri) 1033] , Ramesh Babulal Doshi v. State of Gujarat [(1996) 9 SCC 225 : 1996 SCC (Cri) 972] and Jaswant Singh v. State of Haryana [(2000) 4 SCC 484 : 2000 SCC (Cri) 991 : JT (2000) 4 SC 114] .
20. Therefore, in view of the discussions made above and on considering the entire evidence of prosecution witnesses and the judgment of Trial Court, in my considered view the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the learned Sessions Judge has rightly given benefit of doubt to the accused. It is settled principle of law that if two views are possible from the evidence of prosecution witnesses, the view favourable to the accused will have to be accepted. This Court being appellate Court cannot interfere in the judgment of acquittal passed by the Sessions Court unless the judgment of acquittal is illegal, perverse, erroneous and the judgment resulted in miscarriage of justice.
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CRL.A No. 1100 of 2014
21. The Hon'ble Supreme Court in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], while dealing with the power of the appellate court in interfering with the judgment of acquittal held that unless the judgment of trial court is perverse, illegal and not based on sound principles regarding appreciation of evidence, the appellate court shall not interfere in the judgment of acquittal. Because the judgment of acquittal gives double presumption of innocence to the accused.
22. In view of the principles stated by the Hon'ble Supreme Court in the decision referred above and on re-assessing the entire evidence of prosecution witnesses, I am of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The learned Sessions Judge has considered the entire evidence meticulously and has come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all
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CRL.A No. 1100 of 2014reasonable doubt and acquitted the accused by giving benefit of doubt. I find that the judgment of acquittal passed by the trial court is neither illegal, perverse, erroneous nor the judgment has resulted in miscarriage of justice. Absolutely, there are no grounds to interfere in the judgment of acquittal. The appeal being devoid of merit is liable to be dismissed.
23. Accordingly, I pass the following:
ORDER
1. The appeal filed by the State-appellant under section 378(1) and (3) Cr.P.C. is hereby dismissed.
2. Consequently, the judgment and order of acquittal dated 29.09.2014 passed in Spl.C.No.7/2012 by learned II Additional District and Sessions (Special) Judge, D.K. Mangalore, against the respondent/accused is hereby confirmed.
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CRL.A No. 1100 of 2014
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. No order as to costs.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 37