Karnataka High Court
K P Babu vs State Of Karnataka By on 9 December, 2020
Equivalent citations: AIRONLINE 2020 KAR 2642
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.65/2011
BETWEEN:
1. K P BABU
AGED ABOUT 39 YEARS
S/O. LATE PUTTASWAMY GOWDA
2. MAHADEVA
AGED ABOUT 35 YEARS
S/O KOMMEGOWDA
3. R. MAHADEVA @ MOTIKARIYA
AGED ABOUT 28 YEARS
S/O RAMEGOWDA
4. DEEPAK @ DEEPU
AGED ABOUT 25 YEARS
S/O SRIKANTEGOWDA
5. R SRINIVASA @ BABRUVAHANA
AGED ABOUT 33 YEARS
S/O RAMEGOWDA
6. SRINIVASA
S/O THIMMEGOWDA
7. MAHESHA
S/O RAMEGOWDA
8. KRISHNA
S/O ANNEGOWDA
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ALL ARE THE RESIDENTS OF
HALE KEMPAIAHNAHUNDI VILLAGE
T. NARASIPURA TALUK
MYSURU DISTRICT. ... APPELLANTS
(BY SRI. C.R. GOPALASWAMY, ADVOCATE)
AND:
STATE OF KARNATAKA BY
T. NARASIPURA POLICE
MYSURU DISTRICT
REPRESENTED BY
STATE PUBLIC PROSECUTOR
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT OF KARNATKA BUILDING,
BENGALURU-560 001. ... RESPONDENT
(BY SRI. DIWAKAR MADDUR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING THIS COURT TO SET ASIDE THE JUDGMENT
OF CONVICTION DATED 20/23.12.2010 PASSED BY THE VI
ADDL. S.J & SPL. COURT UNDER SC & ST (POA) ACT, 1989,
MYSURU IN SPL.C.NO.2/09-CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 148, 324, 506(B), 427, 114 READ WITH SECTION 149 OF
IPC AND SECTION 3(1)(x) OF SC/ST (POA) ACT, 1989. 1) THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO S.I. FOR
ONE YEAR AND PAY A FINE OF RS.1,000/- EACH IN DEFAULT OF
PAYMENT OF FINE THEY SHALL UNDERGO S.I. FOR TWO
MONTHS-FOR THE OFFENCE PUNISHABLE UNDER SECTION
3(1)(x) OF SC/ST (POA) ACT, 1989 AND ETC.,
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 20.11.2020, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment of conviction dated 20.12.2010 and the order on sentence dated 23.12.2010 passed in Special Case No.2/2009 on the file of VI Additional District & Sessions Judge and Special Court under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Mysuru ('Trial Court' for short).
2. The parties are referred to as per their original ranking before the Trial Court as Complainant and Accused in order to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the prosecution case is that the Complainant Mallesh is the resident of Hale Kempaiahnahundi, T. Narasipura Taluk. That on 11.09.2008 at about 9:00 p.m, when complainant along with Puttaraju, Mahadeva, Prakash and Mallesh were standing near the shop of one Srinivasa, at that time, the procession of Gajanana idol in order to immerse the same in the Canal was proceeding. The complainant went to make the prayer to Gajanana idol and at that time, accused No.1 pushed him back and when the complainant enquired as to why 4 he pushed him, accused No.1 abused the complainant as "ºÉƯÉAiÀÄ §rØ ªÀÄPÀ̼ÀÄ" and as to why he came to the road and he thought he would teach him a lesson. In the meantime, accused Nos.2 to 6 came armed with stones and clubs and abused the complainant as "ºÉƯÉAiÀÄ £À£Àß ªÀÄPÀ̼ÀÄ" and assaulted him with stones on his nose, face and other parts of the body. The accused also assaulted Puttaraju-CW.6, Mahadeva-CW.7, Prakash-CW.8 and Mallesh-CW.9 with clubs and stones. Accused No.5 also abused them by taking their caste name and all of the accused persons gave the life threat to them by holding clubs in their hands stating that they would kill them. In the meantime, one Kempi Madaiah and Basavanna came and pacified the quarrel. Then, accused threw away the stones and clubs on the spot and went away. Thereafter, Kempi Madaiah and Basavanna took the complainant and other injured persons to Government Hospital, T. Narasipura for treatment.
4. P.W.12-PSI of T.Narasipura Police Station recorded the statement of P.W.1 in the Government Hospital and registered a case and then, he handed over the investigation to P.W.13 - Dy.S.P., Nanjangud, for further investigation. P.W.13 5 investigated the matter and filed the charge sheet. The offences invoked against the accused persons are punishable under Sections 143, 147, 148, 324, 506B, 427, 114 read with Section 149 of IPC and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('SCST Act' for short).
5. The accused persons were secured and they did not plead guilty and claimed the trial. The prosecution in order to prove the case, examined P.Ws.1 to 13 and got marked the documents at Exs.P.1 to 17. The prosecution also relied upon M.Os.1 to 8. After closure of prosecution evidence, the statement of accused persons was recorded under Section 313 of Cr.P.C, and the accused did not choose to lead any defense evidence. The Trial Judge after hearing the Public Prosecutor and also the defense counsel, convicted the accused persons for all the offences. Hence, the present appeal is filed before this Court.
6. The main grounds urged in the appeal are that the trial Judge failed to see that there was no essential ingredients to attract Section 3(1)(x) of the SCST Act. The ingredients of the offences are that in public view knowing fully well that the 6 persons belong to SCST, with an intention to humiliate them, the accused persons have committed the offences and assaulted them. Nowhere in the entire evidence, the essential ingredients to attract the provisions of the above mentioned Sections have been brought on record.
7. The learned Trial Judge has failed to notice the same and committed an error. The Trial Judge also failed to take note of the fact that there are material contradictions and omissions in the evidence of prosecution witnesses. The Trial Judge has committed an error in convicting the accused for all the offences. The learned Trial Judge in a casual manner convicted the accused persons in the absence of legal evidence. The trial Judge failed to see that the evidence of the complainant is not only contrary and the same was not corroborating with other evidence and there are vital contradictions. The evidence of eyewitnesses and injured witnesses are not credible, instead of giving benefit of doubt in favour of the accused persons committed an error in convicting the accused persons and the same opposes the basic principles of criminal jurisprudence. 7
8. Learned counsel for the appellants/accused in his arguments, he vehemently contended that the case was registered only against accused Nos.1 to 5 at the first instance and an FIR also discloses the same, but only, while filing the charge sheet accused Nos.6 to 8 were arraigned as accused persons along with accused Nos.1 to 5. The Doctor, who examined the injured persons categorically mentioned in the Wound Certificate that it was a mass assault and not mentioned the name of assailants. Exs.P2 and P3 are the Mahazars and in Ex.P2, it discloses that they have collected pieces of broken tiles and stated that 6 tiles were broken. But the prosecution witnesses speak that more than 150 tiles were broken. It is the evidence of P.W.2 that he took the injured persons in the Police Jeep and the Wound Certificate does not disclose who brought the injured to the hospital. The injuries, which have been noted in the Wound Certificate - Exs.P4 to P12 also, do not correspond with the injuries spoken by the injured persons.
9. On perusal of the entire complaint and evidence, the Caste Insult was made only by accused No.1 according to the prosecution. It is contended that it is their case that they were 8 not standing near the shop of Srinivasa and the said Srinivasa was not examined. P.W.3, who is an eyewitness and in his exaggeration, he says 150 tiles were damaged but Police reported only six tiles were damaged. P.W.3 is the brother of P.W.1. PWs.5, 6 and 8 are the injured persons and PWs.7 and 9 are the eyewitnesses according to the prosecution. The Doctor, who has been examined as P.W.10, categorically admits that there are chances of sustaining these injuries, if a person falls on the hard surface. The evidence of P.W.11 is that he arrested accused persons No.1 to 5. P.W.12 is the PSI, who received the memo and recorded the statement of P.W.1, registered a case and sent the FIR-Exs.P11 and P12. P.W.13 is the Investigating Officer, who conducted the investigation.
10. Learned counsel appearing for the appellants/ accused would submit that on perusal of the entire evidence of the prosecution witnesses, nothing has been made out that it was an intentional insult made to P.W.1 to humiliate him and the evidence of the prosecution is contrary to each other and there are material contradictions and the trial Judge ought to have extended the benefit of doubt in favour of the accused instead of 9 erroneously convicted the accused for all the offences even though no ingredients of such offences are made out by the prosecution.
11. In support of his contention, he relied upon the Judgment of the Apex Court in the case of Khuman Singh v. State of Madhya Pradesh reported in 2019 SCC OnLine SC 1104, and brought to the notice of the Court that in paragraph- 13 of the Judgment with regard to the scope of invoking the SCST Act would contend that there is no material before the Court with an intention to insult, an abuse was made.
12. The learned counsel also relied upon the Judgment of the Apex Court in the case of Gorige Pentaiah v. State of Andhra Pradesh and others reported in (2008) 12 Supreme Court Cases 531. The learned counsel referring to this Judgment would submit that the Apex Court has observed in this Judgment that if the intentional insult is not made within the public view, the basic ingredients of the offence are missing and permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. The 10 learned counsel referring to this Judgment also contend that there is no material before the Court with regard to intentional humiliation of persons in a public view and the ingredients of the special enactment has not been made out.
13. The learned Counsel further relied upon the Judgment of the Bombay High Court in the case of Gulab Khavale v. Hiraji Ghuge & Others reported in 2006 CRI.L.J. 3451. In this judgment, the Bombay High Court held that, if the witnesses are examined by the prosecution were interested witnesses and found glaring contradictions in their evidence and in the absence of examining any independent witnesses, the accused is entitled for acquittal.
14. The learned counsel referring to this Judgment would contend that this case is aptly applicable to the case on hand and the witnesses, who have examined before the Court, who are the interested witnesses and the other independent witnesses belong to the same community and they are not the independent witnesses. Hence, the appellants are entitled for acquittal.
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15. The learned counsel also would submit that having taken note of both oral and documentary evidence, the very incident is doubtful and no witnesses speak about uttering the word by the other accused persons No.2 to 5. In order to invoke the SCST Act against other accused persons, there is no material and the evidence given by the prosecution against accused persons No.6 to 8 also is very weak and they have been falsely implicated at the time of filing the charge sheet. Hence, it is a fit case for reversing the finding of the Trial Court.
16. Per contra, learned High Court Government Pleader for the respondent/State vehemently contended that the trial Judge has appreciated both oral and documentary evidence in a right perspective. The charge No.7 has been proved by producing the document - Ex.P15-Caste Certificate. It is the case of the prosecution that when the complainant went to make the prayer to Gajanana idol, P.W.1 by uttering the Caste name, abused the complainant. When PWs.4 to 8 were also present, all these accused persons are not only abused, they also assaulted with Clubs and Stones. The injured witnesses and independent witnesses have also deposed that accused No.1 was abused and 12 pushed P.W.1 and when P.W.1 questioned the same, the other accused persons also abused. The learned counsel would submit that the medical evidence corroborates the evidence of injured persons and though the nature of injuries is simple in nature. The prosecution has proved that the downtrodden people were subjected to insult in the public view and also they were subjected to assault and medical evidence corroborate each other. Hence, the trial Judge has not committed an error in convicting the accused for all the offences.
17. In reply to the arguments of learned High Court Government Pleader appearing for the State, the appellants' Counsel would contend that the trial judge while appreciating the evidence generalized the evidence and not discussed the evidence meticulously with regard to the overt-act of the accused persons and the evidence of the injured witnesses PWs.4 to 6 and 8 are contrary to each other and their evidence has to be meticulously examined whether it inspires the confidence of the Court and in the absence of the credible evidence, the accused persons cannot be convicted. Hence, it is a case for acquitting the accused persons.
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18. Having heard the arguments of the learned counsel appearing for the appellants/accused and also the learned High Court Government Pleader appearing for the respondent/State and also the grounds urged in the appeal and on considering the material available on record, the points that would arise for consideration of this Court are:
(1) Whether the trial Judge has committed an error in convicting the accused for the charges leveled against them for the offences punishable under Sections 143, 147, 148, 324, 506B, 427, 114 read with Section 149 of IPC and Section 3(1)(x) of the SCST Act?
(2) What order?
Point Nos.(1) and (2):-
19. Having heard the submissions of both the learned counsel, this Court has to re-appreciate the material whether the Trial Judge has committed an error in convicting the accused. Before appreciating the oral evidence, this Court would like to make a mention of the gist of the complaint, which is marked as Ex.P.1. The complainant who has been examined as P.W.1, in the complaint averred that when the Ganesha immersion 14 procession was going, he himself and others went to pray the god. By that time, accused No.1 pushed him and when he questioned the same, he abused taking their caste name and replied that they would teach a lesson to them and instigated others to assault. The accused persons, who were having stones and clubs also abused them taking caste name and assaulted. As a result, they have sustained injuries. It is also his case that the accused persons threatened that they would have taken their life and they have survived. The residents of their street Kempi Madaiah and Basavanna pacified the galata and took them to T. Narasipura Government Hospital. The police after registering the case, recorded the statement of the witnesses and filed the charge-sheet. The prosecution in order to prove its case relied upon the evidence of P.Ws.1 to 13.
20. P.W.1 complainant Mallesha in his evidence he reiterated the complaint averments. He was subjected to cross- examination. In the cross-examination, a suggestion was made that there was an ill-will between them and he was fully drunk and after eating the chicken, he threw the waste towards the Ganesha idol and when the same was questioned, a false 15 complaint was given that they have abused by taking the caste name and the said suggestions were denied. However, it is elicited that near the bus stand, some huts were put up. Hence, the dispute was arisen in the village. It is also elicited that M.Os.1 to 3, 5 and 6 would be available in the village everywhere.
21. P.W.2 who is the panch witness to mahazar Ex.P.2 claims that there was a galata at the time of immersion of Ganesha idol and he has signed the mahazar and the police have explained the contents of Ex.P.2 and thereafter he has signed the same. But in the cross-examination, he admits that he does not know the contents of Ex.P.2. It is suggested that M.Os. are not seized at the spot and the same was denied.
22. P.W.3 in his evidence he reiterates with regard to the galata and he claims that accused No.1 pushed P.W.1 and when P.W.1 questioned the same, he abused him taking his caste name. They were having clubs and stones and accused No.1 assaulted P.W.1 with his hand on his face. When the accused threw the stones, C.W.6 and P.W.1 sustained injuries. When C.W.6 tried to pacify the galata, the accused persons have 16 pelted the stones. The accused also assaulted P.W.1 and P.W.6 with the club. As a result, six persons have sustained injuries. He also claims that when they pelted the stones, 100-150 tiles of his house were damaged and the said fact was informed to the police over phone. It is also his evidence that he took the injured to the hospital in the police jeep. He also identifies his signature in Ex.P.2 and identifies M.Os. He was treated hostile partly and cross-examined by Public Prosecutor and admits the suggestions made by the Public Prosecutor. In the cross-examination, he says that accused No.2 assaulted P.W.1. As a result, he sustained injuries to his right knee and also to his right hand. Accused No.4 assaulted P.W.1 with stone on his nose. Accused No.4 assaulted C.W.6 when he went to pacify the galata. As a result, he sustained injures on back of his head. It is elicited that accused Nos.7 and 8 instigating to assault abusing taking their caste name. The defence counsel in the cross-examination suggested that in order to get the compensation, he is falsely deposing before the Court that 100-150 tiles were broken and the said suggestion was denied.
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23. P.W.4 injured in his evidence says that accused No.1 abused taking the caste name of P.W.1 and pushed him. When he questioned, accused No.4 assaulted him with stone on the back of his head. Accused No.3 fisted him and also assaulted with club. Accused No.6 pelted stones and caused damage to the tiles. Accused No.5 assaulted C.W.8 with club and accused No.7 assaulted with stone and club. The accused abused them taking their caste name. In the cross-examination, a suggestion was made that they have not abused taking their caste name and also not assaulted and the said suggestions were denied.
24. P.W.5 another injured in his evidence he claims that when P.W.1 went to pray god, accused No.1 pushed him. As a result, P.W.1 fell down. When they questioned, they abused taking their caste name. As a result, they were humiliated. Accused No.3 assaulted him with stone on his left leg. Accused No.7 pushed him and he fell down. Accused Nos.5 to 7 stamped him. Accused No.4 assaulted P.W.4. Accused No.2 assaulted with club on C.W.8. Accused No.1 assaulted P.W.1 with club. Accused Nos.6 and 4 have assaulted C.W.10 with the club. 18 Accused No.4 assaulted P.W.1 with stone on his nose. Accused No.1 assaulted P.W.1 with club and he also sustained injuries.
25. In the cross-examination, he admits that there was rivalry between them in connection with putting up of huts in the village. He also admits that in the village people support different political parties. It is suggested that in order to claim the compensation from the Government, he is falsely deposing before the Court and the said suggestion was denied. He admits that similar type of M.Os.1 to 3, 5 and 6 would be available everywhere in the Village.
26. P.W.6 injured in his evidence he says that accused No.1 pushed P.W.1 and when P.W.1 questioned, he abused him taking the caste name. Accused No.4 assaulted with stone on P.W.1. Accused No.1 assaulted P.W.1 with club. Accused No.4 assaulted P.W.4 with stone on the back of his head. Accused No.1 also assaulted P.W.9 with club on his leg. Accused No.3 assaulted C.W.10 with the club. Accused Nos.5 to 8 abused taking their caste name and also caused life threat. He was subjected to cross-examination.
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27. In the cross-examination, he admits that from last 7- 8 months police were deployed in connection with dispute of installing huts in the village. It is suggested that in order to get the compensation, false complaint is given and the said suggestion is denied. He also admits that M.Os would be available in the village everywhere.
28. P.W.7 injured in his evidence he says that accused No.1 pushed P.W.1 and abused taking the caste name. Accused No.1 assaulted with club on the nose and also on the head and accused No.4 assaulted P.W.1 with the stone. When he went to pacify the galata, accused No.1 assaulted him with the very same club. Accused No.4 also assaulted with stone. Accused No.4 assaulted P.W.4 with the stone. Accused No.3 assaulted P.W.5 with club and stone. Accused No.3 assaulted with stone and club on C.W.10 and abused taking their caste name. The accused persons pelted stones on the house of P.W.4 and caused damage to the tiles. He was subjected to cross-examination.
29. In the cross-examination, he admits that in his village there are 4,000 to 5,000 people. He denies deploying of the police in the village. It is suggested that he is falsely 20 deposing before the Court and he has not given any statement before the police and the said suggestions were denied.
30. P.W.8 in his evidence deposed that accused No.1 pushed P.W.1 and when P.W.1 questioned the same, he abused taking the caste name. Accused No.5 assaulted P.W.1 with the stone and other accused persons assaulted P.W.1 with the club. When P.W.4 went to pacify the galata, accused No.4 assaulted with stone on the back of his head.
31. In the cross-examination, he admits that there is a kabab shop in the village and the people used to consume alcohol. He also admits that from 7-8 months police are deployed in connection with the installation of huts in the village. He also admits that in the village they are affiliated to different political parties. He also admits that accused Nos.5 and 6 are having manure shop and general store. It is suggested that they used to purchase the same on credit basis from them and when they demanded the money, they used to file the false complaint and the said suggestion was denied. He admits that there were more than 500 people in the procession and there was sound of beating the drums. It is suggested that due to the said sound, 21 they were unable to hear the talks and the said suggestion was denied.
32. P.W.9 also reiterated that when P.W.1 went to offer prayer to god, at that time, accused No.1 abused and fisted on his face. Accused No.3 assaulted P.W.4. Accused No.4 assaulted P.W.1 with club. Accused No.5 assaulted P.W.6. Accused No.3 assaulted P.W.7 with the stone. Accused No.4 assaulted P.W.7 with club. Accused No.6 assaulted P.W.8 with stone. He was subjected to cross-examination.
33. In the cross-examination it is elicited that there were thousands of people in the procession and also sound of beating the drum and they were unable to hear the talks and also admits that the police were deployed in connection with putting up of the huts.
34. P.W.10 is the doctor who treated the injured persons. In his evidence he says that he examined the injured persons and they have given the history that Srinivasa, Babu, Krishna, Mahadeva, Kariyappa and Deepu assaulted them with stones. He examined P.Ws.1, 4, 6, 7 and 8 and found the injuries and they were simple in nature. He was subjected to cross-examination. 22
35. In the cross-examination, he admits that if any person falls on the hard surface, these type of injuries could be caused. The Investigating Officer did not furnish the stone and club to get his opinion. It is elicited that the injuries mentioned in Exs.P.5 to 9 could be caused if a person falls on the hard surface. He admits that in Exs.P.4 to 9 there was no any mention that P.W.3 brought the injured persons to the hospital.
36. P.W.11 - PSI in his evidence says that he apprehended accused Nos.1 to 5 and gave the report in terms of Ex.P.10. It is suggested that he is falsely deposing that he apprehended the accused persons in Mysore Sub-urban Bus stand and the same was denied.
37. P.W.12 - PSI in his evidence he says that he received the police intimation at 1'o clock and immediately he went and recorded the statement of P.W.1 in the presence of the doctor. Thereafter, he came and registered the case and sent the FIR on the next day morning and he identifies his signature as Ex.P.1(c) and Ex.P.11(a) and also identifies his signature on Ex.P.12 memo received from the hospital. In the cross- 23 examination, a suggestion was made that he has registered a false case against the accused and the same was denied.
38. P.W.13 is the Investigating Officer who conducted the further investigation. In his evidence he says that he took up the investigation from P.W.12 and he went and conducted the spot inspection and deputed P.W.12 to apprehend the accused persons. He conducted the mahazar from 8.00 a.m. to 9.20 a.m. and seized M.O. stone at the spot and also seized the broken tiles. He identifies the signature on mahazar Ex.P.2. He recorded the statement of the injured persons and also seized the blood stained clothes in terms of mahazar Ex.P.3 and also recorded the statement of the witness and also made the request to the Tahsildar to issue the caste certificate. Accused No.1 to 5 were apprehended and produced before him and he did the formalities and thereafter collected the wound certificate and caste certificate and after the completion of the investigation, he filed the charge-sheet. He was subjected to cross-examination.
39. In the cross-examination, he admits that P.W.3 has not given any statement before him that he took the injured persons in the police jeep and also he has not stated that on 24 account of damage caused to his tiles, he has suffered thousands of rupees. He cannot tell whether the injured persons have received the compensation or not. It is suggested that accused No.6 to 8 are falsely implicated in the case and the said suggestion was denied. It is suggested that the accused persons have not abused P.W.1 taking their caste name and the said suggestion was denied.
40. Having perused both oral and documentary evidence placed on record, particularly Ex.P.1 complaint, the incident was taken place on 11.09.2008 at 9.00 p.m. and the statement of the injured P.W.1 was recorded on the night itself at 1.30 a.m. to 2.30 a.m. on 12.09.2008 and the FIR was sent to the Court on the next day morning and reached the Magistrate at 7.30 a.m. on 12.09.2008 in terms of Ex.P.11. On perusal of the complaint, a specific allegation is made that accused No.1 pushed P.W.1 when he went to pray god and when the same was questioned, accused No.1 abused P.W.1 taking his caste name that they are having guts to come and stand in the road and to teach lesson to them and he instigated accused Nos.2, 3 and 4 who have assaulted with stone and club to him and P.Ws.4 to 7. The complaint also discloses that accused No.5 also abused 25 taking the caste name and threatened that they have survived today and they are going to take away the life showing the club.
41. Now this Court has to examine whether the evidence of the witnesses are consistent. Before considering the evidence, this Court would like to consider Ex.P.12 which is an intimation given to the police by the doctor when the injured persons went to the hospital. Ex.P.12 discloses that history is mentioned as mass assault and the said intimation was received at 1.00 a.m. and thereafter statement of P.W.1 was recorded in the hospital from 1.30 a.m. to 2.30 a.m. The intimation discloses that it was a mass assault. On perusal of the documents Exs.P.4 to 9 - wound certificates it is mentioned as history of assault by stone and not mentioned the name of assailants except in Ex.P7 and injured persons were taken to the hospital at 12.30 a.m. onwards till 8.30 a.m.
42. Having perused Ex.P.7, only the history of assault is mentioned as assault with stone by Srinivasa, Babu, Krishna, Mahadeva, Kariyappa and Deepu and the name of the accused are not mentioned in the other wound certificate. Only in Ex.P.9 history was mentioned that assault with stick and all other 26 documents mentions assault with stone. Having perused these documentary evidence, this Court has to consider the oral evidence available before the Court. First of all, in terms of Ex.P.12 intimation, it was a mass assault and the complaint also discloses that the statement was recorded at 1.30 a.m. to 2.30 a.m. and names of the assailants has been mentioned. The immediate document which came into existence is Ex.P.12 and wound certificate particularly, Ex.P.4 at 12.30 a.m., Ex.P.5 at 12.40 a.m. and other wound certificates after recording the statement of P.W.1. The names of assailants not mentioned in Exs.P4 and P5. Hence, there are chances of mentioning the names of the assailants subsequently that too only in Ex.P7. It creates the doubt with mentioning the names of the assailants.
43. On perusal of the evidence of P.W.1 he claims that accused No.1 pushed and abused him and P.W.1 claims that accused No.1 assaulted on his nose by hand. P.W.4 deposes that accused No.1 abused and assaulted P.W.1 by hand and there is consistency in the evidence of P.Ws.1 and 4 regarding abuse and assaulting P.W.1 by hand. But P.W.5 says that accused No.1 assaulted P.W.1 with club, but P.W.1 claims that accused No.4 27 assaulted him by stone on his leg. The evidence of P.W.6 is that accused No.1 pushed P.W.1 and assaulted with club. P.W.6 also deposed that accused No.4 assaulted P.W.1 on his nose, but P.W.1 does not say anything about accused No.4 assaulted him on his nose. P.W.1 also deposes that accused No.1 assaulted with the club. P.W.7 says that accused No.1 assaulted with the club on the head and nose of P.W.1. Accused No.4 assaulted with stone on the nose of P.W.1. P.W.8 claims that accused No.4 assaulted on the face of P.W.1 by stone and remaining accused assaulted P.W.1 with clubs. P.W.9 claims that accused No.1 abused and assaulted P.W.1 by hand on his face.
44. Having perused the evidence of the prosecution witnesses, there are inconsistency in the evidence of all the witnesses. Some witnesses say that they were assaulted with club and some witnesses say that they were assaulted with stone. P.W.1 only says that accused No.1 assaulted him on his nose by hand. The evidence is inconsistent and contrary to each other. P.W.4 other injured claims that accused No.4 assaulted on the back of his head and accused No.3 assaulted him by hand and also with club. P.W.1 deposes that somebody has assaulted 28 P.W.4. P.W.5 deposes that accused No.4 assaulted P.W.4 on the back of his head. P.W.6 in his evidence says that accused No.4 assaulted back side of the head of P.W.4. P.W.7 does not say anything about assaulting P.W.4 by accused No.4. P.W.8 deposes that accused No.4 assaulted on the back of the head of P.W.4 by stone. P.W.9 does not say anything about assault made to P.W.4 by accused No.4.
45. Having perused the evidence of injured witnesses, which is contrary to each other and the wound certificate, except P.W.9-Mahadevasamy none of the injured persons say that the accused persons assaulted them with club. Only P.W.9, the injured has made the statement before the doctor that they were assaulted with stick, whereas the other injured witnesses say that they were assaulted with stone. It is also pertinent to note that the injured persons have not stated anything about the individual assault on them before the doctor. It is only when the injured-P.W.6 by name Prakash went to the hospital at 2.00 a.m., he has mentioned the name of accused Nos.1 to 5. The complaint is also very silent about the role of accused Nos.6 to
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46. It is also important to note that the prosecution relies upon the evidence of P.W.3 claiming that he is an eye witness to the incident. Now the question before this Court is that whether P.W.3 speaks with regard to the incident apart from the other witnesses. P.W.3 though claims that he is an eye witness, he has adduced only the general evidence before the Court and not spoken anything about the individual overt act of each of the accused persons, except stating that accused No.1 pushed P.W.1 and abused him in filthy language. That apart, he claims that the accused persons were holding club and stones in their hands. This witness was treated as hostile partly by the prosecution and his statement was put to the mouth of P.W.1 by the Public Prosecutor and he admits the same.
47. It is also important to note that P.W.3 claims that stones were pelted to his house, as a result of which, 100-150 tiles were damaged, but that is not the case of the prosecution. Whereas, the prosecution states that only 5-6 tiles were damaged. It is also pertinent to note that P.W.3 says that people at the spot were belonged to their community, who called the police over phone and the police jeep came to the spot. 30 Thereafter, the injured persons were taken to hospital in the police jeep. His evidence is contrary to the evidence of the injured witnesses who have been examined before the Court and the document-wound certificate does not disclose the fact that the police only took the injured persons to hospital. On the other hand, Ex.P12-police intimation discloses that after receiving the intimation, they went to the hospital and the statement of P.W.1 was recorded. Hence, it is clear that P.W.3, who is none other than the elder brother of P.W.4 was not present at the spot and his testimony is contrary to the evidence of other injured witnesses.
48. No doubt the injured witnesses speak about the injuries sustained by them and also the evidence of doctor- P.W.10 discloses that they went and took treatment after 2.00 a.m. In the cross-examination of the doctor-P.W.10, it is elicited that these types of injuries and the injuries found in Ex.P4 to Ex.P9 could be caused if a person falls on the hard surface. It is also his evidence that the Investigating Officer has not sent either the stone or club to obtain opinion as to whether the injuries inflicted on them could be caused with such stone or 31 club. P.W.10 also categorically admits that he did not mention in Exs.P4 to 9 that P.W.3 brought the injured persons to hospital. The very taking of the injured persons by P.W.3 to the hospital and also the very presence at the spot is also doubtful as he claims that the injured persons were taken to the hospital in the police jeep. However, none of the police witnesses say that the injured persons were taken to the hospital by them. Instead, the police went and recorded the statement of P.W.1 after receiving the intimation. The PSI, who has been examined as P.W.12 claims that based on the receipt of Ex.P12, he went and recorded the statement of P.W.1 and thereafter, he registered the case.
49. P.W.13, the Investigating Officer who conducted the investigation, in his cross-examination, admits that P.W.3 has not given any statement before him that the injured persons were taken to the hospital in the police jeep.
50. On perusal of both oral and documentary evidence placed on record, no doubt P.W.1 and P.Ws.4 to 9 have sustained injuries, but when they were taken to the hospital, they did not specify the name of the assailants. The statement 32 of P.W.5 is also general in nature with regard to mentioning the name of accused Nos.1 to 5. No doubt there were clashes between two groups and overt act allegations against each other is also not consistent but contradictory to each other. The witnesses speak about assaulting with club and stones and the same contradicts to each other, particularly, P.W.1 has not spoken anything about assault made to him with club. P.Ws.5 and 6 claim that P.W.1 was assaulted with club. P.W.1 claims that accused No.4 assaulted him with stone, but P.W.5 says that accused No.1 assaulted P.W.1 with club and it is not the case of P.W.1 that accused No.1 assaulted him with club.
51. P.W.7 deposes that accused No.1 assaulted P.W.1 with stone, as a result, he sustained injury to his nose. But P.W.1 does not say anything about the injury sustained by him on his nose when he was assaulted with stone and the same is also not his case, but his case is that he was assaulted with hand. He claims that accused No.1 fisted on his nose and his evidence is accused No.4 assaulted him with club on his leg and the evidence of each of the witnesses are contradictory to each other. In order to convict the accused, there must be credible 33 evidence before the Court and I have already pointed out that in terms of Ex.P12-intimation, an intimation was given that it was a mass assault and also the wound certificate does not disclose the name of the particular assailant who inflicted injuries to the injured persons, except stating that the assault was made with stone. No doubt, the injured persons sustained injuries. The evidence of P.W.1 and P.Ws.4 to 9 is inconsistent and the same should corroborate with the nature of the injures sustained by them and also the injuries being inflicted with particular weapon.
52. Having taken note of the appreciation of the evidence by the Trial Court, no doubt the Trial Court has made an observation that the Court has to look into the quality of evidence and not the quantity of evidence. There is no dispute with regard to the said fact. But the evidence of the injured witness must corroborate with regard to the incident as well as assault. Only the names of the accused persons has come into picture while making the statement by P.W.1. P.W.1 made allegation in complaint-Ex.P1 which is general in nature. In his oral evidence also, he made the general allegations, except the specific allegation against accused No.1 that he pushed him. 34 When the history was given immediately before the doctor when they went to hospital and intimation was given at 1.00 a.m. which was acknowledged by the police, it is mentioned as a mass assault and also it is important to note that the injured P.W.1 statement was recorded between 1.30 a.m. to 2.30 a.m. and he has also given the history of assault by stone.
53. Having taken note of the evidence available on record, which is general in nature with regard to the assault, no specific overt act allegation is made and even though specific overt act allegation has been made against some of the accused persons, those overt act is contradictory to each other. Though the injured persons say in their evidence that the particular person assaulted them, the other witnesses has given different versions and those evidence also do not tally with the injured witnesses. No doubt there was a mob attack and the injured persons have sustained injuries. When the specific overt act is not attributed, it is very difficult to accept the evidence of injured witnesses.
54. On perusal of the findings of the Trial Court, the Trial Court has not considered the evidence of each of the witnesses 35 as to whether it corroborates each other while forming its opinion that they have sustained injuries but appreciated the same, which is general in nature and has come to the conclusion. No doubt in the case of mob attack, the Court cannot expect each individual attack. At least, the individual persons who deposed before the Court with regard to the nature of the injuries should have stated the name of the assailants and also the weapon which was used to assault them. Since the same is not forthcoming in the evidence, this Court is of the opinion that the Trial Court has committed an error in appreciating both oral and documentary evidence. No doubt the prosecution witnesses speak with regard to the injuries sustained by them and in the absence of corroboration, the Trial Court ought to have given the benefit of doubt in favour of accused persons. Instead, while convicting the accused persons, the Trial Court has made the general observation with regard to the incident that had taken place and convict all the accused. No allegation against accused Nos.6 to 8 in the complaint, only while filing the charge sheet, their names are implicated.
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55. The Trial Judge in paragraph No.32 has made an observation that the versions of eye witnesses is also corroborated by the medical evidence. The eye witness is only P.W.3 and he also turned hostile partly. It is only in the cross- examination by the Public Prosecutor, the answers were elicited by putting the statement of P.W.3 to his mouth. The conclusion of the Trial Court that the eye witnesses evidence corroborates is nothing but contrary to the evidence available on record. No doubt, P.W.10 the medical officer, who examined the injured says that the when they were examined, injuries were found on their body, at the same time, he admits that those injuries could be caused if a person falls on the hard surface. It is also evident from his evidence that the stone and club were not sent to him for obtaining his opinion whether those M.Os could cause the injuries found in Exs.P4 to P9 and when such being the case, the Trial Judge would have appreciated the medical evidence also in a right perspective instead of holding that the evidence of P.W.10-medical evidence corroborates.
56. It is also important to note that in the cross- examination of the prosecution witnesses, it is emerged that 37 there was rivalry between the two groups in connection with putting up huts in the village property and some of the witnesses also deposed that police personnel were deployed at the spot and they were in the said place nearly for 7 to 8 months. When the police themselves were there in the said spot that too in the village where the huts were put up, no persons were present at the spot. Though P.W.3 claims that immediately police came to the spot and took the injured witnesses, P.W.13-the Investigating Officer categorically says that P.W.3 not made such statement before him and so also, it is not the case of the prosecution that the police went to the spot and took the injured persons to the hospital. All these factors have not been considered by the Trial Court and first of all, no discussion has been made with regard to inimical relationship as elicited from the mouth of the witnesses in connection with rivalry between the two groups. It is also important to note that the witnesses who have been examined before the Trial Court categorically states that similar type of M.O. Nos.1 to 3, 5 and 6 would be available in the village and number of witnesses have admitted the same. When such being the case and though P.W.2-spot mahazar witness, in his evidence supports the seizure of M.Os at 38 the spot, but admits he does not know the contents of Ex.P2. P.W.3 states that 100-150 tiles were damaged and he is also the signatory to Ex.P2-mahazar, the same does not inspire the confidence of the Court since the case of the prosecution is that only 5-6 tiles are damaged. P.W.2, who is the mahazar witness, categorically admits that he do not know what was written in Ex.P2, but he denies the suggestion that his signature was taken in the police station.
57. Having perused both the oral and documentary evidence placed on record with regard to assault made to P.W.1 and P.Ws.4 to 8, the evidence is contrary to each other and inconsistent and the said evidence does not support the case of the prosecution. The answers elicited from the mouth of doctor- P.W.10 is clear that such injuries could be caused, if a person falls on the hard surface, but no opinion is taken by sending the M.O. Nos.1 to 3 and 5 to ascertain as to whether those injuries inflicted on the injured witnesses were caused using stone and club. Under the said circumstances, the over all appreciation of the evidence by the Trial Court, except the general observation made in the judgment, nothing has been independently 39 discussed. Considering the evidence which is general in nature, the Trial Court has erroneously convicted the accused persons for the offences punishable under Sections 324, 427, 148 and 506-B read with Section 149 of I.P.C.
58. In so far as to the charges framed under the provisions of the Special Enactment of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, on perusal of the complaint - Ex.P1, P.W.1 has stated that when he questioned accused No.1, he abused him by uttering his caste name questioning his guts and also instigated accused No.2 and accused Nos.3 and 4 so also those accused persons abused him taking his caste name. It is also alleged in the complaint-Ex.P1 that accused No.5 abused taking his caste name and threatened his life. In order to substantiate the case of the prosecution, P.W.1 in his evidence says that accused No.1 abused taking his caste name when they came near the place of worship and warned that they will not be allowed inside. Accused No.1 also assaulted him. The evidence of P.W.1 is contrary to his own complaint, which is marked as Ex.P1 and nowhere in his 40 evidence, he says that accused No.1 instigated others to abuse them.
59. P.W.3 though says that the accused persons uttered the caste name, the very presence of P.W.3 at the time of incident itself is doubtful. P.W.4 in his evidence claims that accused No.1 abused P.W.1 taking the caste name whereas P.W.1 says that it was general utterances against all of them. P.W.4 claims that the accused persons abused P.W.1 uttering his caste name and pushed him. P.W.5 in his evidence says that when P.W.1 questioned accused No.1, he abused him by uttering his caste name and questioned them for coming and praying the god. P.W.6 in his evidence says that when P.W.1 questioned, the accused persons abused him by uttering his caste name in general and warned them not to come and pray the god. P.W.7 says that accused No.1 abused P.W.1 uttering his caste name and questioned as to why they came near the place of worship. P.W.8 says that accused No.1 abused P.W.1 uttering the caste name and questioned them as to why they came near the place. P.W.9 says that accused No.1 abused P.W.1 taking the caste name and assaulted on his face.
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60. Having taken note of both oral and documentary evidence placed on record, the evidence is inconsistent with regard to particular words uttered while abusing and each one of them have given different versions in their oral evidence. Some of them says that accused No.1 abused particularly P.W.1 and other says that he abused in general taking his caste name. There is no consistency in the evidence of P.W.1 and P.Ws.4 to
9. No doubt, the place in which the incident had been taken place is public place. When the Ganesha idol procession was going on for its immersion, the incident had taken place. In order to invoke the provision of the Special enactment, there must be an intentional insult against the persons belongs to the community particularly taking the caste name.
61. Learned counsel for the appellants/accused relying upon the decisions of the Apex Court in Gorige Pentaiah's case and Khuman Singh's case (supra) submits that if there is an intentional insult which humiliates any person within the public place, the special provisions would attract. In Khuman Singh's case (supra), it is also held that when there is no evidence to show that offence was committed only on the ground that victim 42 was a member of scheduled Castes, therefore, the conviction of the appellant/accused under Sections 3(2)(v) of the SCST Act is not sustainable.
62. Learned counsel for the appellants relying upon the judgment of the Bombay High Court in the case of Gulab Khavale v. Hiraji Ghuge and Ors reported in 2006 CRI.L.J. 3451 brought to the notice of this Court paragraph No.4, wherein it is held that it can be seen that there are several inconsistencies and contradictions in the evidence of the witnesses. All the witnesses are from the same family and are admittedly interested witnesses. The evidence of interested witnesses cannot be ignored on this count alone, what is required is that their evidence should receive assurance from the circumstances brought on record.
63. Learned counsel referring to this judgment would submit that in the case on hand also, there are inconsistencies and contradictions in the evidence of the witnesses and only one witness is examined as independent witness even though he belongs to particular community and his evidence also does not inspire the confidence of the Court since he turned hostile partly. 43 No other independent witnesses are examined before the Court with regard to the incident and specific utterance of taking caste name.
64. Learned counsel would further submit that the Bombay High Court also observed a vital omission on the part of the State which has weighed with the Trial Judge is that though the witnesses have referred to the presence of independent persons at the scene of occurrence, none of these independent witnesses, except Anil Khavale (P.W.6) is examined. Anil Khavale belongs to the same caste, but does not corroborate testimony of the petitioner and his relatives on material points.
65. Learned counsel also referring the said observation would submit that in the case on hand also P.W.3, who has been examined is none other than the brother of P.W.4 and belongs to the same community and also the incident was taken place in the public procession when they were proceeding to immerse the Ganesha idol and no other independent witness evidence has been relied upon by the prosecution.
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66. Learned counsel would submit that this judgment is aptly applicable to the case on hand as the facts and circumstances of the case is similar to the case of the judgment dealt with by the Bombay High Court. Hence, because of the failure on the part of the prosecution in examining any independent witnesses, the accused are entitled for acquittal.
67. Taking note of the principles laid down in the judgment referred supra and also taking the evidence available on record, though it is the evidence of the prosecution witnesses that the accused persons have abused the injured witnesses by taking their caste name but those evidence are inconsistent and each one of them gives different versions with regard to utterance of the words by taking the caste name. The same are not similar in nature. Despite that, it clearly shows that an incident was taken place in a mob and some of the witnesses categorically say that in the said mob, the words which have been exchanged between the parties were not audible. When such being the case and there is no intentional insult, particularly, by taking their caste name and humiliating them in the presence of general public by stating that they belong to 45 particular caste, the provisions of the special enactment cannot be invoked if the utterance of the words are inconsistent and contradictory to each other.
68. The Trial Court also while considering the case of the prosecution failed to take note of the fact that the accused Nos.6 to 8 were not at all present at the spot and no complaint was made against them and also there were no allegations against accused Nos.6 to 8 that they abused taking their caste name in the complaint. Only in the evidence, a mention has been made. When there is no recital in the complaint with regard to accused Nos.6 to 8 and the allegation has been made against accused No.5 in the complaint that he took the caste name and threatened the life, the allegation against accused Nos.2, 3 and 4 that they uttered the caste name was general in nature, there is no similarity in the evidence of these witnesses. The inconsistency in the evidence has not been discussed by the Trial Court so as to invoke Section 3 (1)(x) of the SCST Act. When there is no corroboration in the evidence of prosecution witnesses and there are material contradictions, the Court cannot convict the accused for the offences punishable under the 46 Special Enactment specifically when there is no intentional insult and the same is general in nature.
69. In view of the discussion made above, I pass the following:-
ORDER The appeal is allowed.
The judgment and order of conviction and sentence dated 20.12.2010/23.12.2010 passed in Special Case No.2/2009 on the file of VI Additional District and Sessions Judge and Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 at Mysuru is hereby set aside.
If any fine amount is deposited before the Trial Court, the same has to be refunded to the accused.
Registry to transmit the records to Trial Court forthwith.
Sd/-
JUDGE CP/MD/PYR