Bangalore District Court
The State Represented By vs A1. Smt.Suvarna on 18 January, 2023
KABC010089992016
IN THE COURT OF THE LXX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE, AT
BENGALURU (CCH. No.71)
Dated this the 18th day of January, 2023.
Present;
SRI. PRAKASH.V., B.A(L)., LL.B.
LXX Additional City Civil and Sessions Judge
and Special Judge, Bengaluru.
Spl.C.No.173/2016
COMPLAINANT: The State represented by
Malleshwaram Police Station,
Bengaluru.
(Rep.by Special Public Prosecutor).
-V/s-
ACCUSED: A1. Smt.Suvarna
W/o Vijayendra Rao
A2. Chethan Kumar
S/o Vijayendra Rao,
Both are residing at No.6,
'A' Block, K.C.General Hospital
Quarters, Malleshwaram, Bengaluru City
(Rep.by Sri.S.V.K., Advocate).
1. Date of commission of offence : 29-08-2015
2. Date of report of Offence : 03-09-2015
3. Name of the Complainants : Dr.Rameshbabu &
Dr.Vijayalakshmi
4. Date of commencement of : 07-03-2019
recording of evidence
5. Date of closing of evidence : 25-08-2022
2
Spl.C.No.173/2016
6. Offences Complained are : U/sec.323, 504, 506 r/w
34 of IPC and Sec.3(1)(x)
of SC and ST (Prevention
of Atrocities) 1989.
7. Opinion of the Judge : Accused found not guilty
JUDGMENT
ACP, Malleshwaram Sub-Division, Bengaluru has submitted Charge-sheet against the accused No.1 and 2 for the offences punishable under Section 323, 506 r/w 34 of IPC and Sec.3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The brief facts of the prosecution case is that, on 29-08-2015 at about 1.30 p.m., in the quarters of K.C.General Hospital situated within the jurisdiction of Malleshwaram Police Station, the accused No.1 and 2 in furtherance of their common intention have picked up quarrel with CW1 and CW2 in connection with throwing of coconut leaves across the gate of their house and abused in filthy language with reference to their caste, assaulted them by means of hands and also caused threat to take away their lives. Accordingly, the complainants by name 3 Spl.C.No.173/2016 Dr.Vijayalakshmi and Dr. Ramesh have lodged joint complaint before the SHO, Malleshwaram police Station. On the basis of said complaint, a case has been registered in Crime No.264/2015. The Investigating officer had visited the place of incident, prepared the Spot Panchanama, recorded the statement of witnesses, collected the report regarding the caste of the accused as well as complainant and filed charge sheet after completing investigation.
3. During the course of investigation, the accused No.1 and 2 have voluntarily surrendered before the learned VII ACMM, Bengaluru and got enlarged on bail. Initially, the Police Sub-Inspector of Malleshwaram Police Station, Bengaluru has submitted Charge-sheet against the accused No.1 and 2 for the offences punishable under Section 323, 506 r/w 34 of IPC before the learned VII ACMM Court, Bengaluru. After filing of charge sheet by ACP, this court took the cognizance of the offence and issued summons to the accused persons. On 4 Spl.C.No.173/2016 service of the same, the accused No.1 and 2 appeared before this Court and they got enlarged on bail. The charge sheet copies were furnished to the accused as contemplated under Section 207 of Cr.P.C. Heard before the charge. As there was sufficient materials available against the accused, charge was framed for the offences punishable under Section 323, 504, 506 r/w 34 of IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes Act, 1989, read over and explained to the accused in vernacular language and they pleaded not guilty and claimed to be tried.
4. To bring home the guilt of accused the prosecution has got examined 10 witnesses as P.W.1 to P.W.10, got exhibited 10 documents as per Ex.P.1 to Ex.P.10 and by confrontation Ex.D1 is marked. The statement of the accused u/sec 313 was recorded, read over and explained to the accused in vernacular language and the accused have denied all the incriminating evidence and they did not choose to lead defence evidence on their behalf. 5
Spl.C.No.173/2016
5. Heard the arguments of sides and perused the materials available on record. The counsel for accused has filed written arguments.
6. The following points would arise for the determination of this Court are as follows;
POINTS
1) Whether the prosecution proves beyond all reasonable doubt that on 29.08.2015 at about 1.30 p.m., in the Quarters of K.C.General Hospital, the accused No.1 and 2 in furtherance of their common intention have picked up quarrel with CW1 and CW2 and voluntarily caused hurt by means of hands and thereby committed an offence punishable under Section 323 of IPC?
2) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, the accused No.1 and 2 in furtherance of their common intention have intentionally insulted and thereby gave provocation to 6 Spl.C.No.173/2016 CW1 and CW2 intending that such provocation will cause the said CW1 and CW2 to break the public peace and thereby committed the offence punishable under Section 504 r/w 34 of IPC?
3) Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, the accused No.1 and 2 in furtherance of their common intention have criminally intimidated by threatening the CW1 and CW2 with injury to their person with intent to cause alarm to them and thereby committed the offence Punishable under Section 506 of IPC?
4) Whether the prosecution proves beyond all reasonable doubt that aforesaid date, time and place, the accused persons are not being the members of SC/ST, intentionally insulted/intimidated with intent to humiliate the CW1 and CW2, who are the members of Scheduled Caste in a place within the public 7 Spl.C.No.173/2016 view and thereby committed an offence punishable under Section 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act?
5) What order?
7. My findings to the above points are as follows;
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : In the Negative Point No.5 : As per final order, for the following;
REASONS
8. POINT No.1 to 4: These points are inter-linked with one another, hence, I took up these points together for common discussion to avoid the repetition of facts and evidence. It is the definite case of prosecution that, on 29-08-2015 at about 1.30 p.m., in the quarters of K.C.General Hospital situated within the jurisdiction of Malleshwaram Police Station, the accused No.1 and 2 in furtherance of their common intention have picked up quarrel with CW1 and CW2 in connection with 8 Spl.C.No.173/2016 throwing of coconut leaves across the gate of their house and abused in filthy language with reference to their caste, assaulted them by means of hands and also caused threat to take away their lives.
9. To bring home the guilt of the accused, the prosecution has examined as many as 10 witnesses. PW2-Dr.Vijayalakshmi and PW1-Dr.Ramesh Babu are said to be the victims and complainants, PW5- Smt.Kamala Hadimani and PW3-Narayanaswamy are said to be eye witnesses and also attesting witnesses to the spot panchanama, PW4-Dr.Suma and PW8-Dr.Mohan, Medical officers of K.C.General Hospital said to have issued wound certificates of CW1 and CW2, PW6-Gopalaswamy is the then Tahasildar of Bengaluru North said to have issued report regarding the caste of accused persons as well as CW1 and CW2, PW7-H.V.Venkatachalaiah, the then PI of Malleshwaram Police Station said to have handed over the case file on the basis of 2 nd complaint lodged by the complainant after obtaining the permission of the Court, PW9- 9 Spl.C.No.173/2016 H.R.Srinivasaiah, the then PSI of Malleshwaram Police Station is said to have registered the case after obtaining the permission of the Court and filing of charge sheet before VII ACMM, Bengaluru and PW10-Arun R Naik, ACP of Malleshwaram Sub- Division is the investigating officer in this case.
10. On careful perusal of the materials available on record it appears to me that, the total denial is the defence of accused. In addition to that they have also taken further contention that the CW1 has foisted false case against them due to filing of complaint filed by accused No.1 in Crime No.265/2015 which is pending before this Court in Spl.C.No.1132/2019. On the background of above defence taken up by the accused, the burden is heavily lies on the prosecution to connect the accused persons for the alleged offence. Whether the prosecution succeeded in establishing the guilt of accused or not is to be discussed. Hence, it is just and necessary to go through the oral and documentary evidence placed on record. 10
Spl.C.No.173/2016
11. P.W.1-Dr.Ramesh Babu is the complainant, who in his chief examination deposed that he belongs to 'Madiga' community. He know the accused persons and they belongs to upper caste and the accused persons are aware about his caste. He and accused persons are residing in K.C.General Hospital quarters. The accused No.1 is the Staff Nurse working at K.C.General Hospital and accused No.2 is her son. He along his wife and children are residing in his house. On 29.08.2015 when he was on duty in K.C.General Hospital and at 1.30 p.m., he came back to the house to have lunch, at that time the accused No.2 was throwing coconut leaves across the gate of his house. At that time he along with his wife questioned the accused No.1 and 2. The accused No.2 assaulted him by means of hands by holding his shirt collar, abused in filthy language and caused threat to take away his life. The accused No.2 came to the said place and both the accused have abused him in filthy language as " ಬಬಬಳ ಮಗನಬ, ಸಬಳ ಮಗನಬ, ಹಬಲ ಸಬಳ ಮಗನಬ, ಮದಗ ಸಬಳಮಗನಬ, 11 Spl.C.No.173/2016 ಎಲಲದಲಬಬ ಕಕರರರರರ ಬಲದದರ" and both the accused have also assaulted by means of hands on the head and back of his wife and dragged his wife by holding her hair tuft. The accused No.2 scratched his both hands due to which he sustained injury on left index finger. One Kamalamma and Narayanaswamy have pacified the quarrel and on the very same day he along with his wife went to Malleshwaram Police Station and lodged complaint as per Ex.P.1. He further stated that at that time of lodging complaint, he has not written the particulars with regard to specific words uttered by accused persons to insult him by taking the name of caste. The police have not registered the FIR against the accused No.2. Hence, he again approached the Malleshwaram Police and police have not included the name of accused No.2 inspite of his request. Hence, he approached SC/ST Cell and lodged complaint on 08.10.2015. On 04.12.2015 the Malleshwaram Police have called him to the Police Station and informed about the complaint lodged 12 Spl.C.No.173/2016 before the SC/ST Cell. Thereafter, he again lodged complaint and said complaint is also marked before this Court as per Ex.P.2. He further deposed that on 30.08.2015 he had taken treatment in the K.C.General Hospital and his wife has taken treatment on 31.08.2015 and due to the assault his wife has sustained injury on her right ear, left shoulder and he sustained the scratch injury on both the hands and also injury to his left hand index finger. He further deposed that on 05.09.2015 the police have prepared spot panchanama at the place of incident.
12. During the course of cross-examination of defence counsel it was elicited from his mouth that, he is residing in the K.C.General Hospital quarters since 2012, his quarters situated in 'C' Block and the accused persons are residing infornt of his quarters. He admits the existence of 20 feet road in between his quarters and quarters of the accused. He admits about the existence of two coconut trees inside his compound. He admits that coconut leaves will not 13 Spl.C.No.173/2016 fall infront of the house of accused persons. He pleads ignorance about the appointment of accused No.1 as co-ordinator of 'Swaccha Bharath Abhiyana'. He denied the suggestion that his wife used to throw the coconut leaves infront of the backside gate of accused house. He denied the suggestion that when the accused No.1 requested not to throw the coconut leaves, he along with his wife assaulted the accused No.1 and 2. He denied the suggestion that when he had been to the police to lodge complaint, the police issued NCR. The signature appearing on NCR is admitted by this witness and said NCR was marked before this Court as Ex.D1. He admits that the police have registered the case after obtaining permission from the Court. He had received the copy of the FIR on 14.09.2015. He admits that there exist 50 quarters near the place of incident. He denied the suggestion that he had created the wound certificate with the assistance of Dr.Suma and Dr.Mohan. He admits that on the basis of complaint lodged by him and 14 Spl.C.No.173/2016 his wife, the police have submitted charge sheet before the Court of VII ACMM, Bengaluru. He admits that the Ex.P.2/Complaint was lodged after lapse of 97 days.
13. P.W.2-Dr.Vijayalakshmi in her chief-examination deposed that PW1 is her husband. She and her husband are belongs to 'Madiga' Community. The accused persons belongs to 'Lingayat' community. She along with her husband and children are residing in the K.C.General Hospital Quarters. The accused No.1 is working as Nurse in K.C.General Hospital. Accused No.2 is son of accused No.1. The accused persons are residing infornt of their quarters. She is working as a Dentist in the private hospital. On 29.08.2015 at 1.30 p.m., her husband came to the house to have lunch, at that time the accused persons are throwing the coconut leaves infornt of their gate, she informed the said fact to her husband. Immediately, her husband questioned the accused persons, at that time accused No.2 assaulted her husband by holding his shirt collar 15 Spl.C.No.173/2016 and also abused by saying that "ಮದಗ ಸಬಳ ಮಗನಬ, ಹಬಲಯ ಸಬಳ ಮಗನ, ಬಬಬಳಮಗನಬ, ನಬವ ಇಲ ಬಲದದ ರಬರಕಬಲಡದ ಹಬಲಸದ ಮಡದತತದರ, ಹಬಲಯ ನನನ ಮಕಕಳ". Further he assaulted by means of hands and when she intervened to pacify the quarrel the accused No.1 caught hold her and dragged by saying that "ಮದಗಳದ, ಹಬಲಯಳಬ, ಸಬಳ". Both the accused have caused threat to take away their lives and due to assault made by the accused she sustained injury on her right cheek and also received pain on her left hand and her husband sustained scratch injury on both hands. One Narayanaswamy and Kamala have pacified the quarrel. Thereafter, they went to police station and lodged complaint. Since the husband of accused No.1 is working at Malleshwaram Police Station, the police have refused to receive the complaint and police have made them to approach the police station upto 03.09.2015. On 03.09.2015 the police have received the complaint and prepared the spot panchanama. She identified her signature on Ex.P3/Spot panchanama. 16
Spl.C.No.173/2016
14. During the course of cross-examination of defence counsel, it was elicited from her mouth that in order to reach her house, she has to cross four houses. Said four houses are belongs to one Rasheed, one Nurse and one sister. She admits that no coconut trees were situated inside the compound of accused persons. She denied suggestion that she used to throw the coconut leaves inside compound of accused persons. She pleads ignorance about appointment of accused No.1 as co-ordinator under 'Swaccha Bharath Abhiyana'. She denied the suggestion that she and her husband have picked up quarrel with accused persons. She admits that the particulars about caste based attack has not mentioned in the Ex.P.1/complaint.
15. P.W.5-Smt.Kamala Hadimani in her chief-
examination deposed that PW1 and PW2 are her son in law and daughter and they belongs to Scheduled Caste community. On 29.08.2015 she was in the house of her daughter, at about 1.30 p.m., her son in law came to the house to have 17 Spl.C.No.173/2016 lunch, the accused No.2 had thrown the coconut leaves inside the compound and her daughter and son in law have questioned the act of the accused and at that time, accused No.2 assaulted her son in law by holding his shirt collar and also assaulted her daughter on her cheek. The accused No.2 abused her son in law by saying " ಸಬಳ ಮಗನಬ, ಬಬಬಳಮಗನಬ, ಹಬಲಯ, ಮದಗ" and thereafter she has taken them to the house.
16. During the course of cross-examination on defence counsel she admits that coconut trees were situated inside the compound wall of her son in law and coconut leaves will not fall infront of the house of accused persons. She denied suggestion that as on the date of incident she was not present at the place of incident.
17. P.W.3-Narayana Swamy in his chief-examination deposed that he know the PW1 and PW2 and they belongs to Scheduled Caste. He is working as driver in the Finance Secretary office and residing in the 18 Spl.C.No.173/2016 Nandini Layout quarters. He developed intimacy with PW1 as PW1 used to come to the office Financial Secretary Secretary. He went to K.C.General Hospital for treatment. At that time the PW1 was went to house to have lunch. Thereafter, he came near the quarters of PW1 wherein he found that the accused persons have picked up quarrel with PW1 and PW2. When PW1 questioned the act of the accused persons in throwing coconut leaves infront of the house of PW1, both the accused persons have abused the PW1 and PW2 by saying "ಸಬಳ ಮಗನಬ, ಬಬಬಳಮಗನಬ, ಹಬಲಯ ಮದಗ". Accused No.2 assaulted PW1 by means of hands. The accused No.1 was assaulted when she intervened to pacify quarrel. He along with one lady medical officer pacified the quarrel. Both the accused persons have threatened to take away the lives of PW1 and PW2. Thereafter, he camback from the said place as he was not feeling well. The PW1 sustained scratch injuries on her both hands and PW2 sustained scratch injury on the right cheek and 19 Spl.C.No.173/2016 received pain on the left shoulder. On 03.09.2015 the police have called him to the police station and he went to the said place and PW2 had shown the place of incident to the police and police have prepared the panchanama. On 09.12.2015 he had given statement before the ACP.
18. During the course of cross-examination of defence counsel he admits that he developed intimacy with PW1 when he used to go to K.C.General Hospital along with his mother and parents of one Ajay Seth. Further it was elicited that, he is working in the Financial Department and his office is situated in the 2nd floor of Vidhana Soudha. He admits that there exist Primary Health Centre in Vidhana Soudha which was set up to treat the employees working in the Vidhana Soudha. He admits that Physician is available in the said primary Health Centre. He admits that PW1 has not giving treatment in his house. He admits that number of medical officers are working in the K.C.General Hospital. He admits that he had obtained out 20 Spl.C.No.173/2016 patient receipt and same was not produced before the Police. It was further elicited that he reached the house of PW1 at 1.45 p.m. Further it was elicited that he was not taken treatment from PW1 and went to private hospital. He admits that he has not taken permission from his higher official when he had been to the place of incident at that time of preparation of spot panchanama.
19. P.W.4-Dr.Suma, the Medical officer in her chief-
examination deposed about treating PW2 and issuance of wound certificate as per Ex.P.4 and she identified her signature on the same.
20. P.W.8-Dr.J.Mohan, the then Medical officer of K.C.General Hospital, in his chief-examination deposed about giving treatment to PW1.
21. P.W.6-Gopalaswamy, the then Tahasildar of Bengaluru North Taluk in his chief-examination deposed about issuance of reports regarding the caste of accused persons as well as PW1 and PW2 21 Spl.C.No.173/2016 as per Ex.P.5 to Ex.P.8. This witness identified his signatures on the same.
22. P.W.9-H.R.Srinivasaiah, the then PSI of Malleshwaram Police Station, who in his chief- examination deposed about registration of case after obtaining permission from the Court, preparing of Spot panchanama, recording of statement of witnesses, collecting of wound certificate and filing of charge sheet before learned VII ACMM Court, Bengaluru.
23. P.W.7-H.V.Venkatachalaiah, the then PI of Malleshwaram Police Station deposed about receipt of 2nd complaint from CW1 and handing over of case file to the ACP of Malleshwaram Sub-Division for further investigation.
24. P.W.10-Arun R Naik, the then ACP of Malleshwaram Sub-Division in his chief examination deposed about recording of statement of witnesses, collecting of reports regarding caste of PW1 and PW2 as well as 22 Spl.C.No.173/2016 accused persons and filing of charge sheet after completing investigation.
25. Upon careful perusal of materials available on record it is clearly discloses that the evidence of PW1 to 3 and 5 are available on record to consider the allegation of prosecution regarding voluntarily causing hurt, intentional insult, criminal intimidation and intentional insult or humiliation by taking the name of the caste of PW1 and PW2. In order to prove the above aspect, the evidence of PW1 to PW3 and PW5 plays very important role.
26. The learned Special Public Prosecutor appearing for the State would submit that, the evidence of PW1 and PW2 is corroborated with the evidence of PW3 and PW5 and same is sufficient to prove the commission of offence by the accused persons and accordingly prayed for convict the accused persons.
27. Per contra, the learned counsel for accused would submit that, the evidence of PW1 to PW3 and PW5 is not corroborated with each other and there is a 23 Spl.C.No.173/2016 material contradiction in their evidence. The PW1 and PW2 have foisted a false case against the accused persons as a counter blast to the case filed by the accused No.1. The witnesses examined before this Court are all interested witnesses and their testimony cannot be considered. Accordingly, prayed for acquit the accused persons.
28. On perusal of the oral evidence of the prosecution witnesses, it is clearly discloses that the prosecution has examined two victims and two eye witnesses before this Court. Before going into the discussion on the other aspect of the matter, it is just and proper to go through the contents of the Ex.P.1/complaint for better appreciation of the facts of this case which reads as follows;
"With reference to above, we the
undersigned Dr.Ramesh Babu, Senior
Specialist in K.C.General Hospital and Dr.Vijayalakshmi bring your kind notice that one son of Suvarna, Staff Nurse of K.C.General Hospital and Suvarna assaulted me and my husband with vulgar and unparliamentary words in K.C.General 24 Spl.C.No.173/2016 Hospital Quarters at 2.00 p.m. Please take action and do needful".
29. On combined reading of above averments made in the Ex.P.1/complaint it is crystal clear that PW1 and PW2 have filed joint complaint before the police wherein they have made allegation against accused No.1 and 2 stating that the accused No.1 and 2 have assaulted them and abused in vulgar and unparliamentary words. In the Ex.P.1/complaint PW1 and PW2 have not given particulars about the alleged assault made by accused No.1 and 2 as to whether the said assault was made with weapons or with hands. Further, the particulars of alleged vulgar and unparliamentary words said to have been used by the accused persons have not been stated. The record discloses that after receipt of Ex.P.1/complaint, the concerned police have registered the case in NCR No.810/2015 on 29.08.2015. Subsequently, after obtaining the permission from learned Magistrate they have 25 Spl.C.No.173/2016 registered case in Crime No.264/2016 on the file of Malleshwaram Police Station.
30. It is important to note that, initially the PSI of Malleshwaram Police station has conducted investigation in the matter and submitted charge sheet before the learned VII ACMM Court, Bengaluru. The learned VII ACMM took the cognizance of the offence and registered the case against the accused No.1 and 2 in CC No.26056/2015 and also issued summons to the accused. The records further discloses that on 04.12.2015, the PW1 again approached the Police Inspector of Malleshwaram Police Station and lodged his written complaint as per Ex.P.2. Subsequently, the ACP, Malleshwaram Sub-Division had conducted further investigation in the matter and submitted charge sheet before this Court for the offence punishable u/sec.323, 506 r/w 34 of IPC and Section 3(1)(x) of Scheduled castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989. 26
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31. By virtue of filing Ex.P.2/complaint by the PW1 before the Police, the jurisdiction of this Court was invoked and in the said 2nd complaint the PW1 has made an allegation against accused stating that the accused persons have intentionally insulted with intent to humiliate them by taking the name of caste. For better appreciation of the facts of this case, it is just and proper to extract the contents of Ex.P.2/complaint which reads as follows;
"ಮಬಲಕಲಡ ವಷಯಕಕ ಸಲಬಲಧಸದಲತ ತಮಮ ಲ
ಪಪರರಸಕಬಳದ
ಳ ವದಬನಲದರ, ನನದ ಡ.ರಮಬಶ ಬಬದ,
ಹರಯ ತಜಜ ಮತದತ ನನನ ಪತನಯದ
ಡ.ವಜಯಲಕಮಬ(ದಲತವವದದ) ನವ ಪರಶಷಷ
ದ
ಜತಯವರಗದದ ಮದಗ ಜನಲಗಕಕ ರಬರರದತತಬವ.
ವವತತಯಲ 22(ಇಪಪತತರಡದ) ವಷರಗಳಲದ ಪಪಮಣಕ
ರಬವಯನದ
ನ ಮಡದತತದವ.
ನನದ ಬಲಗಳಬರನ ಕ.ಸ. ಜನರಲ ಆಸಪತಪಯ ವಸತ ಗವಹದಲ ಸದಮರದ ಮಬರದ ವಷರಗಳಲದ ನನನ ಪತನ ಹಗಬ ಮಕಕಳ ಜಬತ ವಸ ಮಡದತತದನ.
ದನಲಕ 29/8/2015 ರಲದದ ಮದದಹನ ಸದಮರದ 1.45-2 ಗಲಟಯ ಸಮಯದಲ ನನದ ಊರ ಮಡದತತದಗ, ಕ.ಸ.ಜನರಲ ಆಸಪತಪಯಲ ಸಷಫ ನರರ ಹದದಯಲ ಕಲಸ ಮಡದತತರದವ ಶಪಬಮತ ಸದವರರ ಹಗಬ ಇವರ ಪತ ತ ಚಬತನ ಕದಮರ ಎಲಬದವವರದ ನನನ ಮನಯ ಗಬಟನ ಅಡಡವಗ ತಲಗನ ಗರಯನದ ನ ಹಕದತತದದರದ. ಊರ ಮಡದವದನದ ನ 27 Spl.C.No.173/2016 ಬರದ ಷ ಓಡ ಹಬಬಗ ಇದನದ ನ ಪ ಪಶನಸದಗ ನನನ ಮಬಲ ಶಪಬ ಚಬತನ ಕದಮರ ದವಹಕ ಹಲ ನಡಸರದತತರ. ಈ ಬಗರ ನನನ ಪತನಯದ ಶಪಬಮತ ವಜಯಲಕಮಬ ಜಗಳ ಬಡಸಲದ ಬಲದಗ ಇವರ ಮಬಲಯಬ ದವಹಕ ಹಲ ನಡಸರದತತರ.
ತಯ ಮಗ ಇಬಬರಬ ಹಲ ಮಡರದವದಲಲದಬ ಜತನಲದನ ಮಡ ತಬರ ಕರಷದದ ಅವಚದ ಶಬಬಗಳನದ ನ ಬಳಸ ದಜರನದ ಎಸಗರದತತರ. ಇದರಲದ ಮನಸಸ ಗ ತದಲಬ ಆಘತ ಉಲರದ ಮಡದತತದ. ಇದರ ಬಗರ ನವ ಮಲಶಕರಲ ಪಲಬರ ಠಣಯಲ ಅಲದ(29/08/2015) ರಲದದ ದಬರದ ದಖಲದ ಮಡದತತಬವ. ಆ ದಬರದ ಆಲಗಲ ಭಷಯಲ ಬರಯಲಗತದತ-assault & abuse with vulgar and unparliamentary words-ಸಬಳ ಮಗ, ಬಬಬಳ ಮಗ, ಬದಸಡಕ ಅಲತ ಹಗಬ ಹಬಲಯ ಮದರದ ಎಲಲಲದಲಬಬ ಬಲದದ ಕಕರರರ ಗ ರಬರಕಬಲಡದರಲದದ ಜತನಲದನ ಮಡರದತತರ. ಈ ಶಬರಗಳನದ ನ ನನದ ಠಣಯಲ ಪಯರದದ ನಬಡದ ದನ ನಮಬದಸರಲಲಲ. ಈ ಬಗರ ಸಬಕತ ಕನಬನನ ಕ ತಮ ಕವಗಬಳಳಬಬಕಗ ನಮಮ ಲ ವನಲತ".
32. On combined reading of the contents of Ex.P.2/complaint it is clearly discloses that, the complainant/PW1 has given particulars about the date and time of the alleged incident and also the allegation against the accused No.1 and 2 stating that both the accused tried to throw the coconut leaves infront of their gate. When he rushed to the 28 Spl.C.No.173/2016 spot to question the act, the accused No.2 physically assaulted and his wife was also assaulted when she intervened. Further both the accused have abused in filthy language by saying that "ಸಬಳ ಮಗ, ಬಬಬಳಮಗ, ಬಬಸದಡಕ " and intentional insulted by saying "ಹಬಲಯ ಮದರದ".
33. As I have already stated above, the Ex.P.2/complaint was lodged before Police Inspector, Malleshwaram Police Station on 04.12.2015 which is after the lapse of 96 days from the date of alleged incident. In the Ex.P.2/complaint, the delay in filing the said complaint has not been mentioned. The Ex.P.2/complaint was filed after filing of charge sheet by the PSI of Malleshwaram Police Station. On careful perusal of the averments made in the Ex.P.1/complaint which was filed before the Police at the earliest point of time, the complainant has failed to mention about the alleged filthy words said to have been used by the accused No.1 and 2 including the caste based attack on their part. Even the Ex.P.1/complaint was lodged after one day from 29 Spl.C.No.173/2016 the alleged incident. There is no satisfactory explanation from the PW1 with regard to delay caused in lodging complaint.
34. PW1 in his chief-examination has deposed that the accused No.2 assaulted him by means of hands by holding shirt collar and also abused in filthy language and threatened to take away his life. The accused No.1 has also abused in filthy language and threatened to take away his life. Both the accused persons have assaulted his wife by means of hands and dragged by holding her hair tuft. The accused No.2 scratched his right hand. These facts are not mentioned in the Ex.P.1 as well as Ex.P.2/complaints.
35. Apart from that PW2 in her chief-examination deposed that the accused No.2 has abused her husband in filthy language with reference to caste name and accused No.1 assaulted her by abusing in filthy language with reference to name of caste. PW3 in his chief-examination has deposed that both 30 Spl.C.No.173/2016 the accused persons have abused PW1 in filthy language and also by taking the name of caste. Further, he deposed that the accused No.2 has assaulted the PW1 by means of hands and accused No.1 has assaulted PW2. Both the accused persons have caused threat to take away the lives of PW1 and PW2. PW5 in her chief-examination deposed that the accused No.2 has assaulted PW1 and PW2 and accused No.1 has assaulted the PW2. The accused No.2 has abused in filthy language and also by taking the name of caste. It is pertinent to note that PW3 in his chief-examination deposed that as he was not feeling well, he went to K.C.General Hospital on 29.08.2015. Since PW1 was went to the house to have lunch, he came near the quarters of PW1 to take treatment. During the course of cross- examination of PW3 it was elicited from his mouth that he is working as driver in the office of Finance Secretary situated at Vidhana Soudha and there exist Primary Health Centre at Vidhana Soudha. The answers elicited from the mouth of PW3 would go to 31 Spl.C.No.173/2016 show that inspite of availability of medical facilities at Vidhana Soudha, this witness proceeded to K.C.General Hospital that too during the duty hours without obtaining permission from his higher official. The prosecution has not placed materials before this Court to show that PW3 was suffering from illness and he had been to K.C.General Hospital to take treatment. Apart from that the version stated by the PW3 regarding his visit to the house of PW1 to take treatment during the lunch hours is also unnatural and same cannot believed. The answers elicited from the mouth of PW3 would go to show that, he is having close relationship with PW1. Hence, the testimony of PW3 cannot be taken into consideration.
36. As I have already stated above at the first inception while filing Ex.P.1/complaint the PW1 and PW2 have failed to give particulars about the individual act of each accused persons and the lacuna in the Ex.P.1/complaint gets filled by way of filing Ex.P.2/complaint in which also the PW1 has failed to 32 Spl.C.No.173/2016 mention the individual act of accused No.2 specifically and he has generally stated that the accused No.2 assaulted him and also assaulted his wife. Further the alleged abusive word is also not mentioned in the subsequent complaint. Inspite of failure on the part of PW1 and PW2 to mention the individual act of each accused persons, the story of prosecution gets improved while recording statement by the police as required u/sec.161 of Cr.P.C.,wherein the PW1 to PW3 and PW5 have given statement regarding the individual act of each accused persons which are not mentioned in the Ex.P.1 and Ex.P.2/complaints. The case of prosecution goes on improving from the stage of filing first complaint, 2nd complaint and recording of statement as required u/sec.161 of Cr.P.C. Furthermore, while recording statement u/sec.161 of Cr.P.C., PW1 and PW2 have given the complete particulars of incident and individual act of each accused persons and failure on their part to mention the said particulars in the Ex.P.1 and 33 Spl.C.No.173/2016 Ex.P.2/complaints has not been stated before the Investigating officer. This aspect creates great doubt with regard to alleged incident.
37. The record discloses that PW1 and PW2 said to have sustained injuries in the incident and took treatment for the same. The prosecution has produced wound certificate before this Court as per Ex.P.4 pertains to PW2 wherein it is discloses that, PW2 has sustained superficial scratch mark in front of the right ear temporal region and tenderness over the left shoulder joint. The alleged incident was took place on 29.08.2015 and PW2 said to have taken treatment on 31.08.2015, which is after lapse of two days. PW1 said to have taken treatment on 30.08.2015 and same can be seen from the evidence of PW8. The original wound certificate of PW1 has not been placed before this Court for the reasons best known to the prosecution. This aspect also creates doubt in the mind of this Court with regard to alleged injuries sustained by the PW1 in the incident. PW1 and PW2 are the Medical Officers 34 Spl.C.No.173/2016 in Profession and they have not taken treatment in the hospital immediately after the incident inspite of having knowledge of taking treatment in relation to the history of assault. The evidence adduced by the prosecution through PW1 to PW3 and PW5 is not sufficient to prove the ingredients of Section 323, 504, 506 r/w 34 of IPC.
38. The allegation of intentional insult with intent to humiliate by taking the name of caste is proved through the evidence of PW1 to PW3 and PW5 or not is to be considered. Before going into the discussion on the other aspect of the matter it is just and proper to go through the Sec.3(1)(x) of the Act, which reads as follows;
"Intentionally insults or intimidates with intent to humiliate a member of a Schedules Caste or a Scheduled Tribe in any place within public view".
39. The basic ingredients of the offence u/sec.3(1)(x) can be classified as intentionally insults or intimidates with intent to humiliate member of 35 Spl.C.No.173/2016 SC/ST by caste name in any place within public view. The "place in public view" had come up for consideration before the Hon'ble Apex Court in the judgment reported in (2008) 8 SCC 435 (Swaran Singh & Ors., Vs. State through Standing Counsel & Ors). In the said judgment the Hon'ble Apex Court held that if an offence is committed outside the building, i.e in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would be an offence since it is not in public view. In the case on hand, it is not the case of PW1 and PW2 that there was any member of the public (not merely relatives or friends) at the time of incident in the place of occurrence. Therefore, the basic ingredient that the words were uttered "in any place within public view" is not made out. PW1 and PW2, who are 36 Spl.C.No.173/2016 examined before this Court have deposed regarding the intentional insult with intent to humiliate PW1 and PW2 by taking the name of their caste but the said deposition is not corroborated by any of the independent witnesses. PW3 and PW5 cannot be considered as General Public as PW3 is patient of PW1 and PW5 is mother in law of PW1. The incident said to have been occurred in the public place but there was no public view. Hence, I have no hurdles to hold that the alleged incident cannot be construed to be occurred in public view. As I have already stated above, the complaint regarding the caste based attack was not filed at the inception and it was filed belatedly after 96 days and said delay has not been properly explained. The allegations made in the complaint further discloses that there is no specific allegation in the complaint that the accused No.1 and 2 had individually made intentional insult by abusing in filthy language and also caste denigrative abuses. Hence, much 37 Spl.C.No.173/2016 importance cannot be given to the evidence of P.W.1 to PW3 and PW5.
40. The materials available on record clearly goes to show that, coconut trees were situated inside the compound of PW1 and this case as well as counter case in Spl.C.1132/2019 were registered in connection with throwing of coconut trees leaves infront of the gate of houses of PW1 and accused No.1 and 2 respectively. The prosecution in both the cases failed to place the relevant materials before this Court to prove the incident of both cases. Hence, the materials are not sufficient to find out the aggressor of the incident.
41. The evidence of PW1 and PW2 is not corroborated by any of the independent eye witnesses and witnesses examined before this Court are interested witnesses and there is a material contradictions and omissions in their evidence regarding the allegation of voluntarily causing hurt, intentional insult, criminal intimidation and intentional insult or humiliation by taking the name of the caste of PW1 38 Spl.C.No.173/2016 and PW2. In the absence of independent corroboration from the material eye witnesses as to the incident, the evidence of Medical officers, Tahasildar and Investigation officers are not in any way come to the aid of prosecution to connect the accused persons for the alleged offence. The oral as well as documentary evidence placed on record by the prosecution is not sufficient to bring home the guilt of accused beyond all reasonable doubt. Under such circumstances, the benefit of doubt should go infavour of accused persons. Accordingly, I answer Point No.1 to 4 are answered in the 'Negative'.
42. POINT No.5 :- In view of my foregoing reasons, I proceed the pass the following;
ORDER Acting under Section 235(1) of Cr.P.C, the accused No.1 and 2 are hereby acquitted for the offence punishable under Sections 323, 504, 506 r/w 34 of IPC and Sec.3(1)(x) of Scheduled Castes and Scheduled Tribes(Prevention of Atrocities Act), 1989.
39
Spl.C.No.173/2016 The accused No.1 and 2 are set at liberty and bail bonds of accused persons and their surety stands cancelled.
(Typed my dictation directly in computer by the Stenographer, corrected, signed and then pronounced in open court on this the 18 th day of January 2023).
(PRAKASH.V) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Dr.Ramesh Babu P.W.2 : Dr.Vijayalakshmi P.W.3 : Narayanaswamy P.W.4 : Dr.Suma P.W.5 : Smt.Kamala Hadimani P.W.6 : Gopalaswamy P.W.7 : H.V.Venkatachaliah P.W.8 : Dr.Mohan.J P.W.9 : Srinivasaiah P.W.10 : Arun R Naik
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 & P.2 : Complaint dtd29.08.2015 Ex.P.1(a) & (b) : Signatures of PW1 & PW2 Ex.P.2 : Complaint dtd 04.12.2015 Ex.P.2(a) : Signature of PW1 40 Spl.C.No.173/2016 Ex.P.3 : Spot Panchanama Ex.P.3(a) to (d) : Signatures of PW2, PW3, PW5 & PW9.
Ex.P.4 : Wound Certificate
Ex.P.4(a) : Signature of PW4
Ex.P.5 & P.6 : Caste certificates of accused
persons
Ex.P.5(a) & P.6(a) : Signatures of PW10.
Ex.P.7 & P.8 : Caste Certificates of PW1 and PW2
Ex.P.7(a) & P.8(a) : Signatures of PW10.
Ex.P.9 : FIR
Ex.P.9(a) : Signature of PW9
Ex.P.10 : DCP order
Ex.P.10(a) : Signature of PW10
3. WITNESSES EXAMINED FOR THE DEFENCE:
Ex.D.1 : NCR No.810/2015 Ex.D.1(a) : Signature of PW1
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
Nil (PRAKASH.V) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.