Karnataka High Court
The State By vs Bramma W/O. Devendra on 16 January, 2021
Author: Ravi.V.Hosmani
Bench: Ravi. V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16th DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI. V.HOSMANI
CRIMINAL APPEAL NO.2865/2012
BETWEEN
The State by
Deputy Superintendent of Police,
Bellary Sub-Division,
Bellary.
... Appellant
(By Sri. V.M. Banakar, Addl. SPP)
AND
1. Smt. Eramma W/o. Devendra,
Age: 45 years,
Occ: House wife.
2. Smt. Shashikala W/o. Gopala,
Age: 25 years,
3. Suresh S/o. Devendra,
Age: 22 years,
4. Mahesha S/o. Devendra,
Age: 21 years,
Occ: Mechanic.
5. Kum. Lakshmi D/o. Devendra,
Age: 20 years.
All are R/o. 15 Ward,
2
Ashraya Colony,
Siruguppa, Bellary District.
......Respondents
(By Sri. Srinand A. Pachhapure, Advocate)
This criminal appeal is filed u/s 378(1) & (3) of Cr.P.C.
seeking to grant leave to appeal against the judgment and order
of acquittal dated 05.12.2011 passed by the Special Judge,
Bellary, in S.C.No.15/2011 and set aside the judgment and order
of acquittal by allowing this appeal and consequently convict the
accused for the offence charged.
This appeal being reserved for judgment on 19.11.2020
this day, the court, delivered the following:
JUDGMENT
Challenging the judgment dated 05.12.2011 passed by the Spl. Judge Ballari in Spl. Case No.15/2011 acquitting accused for the offences punishable under Sections 143, 147, 148, 323, 324, 355, 448, 504 read with Section 149 of Indian Penal Code (for short "the IPC") and Sections 3(1)(x) and (xi) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 ("SC/ST Act" for short) acquitting the accused, the State is in appeal.
2. The brief facts leading to this appeal is that a complaint was filed by Smt. Chandramma W/o. Dodda 3 Basappa on 19.02.2011 at 2:00 p.m. stating that when she was sitting with her husband Dodda Basappa worrying about her daughter Sharada aged 21 years, who was taken by Gopal somewhere, at about 9:00 p.m. on 18.02.2011, her neighbours who were relatives of Gopal namely i) Iramma W/o. Devendra ii) Lakshmi W/o Gopal, iii) Suresh S/o. Devendra, iv) Mahesh S/o. Devendra and v) another daughter of Devendra (name not known), formed an unlawful assembly with common intention of dishonouring complainant, trespassed into her house and abused her in filthy language referring to her caste. Her husband was beaten by Suresh and Mahesh with sticks and slippers while Iramma, Lakshmi and Devendrappa's daughter pushed the complainant down and thereafter assaulted her with hands and slippers thereby insulting her. On listening to her cries, neighbours Dodda nandi and others came and stopped the assault. When she and her husband were in pain due to assault, she suspected that accused stole her gold ear studs and cash of rupees five thousand. Due to 4 injuries, they were admitted to Shirguppa Government Hospital and complaint given after taking treatment.
3. Based on said complaint, crime No.27/2011 was registered at Shiraguppa Police Station and FIR forwarded to jurisdictional Special Court. After investigation, charge sheet was filed in Spl. Case No.15/2011, for offences punishable under Sections 143, 147, 148, 323, 324, 355, 448, 504 read with Section 149 of IPC and Sections 3(1)(x) and (xi) of the SC/ST Act. On appearance, the accused denied the charges and sought trial. In support of the charges, prosecution examined P.W.1 to P.W.9 and got marked Exs.P1 to P7; MO1 and MO2 were identified. Thereafter incriminating materials was explained to the accused who denied the same and led their evidence. Two witnesses namely DW1 and 2 were examined and Exs.D1 and D2 were marked.
4. On consideration, trial Court framed the following points for its consideration. 5
1. Whether the prosecution proves beyond all reasonable doubt that on 18.02.2011 at about 9.00 p.m. accused after forming themselves into an unlawful assembly with common object to insult a member of scheduled caste after trespassing in to the house of complainant PW.2 Chandramma abused her as "ªÀ i Á¢UÀ ¸À Æ ½ªÀ Ä PÀ Ì ¼É " .
2. Whether the prosecution proves beyond all reasonable doubt that on 18.02.2011 at about 9.00 p.m. accused after forming themselves into an unlawful assembly with common object to insult a member of scheduled caste after trespassing into the house of complainant accused No.1 Smt. Eramma, accused No.2 Smt. Shashikala and accused No.5 Smt. Lakshmi assaulted complainant with chapel and hands and thereby caused offence punishable U/s. 355, 323 r/w. 149 of IPC.
3. Whether the prosecution proves that on 18.02.2011 at about 9.0 p.m. accused by forming themselves into an unlawful assembly by holding deadly weapons, after trespassing into the house of complainant insulted complainant and her husband in filthy language with an intention to insult a member of scheduled caste, accused No.3 Suresh and 4 Mahesh assaulted complainant's husband with stick and caused injuries and thereby committed offences punishable U/s. 324 r/w. 149 of IPC.
4. What order?
6
5. After recording finding in the negative with regard to Point Nos.1 to 3, impugned Judgment of acquittal was passed. Challenging the same, State is in appeal.
6. Shri V.M. Banakar, learned Addl. State Public Prosecutor (ASPP) for appellant-State submitted that impugned judgment was passed on improper consideration of evidence on record and conclusions drawn were contrary to evidence. The prosecution substantiated the offences by examining not only injured eyewitnesses but also independent eyewitnesses supported by relevant documents and records. Assailing the reasons assigned by trial Court as improper, it was submitted that non-examination of independent witnesses was not fatal to prosecution case. The test to be applied while considering evidence of witnesses is whether element of truth exists therein and whether it is sufficient to support the prosecution case. It was further submitted that P.W.2 and P.W.7 who are injured eyewitnesses would be best witnesses and their testimony is to be considered on a higher pedestal. 7 Even delay in filing FIR cited as a reason was improper as complainant and her husband were injured in the incident and they took treatment before giving complaint. Thus, there was sufficient explanation for delay. Elaborating the aspect, it was submitted that incident occurred at 9:00 p.m. on 18.02.2011; complainant was examined P.W.1-Doctor at 10:45 p.m. same day and complaint was given on 19.02.2011 at 2:00 p.m. Therefore, delay was not exorbitant or unexplained. Hence, reasons assigned by trail Court for acquittal were perverse and acquittal required interference.
7. On the other hand, Shri Shrinand A.Pachchapure, learned counsel for respondent accused submitted that entire prosecution case was riddled with omission and contradictions and the prosecution miserably failed to substantiate all necessary ingredients for constituting the offences alleged against accused. It was specifically submitted that P.W.1- Doctor did not mention age of injuries in wound certificates Exs.P1 and P2. No MLC was registered. 8 Though P.W.1 claimed to have registered MLC, no records produced to substantiate the same. P.W.1 did not mention size and shape of injuries and failed to state possible cause in Ex.P.1 & Ex.P.2. Though in oral testimony P.W.1 stated that they could be caused by assault with sticks and slippers, in cross-examination he admitted that such injuries could be caused due to fall also. It was further submitted that even evidence of P.W.2 complainant contained glaring inconsistencies. She stated that complaint was given before going to hospital for treatment. However, prosecution case was that she took treatment first and thereafter complaint was registered. During cross-examination she admits that she lodged complaint at 10:00 p.m. which is in contradiction with Ex.P3, which indicates it was received at 2:00 p.m. on 19.02.2011. It was further submitted that P.W.2 claimed to be an illiterate, therefore complaint was written by one Ramappa as per her instructions. But said Ramappa was not examined. The prosecution also failed to prove any motive for offence which cast doubt. In her testimony, P.W.2 does 9 not mention about theft of ear studs and cash and no explanation offered for this omission which also gives rise to doubt. P.W.3 Police Sub Inspector who received complaint states that on 19.02.2011, complainant came to Police Station to lodge complaint at 2:00 p.m. But during cross-examination he states that she came to Police Station on 18.02.2011 along with her husband Dodda Basappa and they were referred to Hosptial. P.W.3 further admits that no investigation was conducted with regard to reasons for delay in lodging complaint.
8. Learned counsel further submitted that even P.W.4 admitted in his cross-examination that Police had not recorded his statement under Section 161 of Cr.P.C. He further admits that he did not go inside house of complainant and seen the incident. He admits he is a relative of P.W.2. Therefore, evidence of P.W.4 cannot be believed. P.W.5 pancha witness failed to identify the MOs. P.W.6 the independent eyewitness admits in his cross-examination that he was standing at a distance of 30 feet from the spot and from there house of 10 complainant was not in direct view. Even P.W.7 husband of P.W.2-complainant, admitted in cross- examination that he does not know contents of his statement recorded under Section 161 of Cr.P.C. He admits possibility of other neighbours being present in their houses at the time of incident. But, there is no explanation by Investigating Officer, why no investigation was conducted and why independent witnesses were not examined in this case. In his testimony P.W.7 stated that he went to Police Station along with Shivappa and Parameshwarappa, immediately after incident and thereafter his wife arrived there. This is in contradiction with statement of P.W.2 that she went to Police Station to give complaint and does not mention about P.W.7. Further contrary to record Ex.P.1, P.W.7 says that he was taken to hospital along with Police Constable. Lastly, referring to statement of P.W.2 and P.W.7 that incident occurred inside their house, it was submitted that the incident was not in 'public view' which was an essential requirement for constituting offence under Section 11 3(1)(x) of SC/ST Act. In support of his submission, learned counsel relied upon decision in the case of Chandra Pujari Vs. State of Karnataka reported in 1997 (4) KLJ 81.
9. Heard learned counsel, perused impugned judgment and records.
10. In order to verify whether a case of interference as sought for appellant - State is made out, an examination of evidence on record is necessary. P.W.1 Doctor who examined P.W.2 complainant and P.W.7 her husband testified that they came to him on 18.02.2011 at 10:45 p.m. P.W.7 Dodda Basappa appeared voluntarily with history of injuries in assault. Ex.P1 is his wound certificate. Three injuries were noticed namely i) multiple abrasion on lateral aspect of knee joint, ii) abrasion on left knee and iii) abrasion on right great toe. They were simple in nature. He stated that these injuries could be caused by beating with sticks and slippers. Ex.P2 is the wound certificate of P.W.2-complainant. It mentions that she was brought 12 for medical examination by a Police Constable. On examination, one injury namely abrasion on ventral aspect of right wrist joint was noticed. The injury was simple in nature. Though P.W.1 stated that such could be caused by assault with stick and slippers, in his cross-examination, he admits that such injuries can be caused due to fall also. Further, P.W.2 failed to produce MLC registered. Even the MOs. were not examined by him to verify whether injuries mentioned in Exs.P1 and P2 could be caused by MOs. P.W.2 testified that accused entered her house and thereafter assaulted her and her husband by abusing in filthy language referring to her caste and also assaulting with sticks and slippers. But P.W.4 the neighbour of complainant, who came to spot after hearing her cries stated that when he came outside his house, he saw accused abusing P.W.7 referring to his caste and thereafter accused entered the house and pulled P.W.7 outside and thereafter, accused No.3-Suresh assaulted him with slippers; Accused No.4-Mahesh assaulted him with stick on his knees and Accused Nos.1, 2 and 4 assaulted 13 P.W.2 with slippers. Thereafter, he along with P.W.6 and Rangappa stopped the assault. In his cross- examination, P.W.4 admits that his house is at a distance of 50 feet from the complainant's house but on a different street. The evidence of P.W.4 is in stark contradiction with that of P.W.2. Considering the distance between the two houses, a doubt arises whether it would be possible for P.W.4 to hear cries of P.W.2 inside his house, at a distance of 50 feet. That apart, the narration by P.W.4 is as if he was an eyewitness from the moment accused arrived at the spot, which contradicts with evidence of P.W.2 and P.W.7.
11. P.W.6 Similarly even another neighbour of complainant stated that on the date of incident at about 9:00 p.m. he was chatting with P.W.4 and Rangappa, when he heard cries from complainant's house. When he went there, he saw accused No.3 assaulting P.W.7 with slippers, accused No.4 was assaulting with stick on the knees of P.W.7 and accused nos.1, 2 and 4 pulling complainant around and assaulting her with slippers. In 14 his cross-examination, he states that his house is at a distance of 100 feet from complainant's house and at the time of incident, he was standing at a distance of 30 feet and her house was not in direct view from where he was standing. He further admits that apart from him there were 5-6 other persons whose details he does not know. Hence, like P.W.4, evidence of P.W.6 has to be held as doubtful. Firstly, P.W.2 does not state that P.W.4 and P.W.6 were present and witnessed entire incident. Secondly, P.W.6 admitted that P.W.2's house was not visibile from where he was standing. And thirdly, he was standing at a distance of 30 feet.
12. P.W.7 is husband of P.W.2-complainant and an injured eyewitness. In his examination in chief, he states that on 18.02.2011 at 9:00 p.m. he and his wife were in their house. At that time, he heard accused No.1 saying "CPÀ Ì CPÀ Ì ... £À £ À ß ªÀ Ä UÀ £ À £ À Ä ß PÉ Æ qÀ Ä .." and abusing them "ªÀ i Á¢UÀ ¸À Æ ½ªÀ Ä PÀ Ì ¼É ... ªÀ i Á¢UÀ ¸À Æ ½" Thereafter accused No.3 assaulted him with slipper on his right shoulder while Mahesh assaulted with him stick on his knee. He 15 states that he is working as Subject Co-ordinator in Education Department. He has stated that he went to Police Station first along with his friends and his wife followed him thereafter. However, there is no explanation why complaint was not written by him but by another person Suresh. He admits that he went to Police Station at 9:30 p.m. and Police did not accept complaint on that night and he was taken to hospital by Police. He further admits that his wife took inpatient treatment for two days; which are glaring contradictions. According to P.W.3, P.W.2 came to Police Station at 2:00 p.m. and Ex.P3 complaint however, is registered at 2:00 p.m. Further contrary to his statement, Ex.P1 does not mention P.W.7 being accompanied by Police for medical examination by P.W.1. There is absolutely no explanation regarding these contradictions. This is be a material omission on the part of the prosecution.
13. P.W.3 is the Police Sub Inspector, who received the complaint on 19.02.2011. P.W.3 states that on 19.02.2011 when he was SHO of Shiraguppa 16 P.S., complainant approached him with written complaint at about 2:00 p.m. After registering Crime No.27/2011, he made over FIR to the Spl. Court. But in his cross-examination P.W.3 states that P.W.2 came to Police station to lodge complaint on 18.02.2011 and she was referred to hospital. He also admits that he did not investigate reasons for delay in filing the complaint.
14. P.W.5 is a mahazar witness. He states that he is a resident of Shirigeri. He does not properly explain his presence in 15 t h Ward, Ashraya Colony in Shiraguppa i.e., the spot of the incident on 19.02.2011, when the mahazar was drawn. In his cross- examination, he states that the Police wrote the panchanama and took his signature later. Therefore, his testimony would not be fruitful for the prosecution.
15. The evidence of P.W.8-Dy.S.P. who received the intimation of registration of Spl. Case under the SC/ST Act and P.W.9 the carrier of the FIR to the Spl. Court would not materially improve the prosecution 17 case. In fact, P.W.9 fails to explain the delay in the FIR reaching the Spl. Court.
16. Under the circumstances, the reasons assigned by the trial Court for acquittal appear fully justified; the conclusions drawn are with reference to evidence on record and they are neither perverse nor suffer from material irregularity calling for interference by this Court. In the result, there is no merit in the appeal. The same is accordingly dismissed.
Sd/-
JUDGE BVK