Bangalore District Court
Vijayanagar Ps vs A1-Hemalatha on 3 January, 2024
KABC010012112018
IN THE COURT OF THE LXX ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 3rd day of January, 2024.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXIX Addl. City Civil and Sessions Judge and
Special Judge, Bengaluru.
Spl.Case.No.31/2018
COMPLAINANT: STATE
Represented by
Vijayanagar Police Station,
Bengaluru.
(Rep.by Special Public Prosecutor).
-V/s-
ACCUSED : 1. Hemalatha W/o Rajesh
Aged 32 years,
2. Rajesh @ Raju S/o Hunasappa
Aged 34 years,
3. Jayamma W/o Lingappa
Aged 50 years,
4. Bhagyalakshmi @ Bhagya
W/o Narasimhamurthy,
Aged 35 years,
All are R/at No.15, 16th Cross,
2nd Block, K.S.B Quarters,
Vijayanagar, Bengaluru-40.
(Rep.by Sri. BRN., Advocate)
Spl.C.31/2018
2
1. Date of commission of offence : 16.09.2017
2. Date of report of Offence 16.09.2017
3. Name of the Complainant : Sri. Nanjamma
4. Date of commencement of : 04.01.2019
recording of evidence
5. Date of closing of evidence : 28.11.2023
6. Offences Complained are : U/s. 504, 506 r/w.34 of IPC
& Sec.3(1)(r), 3(1)(s) of
SC/ST(POA) Act, 1989.
7. Opinion of the Judge : Charges not proved
JUDGMENT
This case is registered on the basis of charge sheet submitted by ACP Vijayanagar Sub Division against the accused persons for the offences punishable under Section 504, 506 r/w.34 of IPC & Sec.3(1)(r), 3(1)(s) of SC/ST(POA) Act, 1989.
2. The case of the prosecution is that accused Nos.1 to 4, belonging to Vokkaliga community, with common intention, on 16.09.2017, at 2.00 p.m, Public Road, near slum board quarters, 16th cross, Vijayanagar, Bengaluru, on the subject matter of cheque bounce case, knowing very well that the complainant belongs to Scheduled Caste, i.e., Handi Jogi community, have abused the complainant in Spl.C.31/2018 3 foul and filthy language, in the name of caste and gave life threats to her and insulted her in the name of caste, and thereby committed offences punishable u/s 504, 506 R/w 34 of IPC and u/s 3(1)
(r) (s) of SC and ST (Prevention of Atrocities) Act. Accordingly victim lodged complaint before the jurisdictional Vijayanagar Police. On the basis of complaint, the investigating officer on conclusion has filed charge sheet.
3. On service of the same, the accused persons have appeared before this Court and they got enlarged on bail. The charge sheet copies were furnished to the accused as contemplated under Section 207 of Cr.P.C. Heard before the charge. As there was sufficient materials available, my learned predecessor in office framed charge for the above offences, read over and explained to the accused in vernacular language and they pleaded not guilty and claimed to be tried.
Spl.C.31/2018 4
4. At trail, the prosecution got examined PWs-1 to 11 and got exhibited Exs.P.1 to 8 and closed its side. The statement of the accused u/sec 313 recorded, read over and explained to the accused persons in vernacular language and the accused, denied all the incriminating evidence and they did not choose to lead defence evidence on their behalf.
5. Heard the arguments and perused the materials available on record.
6. The following points would arise for the determination of this Court are as follows;
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that accused No.1 to 4, belonging to Vokkaliga community, with common intention, on 16.09.2017, at 2.00 p.m, Public Road, near slum board quarters, 16th cross, Vijayanagar, Bengaluru, on the subject matter of cheque bounce case have intentionally insulted and thereby gave provocation to C.W.1 intending that such provocation will cause the said C.W.1 to break the public peace and thereby accused have committed offence punishable u/s 504 r/w.34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, accused Nos.1 to 4 in furtherance of their common intention have Spl.C.31/2018 5 committed criminal intimidation by threatening the C.W.1 with injury to his person with intent to cause alarm to him and thereby accused have committed offence punishable u/s 506 r/w.34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, accused Nos.1 to 4 in furtherance of their common intention accused persons not being the members of SC/ST intentionally insulted/intimidated as C.W.1 with intent to humiliate the C.W.1 who belongs to schedule tribe (Valmiki) community in a place within the public view and thereby accused has committed offences punishable u/s 3(1)(r) of SC/ST (POA) Act?
4. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, accused Nos.1 to 4 in furtherance of their common intention accused persons not being the members of SC/ST have abused C.W.1 who belongs to schedule tribe by taking the name of his caste in a place within the public view and thereby accused have committed offences punishable u/s 3(1)(s) of SC/ST (POA) Act?
5. What Order?
7. My findings to the above points are as follows; Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Spl.C.31/2018 6 Point No.4 : In the Negative Point No.5 : As per final order for the following;
REASONS
8. POINT No.1 and 2: The prosecution to prove the ingredients of offences punishable u/Sec.504, 506 r/w.34 of IPC, as the facts are interwoven both these points for consideration are taken up for answering together.
9. The complainant in the complaint lodged on 16.9.2017 before the jurisdictional police has handed over written submission that she had account in HDFC bank of Vijayanagar branch which were lost and those cheques being missing she had given petition. After few months the cheques were presented by the accused No.1 for amount of Rs.4 lakhs and the accused No.1 alongwith her elder sister accused No.3 used to threaten she will lodge complaint. The complainant is having doubt when the complainant was occupying the house of accused No.1 on lease the same cheque would have been taken away by the accused and misused the same.
10. In fact the complainant pleaded before the accused No.1 not to misuse such cheques but even then Spl.C.31/2018 7 on the same day the cheque bounce case already filed by the accused No.1, summons was issued and complainant went to attend court, at about 2.00 p.m when the complainant returned back to the house accused came to her house and abused the complainant in filthy language and gave life threat and even abused the caste of the complainant. Accordingly complainant was forced to lodge complaint.
11. The prosecution basically relies on the evidence of complainant Nanjamma who deposed in her examination-in-chief that she know the accused and other charge sheet witnesses 5 to 9 who are all residing near her house, CWs.10 and 11 are her brothers, they are all belonging to schedule caste, accused persons are belonging to vokkaliga gowdas and accused are related to each other. They know the the caste of the complainant.
12. The complainant deposed that on 16.9.2017 accused No.1 who had filed cheque bounce case along with her elder sister Jayalakshmi came to to the house of the complainant concerning with regard to vehicle loan the complainant had vehicle loan of her younger brother Spl.C.31/2018 8 she had taken cheque book and she had signed 6 cheques and those 6 cheques were missing from her cheque book. Accordingly she even reported the same to the HDFC bank, Vijayanagar branch by giving application.
13. The complainant deposed she came to know accused No.1 misused her signed cheque and presented for Rs.4 lakhs which came to be bounced and as such had lodged cheque bounce case and the summons issued on 16.9.2017, she attended the court. After returning from the court, first accused came in the afternoon at about 2.00 p.m. the complainant was questioned how complainant can complain that the cheques were stolen and in that regard accused No.1 abused the complainant in filthy language and also abused by taking the caste of the complainant being of lower caste 'madiga' and even threatened as son-in-law of the first accused comes, she will instruct to kill the victim. Accordingly complainant went to the police station and lodged complaint as per Ex.P.1. after that police have drawn spot Mahazar. This witness deposes CD has been handed over to the Investigating Officer in Spl.C.31/2018 9 which there is abusive words used is had but no person is visible.
14. In the cross-examination of P.W.1 she admits about the knowledge about the accused persons since her birth and this witness admits after this so called incident they never used to talk, afterwards. This PW-1, witness in cross examination denies she did borrowed for the marriage of her brother Rs.4 lakhs. This witness admits about cheque bounce case being filed by the accused No.1. This witness admits she did admitted in court that she had not given complaint before the police as questioned by the jurisdictional Magistrate. This witness deposes she does not remember the date on which she reported about the theft of her cheques. This witness deposes she does not know the contents of her complaint which has been written by the police. This witness admits she had signed Exs.P.1 and 2 in police station only. This witness admits she had preferred appeal against the judgment in NI Act case of ACMM. This witness denies other suggestions.
15. The prosecution did examined the P.W.2 who is a coolie worker deposed on 16.9.2018 in slum quarters Spl.C.31/2018 10 ward office after the complainant and accused had quarreled, in that regard police have came 12 days after the incident, drew Mahazar as per Ex.P.2, he signed it. This witness in his cross-examination admits he does not know reading or writing and he does not know the contents of Ex.P.2. This witness deposes he had signed Ex.P.2 near the house of the complainant. This witness deposes he does not know the contents of the Mahazar and for what purpose it has been drawn is not within his knowledge.
16. The P.W.3 Nethravathi is another so called eye witness who deposes on 16.9.2017 she accompanied the complainant to court when they returned back when Raju was present near their house accused came there started altercation with the complainant and abused her as "ಕಮಮಮಮ ಜತ ಸಳ ಮಮಡ" and even gave life threat and this witness also deposes about the CD presented in this court wherein the video has been observed by the victim. This witness deposes she cannot hear the abusive words used in the video and in her cross- examination deposes the victim is none other than her husband's elder sister. This witness denies other Spl.C.31/2018 11 suggestions made by the learned counsel for the accused.
17. The P.W.4 Radha who is the person who recorded the video. This witness in her examination-in- chief deposes on 16.9.2017 when she was in the house Smt Nanjamma came back from the court concerning cheque bounce case being attended in the CMM Court. After that she heard abusive words used by the accused. This witness PW-4, deposes about after attending from the court by C.W.1 on that day of incident, there was an altercation going on, abusive words used by accused to abuse the victim, this witness recorded the same in her husband's phone. This witness identifies the 7 videos which were played in the court. This witness deposes only abusive words were able to be heard, but not video visible. This witness in her cross-examination deposes she had studied SSLC. This witness deposes she had signed one document in police station and another near the house. This witness denies other suggestions made by learned counsel for the accused.
18. The P.W.5 Ramesh.P is the Assistant Manager of HDFC Bank who had placed the endorsement after Spl.C.31/2018 12 Ex.P.4 being issued by the bank with regard to "stop payment" issued in the year 2016. In his cross- examination denies suggestion. In the cross-examination of this P.W.5 specifically deposes on 5.12.2016 cheque number 5 has been given by the complainant to accused No.1 for repayment of the loan, this witness deposes "may be". This witness denies the suggestion he has given Ex.P.4 concocted to help the complainant.
19. P.W.7 is another witness namely brother of the complainant who deposes in consonance with the complainant case. This witness deposes he got video to be down loaded to CD and handed over to the ACP. In the evidence of P.W.7 in his cross-examination deposes he is working as Real Estate Office boy. This witness admits adjacent residents shown as witnesses to the incident. This witness admits he had married 2 persons. This witness denies for his marriage loan has been obtained by the victim from accused No.1. this witness admits there is order made by the court about payment is to be made to the accused No.1. this witness denies both of them in collusion had got registered a false case. The P.W.6 is the Investigating Officer who registered crime.
Spl.C.31/2018 13 P.W.8 Investigating Officer who conducted part of the investigation. The P.W.9 is another so called eye witness and the P.W.10 is the Investigating Officer who concluded the investigation, the P.W.11 is the person who is another called eye witness to the incident.
20. In the evidence of P.W.9 this witness deposes on 16.9.2017 she had gone to Vijayanagar at about 2.00 p.m in 16th cross, one lady was abused by 3 persons namely 2 ladies and one male person and the victim was spit on her face and she has been abused as "ಸಳ ಮಮಡ ಕಕಳ ಜತ ಮಮಡ " one Jayamma used to threaten that when her brother-in-law will come to house this victim will not be spared. This witness identifies the accused persons. In the cross-examination of this witness deposes on that day of incident she had come from Vidyaranyapura to see her husband who was residing there, but she cannot given the address of her husband work place. This witness deposes she had come in a bus by leaving Vidyaranyapura at about 11.00 a.m. when incident happened. This witness deposes she used to come to visit her husband 4 to 5 times in a month. This witness deposes the stop is at a distance of 1 km Spl.C.31/2018 14 from Vijayanagar bus stand. This witness deposes neighbour's were all present in the spot and the dispute with regard to cheque bounce. This witness deposes on that date of incident itself, complainant informed her. This witness deposes she was not knowing the complainant before the incident. This witness deposes she was present in the spot upto 4.00 p.m. This witness denies other suggestions made by the learned counsel for the accused.
21. The P.W.11 is Govindaraju who deposes that the brother of the complainant is known to him who used to get contract workers for Sriram, on that day he went there to meet Sriram younger brother of the victim. This witness deposes there were ladies, one male, among them the male and 2 ladies were abusing another lady, she was weeping and she has been abused by taking her caste. She has been abused as "ಬವರರ ಮಮಡ" and another lady was abusing as "chappal stitching caste lady" and they even threatened with dire consequence and another lady threatened the victim that as soon as his son-in-law come's, she will see the victim is killed. The public gathered there pacified the dispute and he Spl.C.31/2018 15 gave statement before the police. In his cross- examination this witness deposes he knows the brother of the victim since 7 to 8 years. This witness denies the suggestions made by the learned counsel for the accused. This witness gave the particulars when he went to Sriram near the recreation club the sriram was not available as such she went to his house, as shown by the public adjacent to the premises. This witness deposes on that day he went in two wheeler in search of Sriram but this witness admits he does not know the complainant personally. He had parked two wheeler in parking area and gone to the house of Sriram by walk. This witness pleads ignorance about CD being given by the complainant. This witness deposes after 1 or 2 days he had given the statement before the police. This witness denies other suggestions.
22. The Investigating Officer who registered crime deposed in consonance with the registration of crime as per Ex.P.5. The Investigating Officer who obtained order of the DCP and conducted part of the investigation has deposed in consonance with the order. The Investigating Officer who received the caste report as per Exs.P.7 and Spl.C.31/2018 16
8. The spot Mahazar has been drawn by the Investigating Officer on 28.9.2017. In the evidence of P.W.2 who is spot Mahazar witness has deposed after 12 days police have drawn spot Mahazar. As per P.W.11 has deposed he has given statement before the police in page-4 of his cross- examination after 1 or 2 days after the incident. However as per the statement given by the police as brought to the notice of this court. He had given statement only on 17.10.2017 i.e after lapse of more than a month ie., one month. The learned counsel for the accused argues the present so called eye witness are planted by the Investigation Agency. Similarly even the evidence of P.W.9 Gowramma has deposed about seeing the incident in her evidence. She has deposed by denying the suggestion "ಗಲಟಯಗದ ಎಮದ ಹಳವ ದನದದ 1 ನ ಆರಕಪಯ ಚಸ1 ರವರ ಮಲ ಹಕರವ ಚಕ ಅಮನನ ಪಪ ಕರಣಕಕ ಸಬದರದತ ನನ ಯಲಯದ ಮಮದ ಹಜರದದ ರ ಎಮದರ ಸರಯಲಲ .". Further this witness has deposed in page-3 of her cross-examination she came to know on the same day when the dispute is with regard to cheque bounce, which has been informed by the complainant to her and this witness has deposed Spl.C.31/2018 17 she had no any impediment to inform the police on the same day with regard to the dispute. These material contradictions are to be considered with this witness P.W.9 is also being a friend of the complainant has deposed falsely at the first instance in the examination- in-chief this witness deposes she knows the complainant but in the cross-examination at page-3 this witness deposes before the incident complainant was not at all known to this witness. Therefore the evidence of these PWs.9 and 11 cannot be relied as eye witnesses evidence. Other than these 2 persons other witnesses namely the PWs.3, 4 and 6 are family members of the victim. Therefore the evidence of the material witnesses are not sufficient to consider there was like that or abusive words being used by the accused. P.W.7 is the younger brother of the complainant. Therefore there is no any independent testimony to consider the incident do happened. The contradictions got elicited in the cross- examination of PWs.9 and 11 is to be considered and only believing on the evidence of the complainant and prayer is made not to conclude the evidence being corroborated, seems reasonable prayer.
Spl.C.31/2018 18
23. The learned counsel for the accused has filed Written arguments wherein he has submitted that the accused are innocent of alleged offences, the complainant having grudge over the accused persons have filed this false complaint against the accused persons. The accused No.1 has advanced loan of Rs.4,00,000/- to the complainant and complainant failed to make payments, left with no other option the accused No.1 got issued legal notice and complainant failed to repay the amount, the accused No.1 filed complaint u/s.138 of NI Act against the complainant and CC.No.6888/2017 came to be filed and the complainant was convicted by ACMM, against which the complainant preferred appeal challenging the said order, which came to be dismissed. On 16.9.2017 came was posted for cross-examination of P.W.1, complainant did not agree for settlement. When the complainant was questioned how did the cheque in question came to the custody of the complainant, the complainant replied it was stolen by the accused no.1, from her house, when the court was pleased to ask that in this regard whether any complaint has been lodged, the complainant replied no and all of a Spl.C.31/2018 19 sudden lodged complaint, against the accused persons. The accused persons were on bail and in the cross- examination of all the witnesses they have given a vague and contradictory answers. From the above said averments extracted from the depositions of the prosecution witness clearly shows that the prosecution has utterly failed to establish their case and also they have not examined the Tahsildar so as to which caste the complainant belonged to and in this regard they have cross-examined the Investigating Officer the P.W.10 for not conducting any enquiry or investigation and the prosecution has not produced any cogent documents nor placed any evidence before this court. The prosecution has utterly failed to establish their caste and hence prayed to acquit the accused persons in the interests of justice and equity.
24. The Learned SPP argues witness examined by the prosecution are very accurate in supporting the prosecution case. The material witness namely P.W.2 has specifically deposed about drawing of Mahazar after 12 days from the date of incident and this witness signed those documents in presence of complainant. The PWs.3, Spl.C.31/2018 20 4 and 7 though they are family members the P.W.4 is the person who recorded the video of the incident. If there is no any face of any person being seen but altercation is going on is evident from the record. The CD is trust worthy and it has been specifically placed and proved who had taken the CD and how it has been obtained and handed over to the ACP, Investigating Officer are specifically explained by P.W.7. The material Investigating Officers are being examined as P.Ws.6, 8 and 10.
25. The complainant has stood to her words about incident that her cheques have been misused by the accused No.1. In that regard the complainant had given notice to the bank as evidenced by the prosecution by examining P.W.5 who has deposed consistently that the cheques 1 to 25 of HDFC bank from the account of the complainant are being stopped from paying. In fact it even finds no corroboration in the cross-examination of P.W.5 who has deposed that subsequently after giving stop payment of cheque No.5 has been presented by accused No.1 before the bank the witness has deposed 'may be'. Therefore that particular cheque has been Spl.C.31/2018 21 covered under Ex.P.4. As such the prosecution is able to place corroborative material in evidence in proof of the incident.
26. In the case on hand, the pendency of the Negotiable Instrument Act case has no resemblance with the facts as per the complaint and the narration of the complainant that after the case hearing on the same day i.e. on 16.9.2017 after returning from the court, this incident had happened. Therefore the question prima facie there was no any case for complainant to lodge has not been established by the defence. As such the material witnesses examined and the documents placed finds specific corroboration. Therefore prosecution has straight away proved the entire prosecution case without any reasonable doubt. Accordingly accused are to be convicted for the alleged offence.
27. In the case on hand, the complainant/Nanjamma along with P.W.3/Nethravathi, P.W.4/Radha who recorded the MP4 video, 7 in numbers have consistently deposed with regard to the incident. The P.W.1 has specified that at about 1.30 to 2.00 p.m. she came back to her house from ACMM Court by that Spl.C.31/2018 22 time accused had also came back, they have abused the complainant in filthy language and also taken her caste and as she is belonging to lower caste they abused her as "ಕಮಮಮಮ ಜತ ಮಮಡ ಚಪಪ ಲ ಹಲಯವವರ ನಕವ ಮದಗರ " and the accused No.3 threatened that as soon her son- in-law will come she will get killed the complainant. The complainant in her page-5 of her examination dated:28.8.2019 has deposed by identifying the videos which are modified on 2.10.2017, 27.9.2017 and specifically deposed in the videos played in open court there is no person being seen. However only a lady is abusing is audible and she has specifically deposed further on 11.2.2020 about the same 5 3 gp files played in the open court from the CD or DVD and identifies them as Ex.P.3 but there is no any video though recorded is available but only audio is visible. This witness in her cross-examination admits accused have stayed opposite to her house. This witness deposes before the incident she used to visit the house of the accused and they also used to visit her house. This witness denies in the year 2016 she had borrowed Rs.4 lakhs from the accused she did agreed to return the same with interest. This witness Spl.C.31/2018 23 specifically admits in the judgment of the Negotiable Instruments Act case she has been ordered to pay back the accused persons. This witness admits she had attended the court and reported this witness admits she had preferred appeal on the cheque bounce case. This witness admits only on 16.9.2017 the appeal on the cheque bounce case was pending in the criminal court. This witness in page-10 of her cross-examination this witness deposes that the court enquired her about whether she had given any complaint with regard to bouncing of her cheque, this witness admits both Exs.P.1 and 2 is complaint and the spot Mahazar has been signed by her in the police station only. This witness admits the appeal filed by her on the Negotiable Instruments Act is dismissed.
28. P.W.2/Raju so called spot Mahazar witness deposed police on 16.9.2018 incident did happened and only after 12 days police visited the spot and Mahazar was drawn. He alongwith Gangappa had signed the Mahazar. In his cross-examination deposes he does not know to read or write. This witness specifically admits he does not know the contents of Ex.P.2. This witness Spl.C.31/2018 24 deposes he had signed to Ex.P.2 in the spot. This witness specifically admits what has happened, he does not know. This witness admits as police directed him he had signed it. This witness admits the house of the complainant and his house are in the same road. This witness deposes he cannot give on what basis he has mentioned 12 days after the incident.
29. The P.W.3/Nethravathi has deposed about incident happened on 16.9.2017. This witness deposes C.W.1 relative Radha had recorded video and they made it into CD and handed over the same. This witness admits by deposing there was no any person seen in the 7 video clips. There was no any specific caste abuse, this witness deposes by denying the suggestion.
30. The P.W.4/Radha in her examination-in-chief deposes as that of other witnesses this witness identifies the video played in the open court. This witness also admits there is no any person seen in Ex.P.3. This witness specifically denies the suggestion on 5.7.2022 tha tt persons who abused are not seen in the video.
31. The P.W.5/Ramesh has deposed giving stop payment on 20.4.2016. In the cross-examination of P.W.5 Spl.C.31/2018 25 it has been suggested cheque No.5 has been handed over to the accused only on 5.12.2016 is an admitted fact.
32. The P.W.7/Sriram deposes complainant is his elder sister and accused have stolen the cheque from their house is the allegation. This witness deposes he got video recorded by Radha in the mobile converted and got into a CD and handed over the same namely Ex.P.2. This witness admits in cross-examination he had married 2 persons. This witness admits complainant has been directed to pay back the amount to the accused No.1, but his sister is not paying the same.
33. The P.W.6, 8 and 10 are the official witnesses who had deposed about their part of work done.
34. In the evidence of P.W.9 deposes on 16.9.2017 incident had happened. This witness is so called eye witness to the incident. This witness deposes spot is at a distance of 1 1/2 kms from Vijayanagar bus stand. This witness deposes she was present in the spot upto 4.00 p.m on 16.9.2017. The complainant has made report before the jurisdictional police at 7.30 pm. In the complaint itself complainant has mentioned about Spl.C.31/2018 26 abusive words used by the accused and Investigating Officer has registered crime concerning SC/ST (POA) Act 1989 as per Ex.P.1 itself. He had made a note. However the spot Mahazar has been conducted on 28.9.2017 after a period of approximately 10 days. In the case on hand, the Investigating Officer was aware on the date of registration of crime itself, it is a special case which is to be tried as per SC/ST (POA) Act 1989. There is latches on the part of the Investigating Officer from the date of alleged incident it is on 16.9.2017 upto 28.9.2017 Investigating Officer has not at all taken any care to conduct the investigation by inspecting the spot on the next day is evident from record. This piece of evidence even as per the admission of the Investigating Officer with regard to conducting the investigation the gap of 10 days from the date of registering crime to the date of conducting spot Mahazar is not as per the Rules 5,6 or 9 of the SC/ST (POA) Act Rules 1995 as brought to the notice of the court by counsel for complainant seems reasonable. In fact the witnesses namely PWs.9 and 11 are being enquired by the jurisdictional Investigating Officer by recording their statement only on 20.10.2017.
Spl.C.31/2018 27 The DCP west appointed the Investigating Officer as per Ex.P. 6 has been made only on 17.10.2017 itself though report has been made as per Ex.P.6 on 17.9.2017 itself. Therefore the progress of the court proceedings has not been conducted as per the mandate of the statute. The complainant in her complaint Ex.P.1 has specifically mentioned "ಭಗನ ನಕನ ಕರ ಚಪಪ ಲ ಒಲಯ ಕಮಮ ಜತಯವಳ ನಕನ ನವ ಕಳದಷಷ ಹಣ ಕಡದ ಇದದ ರ ನನನ ನನ ಜಕವಸಹತ ಉಳಸವದಲಲ ಎಮದ ಬದಳ ಹಗ ಜಯಮಮ ಸಹ ಕನ ಕರರ ಎಮಜಲನನ ನನನ ಮಲ ಉಗದ ಹಲಯನಗ ಹಟಷ ದ ಬವರರ ಮಮಡ" . In the complaint, complainant has not specified about the spitting made by the accused. In fact the so called eye witness P.W.3 has also not specified about the spitting on the complainant by the accused. Similarly P.W.4 so called person who recorded the video. The P.W.4 has specified that the neighbours pacified the dispute. In fact in the case on hand, all the material witnesses namely P.Ws.4, 3, 7 are family members. The independent witnesses namely P.W.9/Gowramma and P.W.11/Govindaraju. These two witnesses though witnessed the incident on 16 th and 17th, they have specified the incident details before the Spl.C.31/2018 28 Investigating Officer only on 20.10.2017 after a period of 1 month. These facts creates doubt seems reasonable one.
35. In the case on hand on going through the citation of our Hon'ble High Court of Karnataka in 2023 (4) KCCR 3544 in case of Tammanna V/s. State of Karnataka wherein the Hon'ble High Court has observed " the abusive words are be as such that it should be provocative so as to commit breach of public peace". In the case on hand as observed by the Hon'ble High Court of Karnataka in Part-A of Head Note :
"A. Penal Code, 1860-Section 504-
Evidence Act, 1872-Section 3- Acquittal-Insult with intent to provoke breach of public peace, not spoken to by witnesses in a consistent manner-
mentioning of alleged abusive words in complaint and evidence of complainant alone cannot be basis for conviction of accused -Hence, acquitted."
36. The abusive words are specified so as to commit breach of peace itself is not forthcoming since in the evidence of P.W.4 herself has admitted public have pacified the dispute and sent all of them to respective houses. Such being the case the evidence of P.W.9/Gowramma about spitting on the face of the victim Spl.C.31/2018 29 and also assault being made is nothing but improvements. Similarly P.W.11 has also deposed victim was weeping and they were abusing and even accused No.3 had spit on the face of the victim has been deposed. As per the statement of Gowramma/P.W.9, P.W.9 had enquired the victim then she came to know her name is Nanjamma and the name of the accused persons are Bhagya, Jayamma and Raju. Howver in the evidence of P.W.3/Nethravathi, P.W.4/Radha have not specified about the spitting on the face of the victim by accused. Therefore the act of the accused has caused breach of public peace is not forthcoming from them, material placed by the prosecution is my firm view. Accordingly as per the observations of the Hon'ble High Court of Karnataka the present facts though are same however the principle of law observed by the Hon'ble High Court of Karnataka based on the judgment of Hon'ble Apex Court in Fiona Shrikhande Vs. State of Maharashtra reported in AIR 2014 SC 957 wherein it has been observed and held that Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give Spl.C.31/2018 30 provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC"are definitely applicable to the facts on hand. In fact in the present case there is no any breach of public peace is appearing from the materials on record. The accused have caused breach of public peace has not been substantiated.
Spl.C.31/2018 31
37. In the case on hand, the CD placed on record has been made into CD when the P.W.7 had given statement he handed over the same to the Investigating Officer. However the certificate 65B of P.W.7 is not available on record who had got the same made into CD from the mobile from which the P.W.4 has recorded the same. In fact as admitted by P.Ws.1, 3 and 4 the video placed on record by way of CD does not disclose about the picture or persons cannot be seen is an admitted fact. Secondly what are the abusive words heard even after playing of the CD in the court the witnesses have not specified the same again which can corroborate with the materials placed on record. Under these circumstances, the placing of the CD is of no any practical purpose in bringing home the guilt of the accused is my firm view. Accordingly on the basis of the materials on record, this court is satisfied to answer Point Nos.1 and 2 in the Negative.
38. POINT Nos.3 and 4: The prosecution to prove the ingredients of alleged offences punishable u/s.3(1)(r) & (s) of SC/ST (POA) Act 1989 has relied on the evidence of PWs.1, 4, 3, 7 who are family members, Spl.C.31/2018 32 the P.Ws.9 and 11 are independent witnesses. In fact the evidence of Pws.3, 4 and 7 though not specified the evidence of PWs.9 and 11, there is no any discrepancy in the examination-in-chief. However in the case on hand the alleged incident did happened on 16.3.2017, but the Investigating Officer had recorded the so called eye witness only on 17.10.2017 and 20.10.2017 after lapse of more than a month. Therefore these evidence cannot be considered as evidence given at the first instance. In fact the learned counsel for the accused submits in the cross of P.W.9 she has been specifically questioned though she is eye witness to the incident why she has kept mum for a period of 1 month is specifically questioned to which this witness replies 'mum'. The panch witness P.W.2 has specifically deposes that he has been called to be a panch witness after 12 days from the date of incident. In the cross-examination it has been specifically questioned that how he can give the date when he is unable to give the date of incident but he is specific about drawing Mahazar after 12 days and on what basis he is giving particular period of 12 days he is unable to answer the same. These discrepancy obliges Spl.C.31/2018 33 this court that the incident did happened as further prosecution case cannot be presumed. In fact the independent witnesses have specifically deposed the public gathered therein had pacified the dispute, as such all the persons went to their respective houses. These facts contradict with the incident being happened as for the prosecution case. Under these circumstances, this court based on the video clips which does not disclose about the incident and the abusive words have only words only audible but what are the words used by the accused persons to abuse the complainant are not finding corroboration in the prosecution evidence. Accordingly these Point Nos.3 and 4 for consideration are answered in the Negative.
39. POINT No.7 : The accused did complied the provisions of section 437A of Cr.P.C., by providing personal bond before this court, for their appearance before the Hon'ble Appellant court. In view of my foregoing reasons, I proceed the pass the following;
ORDER Acting under Section 235(1) of Cr.P.C., the accused Nos.1 to 4 are Spl.C.31/2018 34 acquitted of the offences under Section 504, 506 r/w.34 of IPC & Sec.3(1)(r), 3(1)(s), of SC/ST(POA) Act, 1989.
The accused Nos.1 to 4 are set at liberty.
However, the bond executed in compliance of Sec.437(A) of Cr.P.C., shall be in force till appeal period.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected, signed and then pronounced by me in open Court on this the 3 rd day of January 2024).
(Rajesh Karnam.K) LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru.
ANNEXURE
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Nanjamma
P.W.2 : Raju
P.W.3 : Netravathi
P.W.4 : Radha
P.W.5 : Ramesh
P.W.6 : Nagaraj.G.P.
P.W.7 : Sreeram
P.W.8 : M.Venugopal
P.W.9 : Gowramma
P.W.10 : Parameshwara Hegde
P.W.11 : Govindaraju
Spl.C.31/2018
35
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.1(a)(b) : Signature of PW.1, P.W.6 Ex.P.2 : Spot Panchanama Ex.P.2(a)(b)(c) : Signature of PWs.1,2,8 Ex.P.3 : CD Ex.P.4 : Letter of HDFC Bank Ex.P.4(a) : Signature of P.W.5 Ex.P.5 : FIR Ex.P.5(a) : Signature of P.W.6 Ex.P.6 : DCP Order Ex.P.6(a) : Signature Ex.P.7 : Caste report of A1 to 4 Ex.P.7(a) : Signature of P.W.10 Ex.P.8 : Caste report of complainant Ex.P.8(a) : Signature of P.W.10
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
Nil (Rajesh Karnam.K) LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru