Karnataka High Court
Fathima vs State Of Karnataka on 22 February, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22nd DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.2509 of 2010
BETWEEN
1. FATHIMA
W/O ANWARSAB NARANGI
AGE 42 YEARS, R/O SRIRAMNAGAR
DHARWAD
2. HUSSAINBI
W/O ABDULAJIZ GIDUNAVAR
@ M.GUDDINAVARA
AGE 53 YEARS, R/O SRIRAMNAGAR
DHARWAD
3. PARVEENBANU
W/O NOORAHMAD GULBARGA
AGE 32 YEARS, R/O SRIRAMNAGAR
DHARWAD
... APPELLANTS
(By Sri. K. L. PATIL, ADV )
AND
STATE OF KARNATAKA
REP BY VIDYAGIRI POLICE STATION
REP BY STATE PUBLIC PROSECUTOR.
... RESPONDENT
(By Sri. RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRL.A IS FILED U/S.374(2)CR.P.C BY THE
ADVOCATE FOR THE APPELLANT PRAYING TO CALL FOR THE
RECORDS IN SPL.SC/ST C.C.NO.6/2007 ON THE FILE OF
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HON'BLE II ADDL. SESSIONS SPL. JUDGE DHARWAD. ALLOW
THIS CRL.A. BY SETTING ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 11.12.2009 BY THE HON'BLE II ADDL.
SESSIONS & SPECIAL JUDGE DHARWAD IN SPL.(SC&ST)
C.C.NO.6/2007, THEREBY CONVICTING THE APPELLANTS FOR
THE OFFENCES P/U/Ss 323, 324, 355, 342, 506, R/W SEC. 34
OF THE IPC AND OFFENCES P/U/S 3(1)(10) & 3(1)(11) OF SC/ST
(PA)ACT. AND GRANT SUCH OTHER AND FURTHER RELIEF
THAT, THIS HON'BLE COURT DEEMS FIT UNDER THE
CIRCUMSTANCES OF THE CASE.
THIS CRIMINAL APPEAL BEING HEARD AND RESERVED
ON 31.01.2018 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been preferred by accused Nos.1 to 3 challenging the judgment and order of conviction and sentence dated 11.12.2009 passed by the II Additional Sessions and Special Judge, Dharwad in Special (SC & ST) CC No.6 of 2007.
2. Brief facts of the case are that in the year 2007, Smt. Sulochana, who is belonging to walmiki community which falls under the category of scheduled tribe, was residing in a house at Srirama Nagar, Dharwad. PW-3 is not cordial with accused No.3. Accused No.2 is the mother of accused No.3. Accused No.1 is the younger sister of accused 3 No.2 and all the accused were also residing at Srirama Nagar, Dharwad. PW-1-the complainant was having relationship with PW-3. In that context, all the accused in order to take vengeance towards PWs.1 and 3 on 11.04.2007 at about 2.00 pm, when complainant PW-1 was in front of her house, accused Nos.1 to 3 came there and in furtherance of their common intention to assault and humiliate her in the public view, all the accused abused the complainant in foul language with a background of the alleged illicit relationship of PW-1 with PW-3. All the accused assaulted PW-1 with hands in front of her house and thereafter they dragged the complainant near their house and while so dragging PW-1 was assaulted with a pair of chappals and was tied to a tree near the house of the accused. In the meanwhile, PW-3 arrived and he was also tied to the very same tree by all the accused persons. Thereafter, accused No.2 brought a scissors from her house and cut and removed the hair(tuft of hair) of PW-1-complainant and thereafter they also assaulted PW-3 with chappals. Accused No.2 assaulted with scissors. It is the further case of the 4 prosecution that till 4.30 pm, the complainant and PW-3 were wrongfully confined by tying them to a tree with the coir rope and they threatened them with dire consequences. It is the further case of the prosecution that all the accused knowing fully well that the complainant belongs to walmiki community, they abused her in foul language with reference to her caste and humiliated in public view.
3. On the basis of the complaint, a case was registered in Crime No.89 of 2007. After investigation, charge sheet was laid as against accused Nos.1 to 3 for the offences punishable under Sections 323, 324, 355, 342 and 506 read with Section 34 of the Indian Penal Code and also under Section 3(1)(x) and (xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Act' for short). Thereafter, the Special Court secured the accused and after hearing the learned State Public Prosecutor and the learned counsel for the accused, charge was framed. Accused pleaded not guilty and claimed to be tried. As such trial was fixed. 5
4. The prosecution in order to prove its case, got examined PWs.1 to PW-19 and got marked Exs.P-1 to P-18 and also got marked M.Os.1 to 4. Thereafter, the statements of the accused under Section 313 of the Code of Civil Procedure was recorded by putting the incriminating material as against the accused. They denied all the allegations. They did not lead any evidence on their behalf. After hearing the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment and order of conviction and sentence came to be passed whereunder the accused were convicted.
5. The main grounds urged by the learned counsel for the appellants-accused are that the impugned judgment is not sustainable and the same is contrary to law and the facts and material placed on record. He further contended that the learned Sessions Judge has not appreciated the legal nuances in their proper perspective which has resulted in substantial injustice to the appellants. He further contended that though there are number of material omission and contradiction in the evidence of the 6 prosecution. The learned Sessions Judge without considering the said fact, has passed the impugned judgment; that PWs1 to 3 are related and interested witnesses and only on the basis of the interested testimony of PWs.1 and 2, without there being any corroboration of any independent witnesses, the impugned judgment came to be passed; that the pancha and other eyewitnesses have turned hostile and have not supported the case of the prosecution; that the learned Sessions Judge has handpicked titbits from the evidence of interested witnesses and has conveniently undermined that part of the evidence which has been highlighted by the accused by wrongly convicting the accused; that though there is no evidence to substantiate the offence under Section 3(1)(x) and (xi) of the Act, the learned Sessions Judge has wrongly convicted the accused. He further contended that in order to attract the provisions of Section 3 of the Act, there must be necessary mens-rea that the act committed by the accused has been done on the ground that the victim belongs to SC community. He further contended that an intention must be there with mens-rea 7 then only the provisions of Section 3(1)(x) and (xi) of the Act are attracted. Though the evidence which has been produced is a simple case of quarrel between the two parties but without there being mens-rea, the learned Sessions Judge has wrongly convicted the accused. In order to substantiate the contention, he relied upon the decisions of this Court in the case of State of Karnataka Vs. Mahantappa and others ILR reported in 1996 KAR 2730 and in the case of Chikkappa and Others Vs. State of Karnataka reported in ILR 2001 KAR 5483. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment and order of conviction and sentence by acquitting the appellants/accused.
6. Per contra, learned High Court Government Pleader vehemently argued by contending that there is corroboration in the evidence of PW.1 along with PW-3. Keeping in view the evidence which has been adduced by the prosecution, the learned Sessions Judge has rightly convicted the accused. He further contended that though PWs.1 and 2 are related and interested witnesses, if, their 8 testimony is analyzed, their evidence is consistent and corroborative with the theory put forth by the prosecution. He further contended that there is clear cut evidence to show that the accused persons with an intention to humiliate and cause insult in the public view, dragged, abused and assaulted the complainant with chappals and thereafter the accused tied PW-1 to a tree near by their house and confined PW-1 and PW-3 from moving to any other place. That itself is sufficient to constitute the offence with which they have been charged. Looking from any angle, the appellants- accused have not made out any good ground so as to acquit them. The learned Sessions Judge after considering all the material has rightly convicted the accused and no good ground has been made out so as to interfere with the judgment and order of conviction and sentence and thereby prays to confirm the said order by dismissing the appeal.
7. In order to prove the case of the prosecution, the prosecution got examined in all 19 witnesses as PWs.1 to 19. PW-1 is the complainant, PW-2 is the minor son of the complainant, PW-3 is the husband of accused No.3 and was 9 also having relationship with the complainant. PW-4 is the Tahasildar who issued the caste certificate in respect of the complainant-PW-1 and the accused, PW-5 is the Assistant Engineer who prepared the sketch as per Ex.P-8 with reference to the scene of offence. PW-6 is the Police Constable who went to the place and saw that PWs.1 and 3 were tied to a tree and thereafter he rescued them. PWs.7 and 8 are the mahazar witnesses to Exs.P.2 and 9 respectively and have not supported the case of the prosecution and have been treated as hostile. PWs.9 to 14 are the eyewitnesses to the alleged incident and have not supported the case of the prosecution and they have been treated as hostile. During their cross-examination, nothing has been elicited so as to support the case of the prosecution. PW-15 is the Police Officer who registered the complaint and conducted part of the investigation. PW-16 is the doctor who examined the complainant and issued the injury certificate as per Ex.P-17. PW-17 is the woman Police Constable who took the complainant to the hospital. PW-18 is the Head constable who recorded the oral complaint and 10 registered a case and thereafter he filed the charge sheet. PW-19 is also a mahazar witness to Ex.P-9. He has not supported the case of the prosecution.
8. The first and foremost contention taken up by the learned counsel for the appellant-accused is that there is no evidence under Section 3(1)(x)(xi) of the Act and even the prosecution has utterly failed to prove the fact that the accused were having an intention to insult or humiliate the complainant. He further contended that a plain reading of Section 3 clearly indicates that there must be an intention in order to constitute the said offence as contemplated under law. For the purpose of brevity, I quote Section 3(1)(x)(xi) of the Act which reads as under:
"3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.-
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;11
On going through the said section and the opening wordings in the said section indicate that there must be mens rea and the object of such insult or intimidation as to humiliate. It also makes it clear that in order to constitute an offence under Section 3 of the Act, there must be evidence placed by the prosecution to show that the accused were conscious of the fact that the act so committed intending that the victim to be a SC and with that particular intention they have committed the said offence. This proposition of law has been laid down by this Court in the case of State of Karnataka Vs. Mahantappa and others quoted supra. At paragraphs 22 and 23 of the said judgment, this Court has observed as under:
" 22. There is no doubt that the victim happened to belong to the Scheduled Caste. However, there is nothing on record to show that the accused knew that she belonged to the scheduled caste. It is also not in dispute that the accused No.2 is also a member of the Scheduled Tribe. Section 3(2)(v) reads as follows:
:3. Punishments for offences of atrocities. (2) whoever not; being a member of a Scheduled Caste or a Scheduled Tribe.
xx xx xx 12
(v) commits any offence under the Indian Penal Code(45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine."
The words "on the ground that such person is a member of a Scheduled Caste" clearly implies that there must be an element of mens-rea and if there is no mens- rea with respect to the fact that the accused committed the offence against the prosecutrix knowingly she belongs to the Scheduled Caste, it would be difficult to hold that Section 3(2)(v) of the Act can be applied. It all depends on the facts of each case since there is no strict liability.
In Nathulal v. State of M.P., the Supreme Court has held as follows:
" Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication included mens rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of an offence. Mens rea 13 by necessary implication may be excluded from a statute only where it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. The nature of the mens rea that would be implied in a statute creating an offence depends on the object of the Act and the provisions thereof."
23. Since no evidence was placed before the Court that the accused were conscious of the fact that the act was committed knowing that the victim to be a Scheduled Caste, the Act will not apply to the facts of this case and the accused will have to be acquitted for an offence under Section3(2)(v) of the Act."
In the case of Chikkappa and Others Vs. State of Karnataka, Hangal Police Station quoted supra, this Court at page Nos.5497 to 5499 has observed as under:
" Moreover, the use of words " the intentional" in the opening wordings under Section 3(1)(x) indicate that there must be mens-rea and the object of such insult of intimidation "to humiliate". As such, if the entire picture of the incident as alleged by the complainant is taken into account, prima-facie it appears to me that it was a simple case of quarrel between two parties regarding taking of water and as in fact admitted by the complainant himself, this quarrel was going on for sometime, it appears that on the date of incident it burst 14 into further action by threats, abuses and obstruction on the part of the accused including the alleged assault.
It is also to be noted that the specific words "in a place within public view" indicates that the Act of intentional insult or intimidation with an intent to humiliate must be caused in a place within public view. It is well settled that as in the case of defamation, mere indication of defamatory words by -a letter between two parties interse by itself would not amount to defamation unless there is publication, meaning thereby bringing it to the notice such insult or defamatory statement to the knowledge of others or public. Similarly, in the present case, the humiliation in my view must be in a place within public-view. If a person is abused and even humiliated in a close confined place where public had no access or no public was present, then, taking into consideration, the specific words, it may not, in a given case amount to commission of offence under Section 3(1)(x) of the Act, as observed by this Court in the case of CHANNEGOWDA vs. STATE followed in CHANDRA POOJARI vs. STATE.
Taking into consideration all these aspects in detail and on detailed considerations of various pronouncements referred to above by different High Courts, in my view, in spite of bar under Section 18 of the Act for invoking provisions of Section 438 Cr.P.C., it is still open to this Court to see whether there is prima facie case made out by the complainant, by just looking into the complaint itself. If there is no prima facie material to hold 15 that offence under Section 3 of the Act is committed, then, in my view, the bar under Section 18 of the Act cannot be invoked and in such event the case cases it becomes regular case under Section 435 Cr.P.C. and nothing more.
On entire consideration of the material allegations in the present case in my view, in the absence of specific averments in the complaint itself, (a) That the petitioner accused not belonged to SC or ST; (b) In the absence of any material to show that the intentional insult or intimidation was only with an intent 'to humiliate' and (c) Such intentional insult or intimidation "to humiliate" was done in a place within public view, it can be safely held at this stage that there is no material to prima facie hold that the petitioners have committed an offence under Section 3(1)(x) of the Act and as such, this court can consider the application under Section 438 Cr.P.C. filed by the petitioners in spite of bar under Section 18 of the Act."
Keeping in view the above proposition of law, let me consider the evidence which has been led by the prosecution in order to establish its case.
9. On perusal of the entire evidence of the prosecution, the only evidence available before this Court is that of PWs.1, 2 and 3, as the remaining witnesses have not supported the case of the prosecution. By giving my 16 conscious and careful attention to the evidence of PW-1- compainant, she has deposed that accused Nos.1 to 3 are Mohammedans and thereby are not the members of the scheduled caste and scheduled tribe and accused No.1 came there and dragged her holding her hair to her house at Sriram nagar. At that time she was assaulted by accused No.1 with hands. After dragging her to the door of house of accused No.1, all the accused assaulted her with chappals on her face and all over her body. Thereafter, accused No.1 tied her to a nearby tree with a rope. She has further deposed that the above said accused have committed the act and accused No.1 abused her saying Soole, Hadaragitti, hadasu. Even on perusal of the evidence of PW-2, he has also not uttered a single word to show that the accused persons have abused and assaulted PW-1 complainant with an intention to insult, or intimidate or to humiliate the complainant by taking the name of the caste. So also PW-3, who came later to the place of incident, has also reiterated the evidence of PW1-complainaint. By looking into the evidence, prima facie, it appears to me that it was a simple 17 case of quarrel between the two parties with regard to illicit relationship of PW1 and PW-3. It also appears that on the date of the incident, only with that particular intention, the accused have assaulted and tied the complainant and PW-3 to a tree. There is material to show that the accused caused injuries to PWs.1 and 3 and have caused hurt and the accused have committed the offence under the Indian Penal Code. Insofar as the evidence in respect of the offence under Section 3(1)(x)(xi) read with Section 34 of the IPC is concerned, there is no iota of evidence to connect the accused to the alleged crime in order to convict the accused under the provision of the Act that the accused were conscious of the fact that the act was committed knowing that the victim to be a scheduled caste and there must be necessary mens rea that the act committed by the accused has been done on the ground that the victim belongs to SC community. If there is no evidence forthcoming from the prosecution that the accused were having knowledge that the victim belong to the said community and the criminal act was done on the ground that the victim belongs to SC then 18 it would not be permissible to invoke the provisions of the Act.
10. By careful and conscious consideration of the material facts and circumstances of the case, there is no such material produced by the prosecution to bring home the guilt of the accused under Section 3(1)(x)(xi) of the Act. In that behalf the trial Court has not properly appreciated and applied the evidence which had been produced by the prosecution. The trial Court has erred glaringly with regard to convicting the accused under the Act.
11. So far as the offence under Sections 323, 324, 355, 342 and 506 read with Section 34 of the IPC is concerned, there is ample material to connect the accused and even nothing worthwhile is brought on record during the course of cross-examination to help that the accused have not involved in the alleged crime and even during the course of arguments, learned counsel for the appellants has also not given much stress upon these aspects.
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12. Looking from any angle, there is some material so far as the aforesaid Sections are concerned and the trial Court has rightly come to the conclusion and has convicted the accused under the aforesaid Sections.
13. Keeping in view the above said facts and circumstances, as discussed by me above, the appeal is allowed in part. The appellants/accused are acquitted for the offence punishable under Section 3(1)(x)(xi) of the Act and the judgment and order of conviction and sentence passed by the trial Court insofar as Sections 323, 324, 342, 355 and 506 read with Section 34 of the IPC, is concerned, is confirmed.
The appellants are entitled to set off under Section 428 of Code of Criminal Procedure and out of the total fine amount, 50% is ordered to be paid to PW-1. Insofar as fine deposited under Section 3(1)(x) and (xi) of the Act is concerned, the same is ordered to be refunded to the accused. The Trial Court is directed to issue the modified warrant to serve the sentence by the accused. M.Os. 1 to 4 20 shall be disposed of in accordance with law after the appeal period is over.
Sd/-
JUDGE Kmv