Karnataka High Court
Shankar Ramappa Desai vs The State Of Karnataka on 2 July, 2020
Equivalent citations: AIRONLINE 2020 KAR 1485, 2020 (3) AKR 598
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2 N D DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2544 OF 2012
BETWEEN
1. SHANKAR RAMAPPA DESAI
AGE: 36 YEARS,
2. SHIVANAND KALLAPPA BELAKOODI
AGE: 19 YEARS,
3. SANJU MALLAPPA SANADI
AGE: 22 YEARS,
4. PAPU MALLAPPA SANADI
AGE: 32 YEARS,
ALL ARE R/O. AMMANAGI, TQ: HUKKERI,
DIST: BELGAUM.
... APPELLANTS
(BY SRI.A G MULAWADMATH, ADV.)
AND
THE STATE OF KARNATAKA
THROUGH SANKESHWAR POLICE
REPTED. BY STATE PUBLIC PROSECUTOR
DHARWAD.
... RESPONDENT
(BY SRI.RAMESH B. CHIGARI, HCGP)
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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING THAT THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE PASSED BY THE SPL. JUDGE & III-ADDL.
SESSIONS JUDGE, BELGAUM, IN S.C.NO.63/2011, DATED
25.11.2011 AND THEREBY SENTENCING APPELLANTS/ACCUSED
NO.1 TO 4 TO UNDERGO RIGOROUS IMPRISONMENT FOR 6
MONTHS WITH FINE OF RS.1000/- EACH FOR THE OFFENCE
P/U/S 3(1)(X) OF SC/ST (PA) ACT, 1989 AND IN DEFAULT TO
PAY FINE AMOUNT, THE ACCUSED NOS. 1 TO 4 EACH AND THE
APPELLANT/ACCUSED NOS. 1 TO 4 EACH SHALL PAY A FINE OF
RS.1000/-. IN DEFAULT, SIMPLE IMPRISONMENT FOR ONE
MONTH FOR THE OFFENCES P/U/S 323 R/W SEC. 34 OF IPC, BE
SET ASIDE AND APPELLANTS/ACCUSED NO.1 TO 4 BE
ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the Judgment of conviction and Order of sentence passed in Spl. Case No.63/2011 dated 25.11.2011 passed by Special (III Addl. Sessions) Judge, Belgaum wherein the appellant-accused Nos.1 to 4 were convicted 3 for the offence punishable under Sections 323, 355, 504 r/w 34 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989.
2. The appellant-accused Nos.1 to 4 each were sentenced to pay fine of Rs.1,000/-, in default, simple imprisonment for one months for the offence under Section 323 r/w Section 34 of IPC. The appellant-accused Nos.1 to 4 are sentenced to undergo rigorous imprisonment of six months with fine of Rs.1,000/- each for the offence punishable under section 3(1)(x) of the SC and ST(POA) Act, 1989 and in default to pay the fine amount, the accused Nos.1 to 4 each shall further undergo simple imprisonment for one month each.
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3. The accused were not sentenced separately for the offence punishable under Section 355 of IPC and 504 of IPC by taking aid of Section 71 of IPC as offence under Section 355 is covered under Section 323 of IPC and offence under Section 504 of IPC is covered under Section 3(1)(x) of SC and ST(POA) Act, 1989.
4. The factual matrix of the prosecution case is that PW.1 and PW.4 are husband and wife. PW.3-Uttam is son of Basappa Ganeshgol elder brother of PW.1 and they were residing in the Ammanagi village and they belong to Hindu Holer caste coming under Scheduled Caste.
5. On 18.03.2011, there was a Annual Gathering at Kannada School of Ammanagi village for which PW.1-Kempanna Mahadev 5 Ganeshgol and PW.3-Uttam Basappa have attended the same and PW.1 returned to the house in between and PW.3 remained in the said gathering. At about 8.45 p.m., PW.3 Uttam Basappa Ganeshgol returned to the house and informed PW.1 that one Uday Shankar Desai quarreled with him and assaulted him in the said gathering and therefore he came back to the house.
6. In the meanwhile accused Nos.1 to 4 came to the house of PW.1 situated at Harijan Keri of Ammanagi Village and called PW.3-Uttam out of the house stating that "a Holeya Sule Magane Horage ba" and at that time PW.1- Kempanna Mahadev Ganeshgol and PW.4 Rekha W/o Kempanna Ganeshgol came out of the house along with PW.3-Uttam. The accused Nos.1 to 4 started assaulting PW.3-Uttam and 6 accused No.1 assaulted PW.3-Uttam with chappals. The said accused No.1 also assaulted PW.1-Kempanna and PW.4-Rekha, while they trying to rescue PW.3-Uttam. Accused No.1 abused him as " nee en helathi holeya suli magane" and caused injuries on the nose of PW.1-Kempanna by fisting with hands and other accused persons also caused injuries on the face and back of PW.4-Smt.Rekha and at that time PWs.5 to 8 pacified the quarrel. PWs.1, 3 and 4 sustained injuries and they were sent to Government Hospital, Sankeshwar in 108 Ambulance on the very same day.
7. At about 00.15 Hours on 19.03.2011 PW.1-Kempanna went to Sankeshwara Police Station and filed Ex.P.1-complaint and case came to be registered in Crime No.63/2011 for the offence punishable under Sections 147, 7 323, 355 and 504 r/w 149 of IPC and Section 3(1)(x) and (xi) of the SC and ST(POA) Act, 1989 and accused Nos.1 to 4 were shown as accused Nos.2 to 5 in the FIR and the name of one Udaya Shankar Desai as accused No.1 in the FIR. Dy.SP, Gokak took up further investigation and filed charge sheet before Special Court against the accused Nos.2 to 5 shown in the FIR who are accused Nos.1 to 4 herein for the offence punishable under Sections 323, 355, 504 r/w 34 of the IPC and also under Sections 3(1)(x) of the SC and ST(POA) Act, 1989.
8. The Special Court framed the charge for the offence punishable under Section 323, 355, 504 r/w 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989.
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9. The prosecution has examined 14 witnesses as PWs.1 to 14 and got marked documents as per Ex.P.1 to P.11 and also Material Object No.1.
10. The accused were examined under Section 313 of Cr.PC. After hearing the arguments on both the sides the Special Court framed the points for consideration and passed the impugned order. The Judgment of conviction and order of Sentence has been challenged on the following grounds:-
a) The trial Court has committed an error in convicting the appellants-
accused without there being
sufficient material.
b) Reliance placed by the trial Court
on evidence that the prosecution has established the commission of 9 offence by the accused persons is not correct.
c) PW.1 and his wife PW.4 are residents of Ammanagi village and accused Nos.1 to 4 are also residents of Ammanagi village and when they are examined by the doctor, they told the history before the doctor as assault by unknown persons and same goes to show that the accused persons have been falsely implicated subsequently.
d) The complaint was lodged on 19.03.2011 at 00.15 hour to show that the complaint was lodged at the earliest.
e) The complaint was against five persons but 'B' report, was submitted by Police against Uday Shankar Desai on the ground that there is no material against him. 10
f) In the complaint, it is stated that Udaya Desai assaulted Uttam and therefore he ran away from the house and accused persons came to the house and assaulted them.
Therefore, the story of the prosecution is false.
g) None of the injured has sustained severe injuries.
h) PW.1 has assaulted his wife-Rekha and Uttam and in an attempt to rescue them it appears that due to old rivalry the complaint is lodged against the accused Nos.1 to 4.
i) All the witnesses are relatives and caste men of complainant-PW.1.
j) The trial Court has not considered the evidence of PW.11 and PW.12 regarding the nature of injuries and treatment taken by them.
k) The trial Court has committed an error in imposing rigorous 11 imprisonment to accused Nos.1 to 4 against the offence punishable under Section 3(1)(x) of SC and ST(POA)Act,1989, without there being a sufficient evidence to hold that the accused persons have committed an offence.
l) The separate punishment imposed against the accused persons under Section 323 is wrong as it is covered under Section 3(1)(x) of the SC and ST(POA) Act, 1989.
11. Heard the arguments of the learned counsel appearing for the appellant-accused Nos.1 to 4 and learned HCGP of respondent- State.
12. The learned counsel appearing for the appellants-accused has argued that the injured PWs.1, 3 and 4 at the time of giving history before the PW.11-doctor have stated that they 12 are assaulted by unknown persons and the very said aspect goes to show that the evidence of injured PWs.1, 3 and 4 and eye witnesses PWs.5 to PW.8 is not reliable and trustworthy. He further argued that there are material contradictions in the evidence of PWs.1, 3 and 4 and PWs.5 to 8. PWs.5 to 8 are the caste men and relative of PW.1 and therefore, their evidence is not reliable as they are interested witnesses.
13. On contrary, the learned HCGP has argued that the evidence of PWs.1, 3 and 4 who are injured is corroborated by the eye witnesses PWs.5 to 8 and the medical evidence. He has supported the reasoning assigned by the Special Court and submitted that the Special Court has rightly convicted the appellant- accused Nos.1 to 4 for the aforesaid offences. 13
14. On the grounds urged and arguments advanced, the following point arise for my consideration;
Whether the Special Court committed an error in convicting the accused- appellant Nos.1 to 4 for the offence punishable under Section 323, 355, 504 r/w 34 of IPC and Section 3(1)(x) of SC and ST(POA)Act,1989?
15. My answer to the above point is in the affirmative for the following reasons;
PWs.1, 3 and 4 belongs to Hindu-Holera caste and accused-appellant Nos.1 to 3 belongs to Hindu Lingawant caste and accused No.4 belongs to Hindu-Kabbilger caste. Ex.P.4 is the caste certificate issued by Tahasildar, Hukkeri. The caste of PWs.1, 3 and 4 and accused-appellant Nos.1 to 4 is not disputed. 14
16. The evidence of PWs.1, 3 and 4 is that accused-appellant Nos.1 to 4 came to their house and they assaulted PWs.1, 3 and 4 with hands and chappal. PWs.1, 3 and 4 and accused-appellants are residents of Ammanagi village and though they know each other, the incident said to have taken place on 18.03.2011 at 8.45p.m. Immediately, thereafter, PWs.3 and 4 went to Community Health Center, Sankeshwar. PW.11-doctor examined PWs.3 and 4. PW.3 has been examined at 9.30 p.m.on 18.03.2011 and PW.4 has been examined at 9.45 p.m. on 18.03.2011.
17. PW.3 Uttam has given history before the PW.11-doctor that alleged assault is at 9 p.m. at Ammanagi village at his residence by unknown people. PW.4-Rekha has also given 15 history of alleged assault at 9 p.m. at Ammanagi village at her residence by unknown people. The said history has been mentioned in the wound certificates Exs.P.5 and P.7. Ex.P.5 is the wound certificate of PW.3. Ex.P.7 is the wound certificate of PW.4. The said history was given immediately within one hour of the incident. If the said PWs.3 and 4 knew the names of the persons who assaulted them, then they ought to have mentioned their names before the doctor who examined them. Ex.P.8 is the wound certificate of PW.1-Kempanna wherein history is mentioned that the alleged assault is at 9 p.m. at Ammanagi village at his residence by unknown people. PW.1 has been examined at 1.00 a.m. on 19.03.2011. PW.11 is the doctor who examined PWs.1, 3 and 4. In 16 EXs.P.5, 7 and 8 it is mentioned that PWs.1.3 and 4 have came to the hospital on their own.
18. PW.1 who is voluntarily on his own went to Community Health Center, Sankeshwar has been examined by PW.11-doctor at 1.00 a.m. on 19.03.2011 and Ex.P.8 is the wound certificate issued by PW.11-doctor. PW.1 has deposed that after he took treatment, he filed complaint. The complaint is at Ex.P.1. The same has been received by PSI, Sankeshwar (PW-13) at 00.15 hours on 19.03.2011. Looking to the said timing, it is clear that the said complaint Ex.P.1 has been received by putting anti time. Ex.P.9 is the FIR which has been dispatched at 1.15 hours on 19.03.2011 has been received by the Special Judge at 9.30 a.m. on 19.03.2011. On looking to all these aspects, it is clear that there is a delay in filing 17 the complaint and complaint has been registered by putting anti timing. When PW.1 knows the accused persons who assaulted him, he has not stated their names while giving history of assault before the doctor-PW.11 who examined him at 1.00 a.m. on 19.03.2011. This creates doubt about the case of the prosecution. It is the defence of the accused- appellants that PW.1 came drunk in the school annual day gathering and assaulted his wife PW.4 and his nephew PW.3 and when accused persons went to rescue them, a false case has been registered against the accused-appellants with the previous enmity.
19. In Ex.P.1-complaint it is stated that accused Nos.1 to 4 and one Uday Shankar Desai abused PW.3-Uttam touching his caste and assaulted PW.3 with hands and accused 18 No.1 assaulted PW.3 with chappal on his body and accused No.1 abused PW.1 touching his caste and assaulted with fisting hands on his nose and other accused assaulted his wife PW.3 on her neck, face and back etc. PW.1 has deposed that accused No.1 assaulted his wife PW.4-Rekha but in the complaint, it is mentioned that other accused assaulted his wife Rekha with hands on her face, neck and back etc. Therefore, there is a material contradiction in Ex.P.1-complaint and in the evidence of PW.1. PW.1 has deposed that accused No.1 assaulted PW.3 and others assaulted with hand there is no mentioning of assault by chappals in the evidence of PW.1.
20. PW.3 has deposed that accused No.1 assaulted him with material object chappal and at that time PW.1 came to rescue and he was 19 also assaulted by him. PW.3 has deposed that he fell down unconscious and he do not know who assaulted where and he regained conscious at Sankeshwar Hospital. PW.1 has not stated regarding losing consciousness by PW.3 in his evidence.
21. PW.4 has deposed that all the accused persons directed PW.3-Uttam to come out of the house and accused persons assaulted PW.3 with chappal and hands and accused persons abused her as 'bosudi' and assaulted with hand and knee on her chest and stomach and accused No.3 assaulted her with material object no.1 chappal and she lost consciousness and she regained consciousness in the hospital. PW.4 has not specifically stated with regard overt act of the each of the accused. She has not stated which of the accused assaulted PW.3 20 and herself. PW.1 has not stated about unconsciousness of PW.4.
22. PW.1 has deposed that his wife was assaulted with hand. PW.4 has deposed that she was assaulted with chappals and hands. Therefore, there is a material contradiction in the evidence of PW.1 and PW.4. PW.3 has not deposed anything regarding assault to PW.4-Rekha.
23. PWs.5 to 8 who are stated to be the eye witnesses have deposed that accused assaulted PWs.3, 4 and 1 and they have not deposed regarding overt act of each of the accused and who assaulted whom. PWs.5 to 8 are caste men of PWs.1, 3 and 4 and more so, PW.8 is a relative of PW.1. When PWs.5 to 8 have stated to have witness the incident have not stated over act of the each of the accused regarding 21 who assaulted whom. When PWs.5 to 8 have not stated specific overt act of each of the accused, their presence on the spot is doubtful and their evidence is not credible.
24. PWs.5, 6 and 8 have not stated regarding abusing of PWs.1, 3 and 4 touching their caste. PW.7 has also not deposed regarding abuse by accused touching caste of PWs.1, 3 and 4. But, he has stated that when they went to pacify the quarrel, the accused abused him touching his caste. Therefore, the evidence of PWs.5 to 8 regarding abuse by accused persons touching the caste of PWs.1, 3 and 4 is not corroborated by PWs.5 to 8 who were stated to be present and witnessed the incident.
25. Therefore, for the aforesaid reasons a doubt arises regarding the case of the prosecution. The 22 Special Court ought to have given benefit of doubt to the accused-appellants. The Special Court has not appreciated the evidence on record in proper perspective. There are material contradictions in the evidence of witnesses. The Special Court has not taken into consideration the said material contradictions in the evidence of witnesses. Therefore, the conviction of the appellant-accused Nos.1 to 4 requires to be set aside. Accordingly, I pass the following:
ORDER The appeal is allowed.
The Judgment of conviction and Order of sentence passed in Spl. Case No.63/2011 dated 25.11.2011 passed by Special (III Addl. Sessions) Judge, Belgaum is set aside.23
The appellant-accused Nos.1 to 4 are acquitted of the offence punishable under Sections 323, 355, 504 r/w 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act,1989.
Bail bonds executed by appellants-
accused and surety stands cancelled.
Sd/-
JUDGE Hm b