Karnataka High Court
State Of Karnataka vs Hemanna S/O. Basappa Dyampur on 17 August, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.2687/2012
BETWEEN:
STATE OF KARNATAKA
R/BY KOPPAL RURAL POLICE DIST: KOPPAL.
...APPELLANT
(BY SRI.RAMESH B.CHIGARI, HCGP)
AND:
1. SRI.HEMANNA S/O. BASAPPA DYAMPUR
AGE: 40 YEARS, OCC: AGRICULTURE
R/O. BASAPUR, TQ: and DIST: KOPPAL.
2. SRI.HANUMAPPA S/O. MALLAPPA SINDOGI
AGE: 37 YEARS, OCC: AGRICULTURE
R/O. BASAPUR, TQ: and DIST: KOPPAL.
3. SRI.HANUMAPPA S/O. TIPPANNA KURUBAR
AGE: 32 YEARS, OCC: AGRICULTURE
R/O. BASAPUR, TQ: and DIST: KOPPAL.
...RESPONDENTS
(BY SRI.R.M.JAVEED, ADV.)
THIS APPEAL IS FILED UNDER SECTION U/S 378(1) & (3)
OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGEMENT AND SET ASIDE THE ORDER OF ACQUITTAL
DATED 02.02.2012 PASSED BY THE SESSIONS AND SPECIAL
JUDGE, KOPPAL IN SPL.C.C.(AC)NO.84/2010 FOR THE
OFFENCES P/U/S 323, 324, 504, 506 & 355 OF IPC R/W SEC. 34
OF IPC AND U/S 3(I)(x)(xi) OF SC/ST (P.A.) ACT, 1989; AND
CONSEQUENTLY CONVICT THE RESPONDENTS FOR THE
AFORESAID OFFENCES.
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THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 10.08.2021 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The State has preferred this appeal under Section 378(1) & (3) of Cr.P.C. challenging the judgment of acquittal passed by the Sessions & Special Judge, Koppal in Spl.C.C.(AC) No.84/2010 whereby the respondents/accused are acquitted for the offences punishable under Sections 323, 324, 504, 506, 355 r/w Section 34 of IPC and Section 3(1)(x)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "SC/ST Act" for short).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial court.
3. The brief facts leading to the case are that, complainant Yallappa has registered a complaint with the 3 Koppal Rural Police Station contending that he is the permanent resident of Basapur village in Koppal Taluka and his father had five children. That Shivappa is his elder brother and he is also having elder sister by name Nagamma. The house of accused No.1-Hemanna is situated near the house of Nagamma. It is alleged that quarrels used to take place between Nagamma and accused in respect of tying cattle on the road. Four days prior to the incident, quarrel took place between the wife of Hemanna as well as Nagamma and when Shivappa had been to the house of Nagamma, by noticing the quarrel he had asked Hemanna to advise his wife not to take quarrel with his sister and his family members. It is alleged that, on 05.05.2010 at about 4.00 p.m. when Shivappa was returning from his land towards his house and the complainant was also coming to the house from his land, and when Shivappa was near the school, all the three accused persons came there and accused No.1 abused Shivappa with reference to his caste and accused No.3 caught hold the neck of Shivappa and accused No.2 4 assaulted Shivappa with chappal on the chest as well as on back. It is also alleged that, accused No.1 assaulted Shivappa with brick piece and caused injuries. When, the wife of Shivappa by name Mariyavva came for rescue, accused No.3 abused her with reference to her caste and at that time, son-in-law of the complainant and others came there and pacified the dispute. Thereafter, an Ambulance was secured and injured Shivappa was shifted to the Koppal Government Hospital and thereafter he lodged a complaint by setting law in motion. Thereafter, investigation officer undertook the investigation and he submitted the charge sheet against the accused persons. Then, the learned Special Judge has taken cognizance and accused were produced before him and initially they were remanded to judicial custody and later enlarged on bail.
4. The prosecution papers were also furnished and charge under Sections 323, 324, 504, 506, 355 r/w Section 34 of IPC and Section 3(1)(x)(xi) of the SC/ST Act are framed against the accused and they pleaded not 5 guilty. To prove the guilt of the accused, the prosecution has examined 15 witnesses as P.Ws.1 to 15 and Exs.P1 to P13 were marked along with M.Os.1 and 2. The statement of the accused under Section 313 of Cr.P.C. is recorded to enable them to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused was of total denial and they did not choose to lead any oral and documentary evidence in support of their defence. After having heard the arguments and perusing the records, the learned Sessions Judge framed the following points for consideration:
i) Whether the prosecution proves that on
5.5.2010 at about 4-30 p.m, within the limits of Koppal Rural P.S. at Basapur village, A-1 to 3 in furtherance of their common intention to commit the offence they have picked up quarrel with CW-2 Shivappa, while he returning from his land and A-1 Hemanna assaulted with brick piece to Shivappa on his head and caused injury and thus A-1 to A-3 have committed an offence punishable under section 324 r/w Sec.34 IPC?
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ii) Whether the prosecution further proves that A-3 caught hold the neck of Shivappa and A-2 Hanumappa, assaulted to Shivappa with Chappal on his chest and back and they voluntarily dis honoured him by such assault and thus A-1 to A-3 have committed an offence punishable under section 355 r/w Sec.34 IPC?
iii) Whether the prosecution further proves that accused have abused to Shivappa in the words like "¯Éà ¨ÉÆøÀÄr ¨ÁåqÀ ¸ÀƼɪÀÄUÀ£É" CW-3 Mariyawwa s "¯Éà ¨ÁåqÀ ¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß ºÀqÀw£À¯ÉÃ" and insulted and provoked to them and thus A-1 to A-3 have committed an offence punishable under section 504 r/w Sec.34 IPC?
iv) Whether the prosecution further proves that the accused threatened to the lives of CW-2 and CW-3 with dire-consequence to take away their lives and thus A-1 to A-3 have committed an offence punishable under section 506 r/w Sec.34?
v) Whether the prosecution further proves that A-1 to A-3 being non SC-ST members CW-2 Shivappa and CW.3 Mariyawwa, are Valmiki by caste which comes in S.T. and accused by knowing their caste intentionally abused them by taking their caste in the words like to CW-2 7 Shivappa as "¯Éà ¨ÉÆøÀÄr ¨ÁåqÀ ¸ÀƼɪÀÄUÀ£É" and to CW-3 Mariyawwa as "¯Éà ¨ÁåqÀ ¸ÀƼÉÃ" which is within the public view and thus accused have committed an offence punishable under section 3(1)(x) SC/ST(P.A.) Act, 1989?
vi) Whether the prosecution further proves that by uttering the words like as "¯Éà ¨ÁåqÀ ¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß ºÀqÀw£À¯ÉÃ" with an intention to outrage the modesty of CW-3 Mariyawwa who is S.T woman and thus A-1 to A-3 have committed an offence punishable under section 3(1)(xi) SC/ST Act, 1989?
vii) To what order?
5. The learned Sessions Judge by judgment dated 02.02.2012 answered all the issues in the negative and acquitted the accused/respondents. Being aggrieved by this judgment of acquittal, the State has preferred this appeal.
6. Heard the arguments advanced by the learned High Court Government Pleader for the appellant-State and the learned counsel for the respondents/accused. Perused the records.
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7. Learned HCGP appearing for the appellant- State submit that the judgment of acquittal is contrary to law and evidence placed on record. The Sessions Judge has failed to note that P.W.1 is an eye-witness, P.W.2 is the injured witness and P.W.3 is also an eye-witness as well as victim. P.W.8 is the doctor and the evidence of P.Ws.1 to 3 corroborative to each other, while P.W.8 supported the evidence and hence, the learned Sessions Judge has erred in appreciating evidence. He would also contend that the Sessions Judge has also failed to appreciate the evidence of P.W.9 who is the sister of the complainant and no proper reasons have been offered and the learned Sessions Judge has given undue importance to the irrelevant improvements and omissions. He would contend that the judgment of the trial court is erroneous, illegal and call for interference by this court. Hence, he would seek for allowing the appeal.
8. Per contra, learned counsel for the respondents has seriously objected the appeal on the ground that 9 P.Ws.1 to 3 are interested witnesses and P.W.9 is not an eye-witness. He would contend that there are lot of contradictions, improvements and omissions found in the evidence of P.Ws.1 to 3 and they were not explained. He would also contend that mahazar panch witnesses have turned hostile and except interested testimony, there is nothing on record to bring home the guilt of the accused. He would also contend that records would disclose the tendency of the complainant in filing such complaint and the trial court has appreciated the oral and documentary evidence in detail and arrived at a just decision. He would contend that the judgment of acquittal passed by the trial court does not call for any interference. Hence, he would seek for dismissal of the appeal.
9. Having heard the arguments and perusing the records, the following point would arise for my consideration:
Whether the judgment of acquittal passed by the trial court is erroneous, illegal 10 and capricious so as to call for any interference by this court?
10. The allegation of the prosecution discloses that the complaint is lodged by Yallappa and injured Shivappa is his elder brother. As per the case of the prosecution, the sister of the complainant Nagamma was residing nearby the house of accused No.1-Hemanna and they used to quarrel each other regularly in respect of tying the cattle on the road. It is also alleged that four days prior to 05.05.2010, a quarrel has taken place in the presence of Shivappa and he advised accused No.1 and his wife and his family members as well as his sister. Further, the allegations discloses that on 05.05.2010 at about 4.00 p.m., Shivappa while returning from his land to his house and the complainant was also coming to the house from his land, and near the school, accused No.1 initially picked up a quarrel with him and abused in filthy language. Then accused No.2 came there and accused No.3 caught hold of the neck of the complainant while accused No.2 assaulted by chappal on the chest and back. It is also alleged that 11 accused No.1 has assaulted Shivappa with brick on his head. Thereafter, wife of Shivappa came there and she was also abused with specific words alleged in the complaint as "¯Éà ¨ÁåqÀ ¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß ºÀqÀw£À¯ÉÃ". In the complaint, specific wordings have been uttered. But the evidence of the complainant and other witnesses give a different story. P.W.1 who is the complainant, in his evidence has deposed that, at 4.30 p.m. near school while he was returning, all the three accused persons quarreling with his brother, at that time, accused No.3 caught hold of the neck while accused No.2 assaulted him by chappal and accused No.1 assaulted him by piece of brick on his head. It is also alleged that, when Mariyaavva intervened, she was also abused with filthy language. The complainant did not re-produced the words alleged in the complaint. Very interestingly, in his cross-examination, he has given a different version that, when he went there, only accused No.1 and Shivappa were quarreling and thereafter, accused Nos.2 and 3 came there. Further, he has deposed in his cross-examination that, when he tried to intervene, 12 he was also assaulted. He admits regarding assault on him was not stated by him before the police. He also specifically asserted that before public gathered there, accused had assaulted them, which is a new story invented by him. Hence, it is evident that his evidence neither established the specific avert acts or presence of any accused. It is not in consonance with the complaint allegations.
11. P.W.2-Shivappa is another witness and according to him, the incident has taken place at 4.00 p.m. However, as per the complaint allegations, all the accused came there simultaneously, but this witness claimed that near school first accused No.1 picked up quarrel with him by abusing him with vulgar language, then accused Nos.2 and 3 joined there. He claimed that he lost consciousness due to assault and his evidence is silent regarding the assault on his wife. In the cross-examination, he has admitted regarding this incident itself a counter case is registered against him and others. He has further admitted 13 that in the counter case, they have obtained bail. His evidence is completely silent regarding assault on his wife. His cross-examination also discloses that he had earlier lodged a complaint against other persons under the SC/ST Act and subsequently got compromised. His cross- examination also disclose that, when the galata has began, the complainant was not present and he also asserts that first the complainant came there and later on accused Nos.2 and 3 came there, but the allegations made in the complaint are entirely different. In his cross-examination, he admitted that he suffered tenderness on the neck and he obtained treatment from the doctor. But no evidence is forthcoming in this regard and medical evidence is silent in this regard. In the cross-examination, he further deposed that he suffered blunt injuries and his shirt was bloodstained and banion was torn, but they were not seized by the investigating officer.
12. P.W.3 is the wife of P.W.2 and alleged to be an eye-witness as well as victim. In her evidence, she 14 deposed that after getting information that galata is going on near school, she rushed to the spot wherein the accused were abusing her husband and accused No.2 assaulted him by chappal while accused No.3 throttled his neck and accused No.1 assaulted him with brick on his head. Regarding throttling of the neck, this witness first time deposed which is an improvement and the evidence of P.Ws.1 and 2 is silent in this regard. Further, she claimed that when she intervened, accused only abused her, but she stated that accused abused her by "K ¨sÉÆøÀÄr ¤Ã£ÀÄ §A¢AiÉÄãÀÄ HgÁUÀ EzÀÄÝ ¨Á¼Éé ªÀiÁqÀÄvÉÛÃ£É K£ÀÄ". But her statement and the complaint allegations are entirely different. Her evidence is silent regarding the abusive words referred in the complaint. Hence, it is evident that the evidence of P.Ws.1 to 3 is inconsistent and contradictory and not corroborative. Further, their evidence is against the recitals of the complaint regarding specific words and the presence of accused Nos.2 and 3 at the spot. Further, their evidence also discloses that there 15 is variance in the timings. Apart from that, it is also evident that there was a counter case against the complainant and his family members.
13. P.Ws.4 and 5 are the two mahazar witnesses to Ex.P4, but both of them have turned hostile. P.Ws.6 and 7 are the seizure mahazar witnesses pertaining to chappal under Ex.P5, but they have also turned hostile. Nothing was elicited so as to impeach their evidence. P.W.9 is a circumstantial witness and admittedly she is the sister of the complainant, but not an eye-witness and her evidence does not assist the prosecution in any way. P.Ws.10, 11 and 12 are claiming to be the eye-witnesses, but all these three witnesses have turned hostile and denied the case of the prosecution. P.W.8-Dr.Sayed Mehamood who deposed that, Shivappa was brought to the hospital in the ambulance and he found injuries in the middle of the head and he has issued wound certificate as per Ex.P6. But the complainant and witnesses all along alleged that the assault was made in the middle of the forehead, but 16 medical evidence speaks different story. Further, in the cross-examination of P.W.1, it is elicited that the name of the assailants were not disclosed before the medical officer.
14. Except the evidence of P.Ws.1 to 3 and 8, there is no other material evidence and all the independent eye-witnesses have turned hostile. P.Ws.1 to 3 are interested witnesses and their evidence does not inspire confidence as there are omissions regarding specific words uttered with reference to his caste. Further, their evidence is inconsistent regarding timings and presence of accused Nos.2 and 3. As observed above, as per the case of the prosecution, there was an assault on P.W.2 on the chest and back, but the medical officer has not found any tenderness. Even there was an allegation that accused No.3 caught hold of his neck and he suffered injury to his neck, as he was feeling pain, but that was also not disclosed before the medial officer. Hence, the medical evidence does not corroborate the evidence of P.W.2. The 17 counter case is also there wherein the complainant and his family members have been prosecuted. No charge sheet was filed in the said case and this case was proceeded with. All these facts and circumstances clearly establish that the self-interested testimony of the complainant and his brother's wife and sister-in-law is not sufficient to bring home the guilt of the accused. The abusive words uttered by him are also inconsistent and medical evidence is also not completely corroborative. Under these circumstances, the prosecution has failed to bring home the guilt of the accused as all the eye-witnesses have turned hostile and even seizure was not established. Except self-interested testimony of these three witnesses who are close relatives, there is no other material evidence in this regard. Absolutely, there is no evidence to prove the offence and the averments in the evidence were completely silent regarding allegations under the provisions of SC/ST Act.
15. The learned Sessions Judge has considered all these aspects in detail and he has appreciated the oral and 18 documentary evidence in proper perspective. On re- appreciation of the evidence, it is evident that the view taken by the learned Sessions Judge is also possible and when the view taken by the learned Sessions Judge is possible, question of interfering with the said judgment of acquittal does not arise at all. Looking to these facts and circumstances, it is evident that the appeal is devoid of any merits and the judgment of acquittal does not call for any interference by this court. Accordingly, I answer the point under consideration in the negative and proceed to pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE MBS/-