Bangalore District Court
The State By vs Smt. Suma on 11 December, 2018
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE,
BENGALURU CITY (CCH-71)
Dated this the 11th day of December 2018
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions &
Special Judge, Bengaluru.
Spl.C.No:05/2016
Complainant The State by
Yelahanka New Town Police
Station,
Bengaluru.
By Special Public Prosecutor
Vs
Accused 1 Smt. Suma, W/o Channakeshva
Murthy, Aged 27 years, R/at
No.57, Devikrupa, Veerasagara
Road, Thirumala Nagar,
Yelahanka Upanagar, Bengaluru.
2 Ravindra S/o Narayanaswamy,
Aged 26 years, R/at 413/633, 1st
Main Road, Atturu Extension,
Yelahanka Upanagar, Bengaluru.
By Sri.MMA, Advocate.
2 Spl.C.No.05/2016
1 Date of commission of offence 21.06.2015
2. Date of report of occurrence 30.06.2015
3. Date of commencement of 04.09.2017
recording evidence
4. Date of closing of evidence 14.09.2018
5. Name of the complainant Smt. Divya
6. Offences complained of Sec.323, 448, 354,
504 r/w Sec.34 of
IPC and
U/Sec.3(1)(x)(xi) of
SC & ST (POA) Act,
1989
7. Opinion of the Judge Accused are
acquitted
JUDGMENT
The Assistant Commissioner of Police, Yelahanka Sub-Division, Bangalore has filed the charge sheet against the accused no.1 and 2 for the offences P/U/Secs.323, 448, 354, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x)(xi) of SC & ST (POA) Act, 1989.
2. Based upon the first information lodged by CW1/complainant Smt.Divya, Yelahanka New Town Police have registered a first information report bearing Cr.No:177/2015. After completion of the investigation, charge sheet is submitted directly before the designated 3 Spl.C.No.05/2016 Special Court against the accused no.1 and 2 for the aforesaid offences.
3. This Special Case No:5/2016 which was pending before the II Addl. City Civil & Sessions and Special Court transferred to this exclusive Special Court as per order dt:29.7.2017.
4. The case of the prosecution is as under:
CW1 Smt.Divya is the daughter of CW5 Smt.Shashikala. CW4 is the sister of CW1. They are all belongs to Lambani caste which comes under Schedule Tribe. The accused persons are not belongs to Schedule Caste or Schedule Tribe. There was money transaction between the husband of accused no.1 and CW5. In this regard the accused had enmity with CW5. That on 21.6.2015 at about 10 a.m. the accused persons went to the house of CW5 situated at Door No:847, 6th Cross, I Main Road, Uttur extension and on finding that CW5 Shashikala was not there in the house, then the accused persons picked up quarrel with CW1 daughter 4 Spl.C.No.05/2016 of CW5 and threatened that they would put her mother into jail and referring CW5 abused her in filthy language 'loofor munde'. Thereafter on 25.6.2015 at about 10 a.m. the accused persons again went to the house of CW5 and on finding that CW5 was not in the house, they repeated the same thing by abusing her in filthy language. That on 25.6.2015 at about 5 p.m. the accused persons with common intention again went to the house of CW5 and criminally trespassed into the house of CW5 and picked up quarrel with CW1 and accused no.2 pulled her and outraged her modesty. The accused persons with common intention assaulted CW1 with hands. The accused persons intentionally insulted CW1 by abusing her in filthy language by saying ' J¯Éè ¤ªÀÄä CªÀÄä ®A¨Átô ¯ÉÆÃ¥Àgs ï ªÀÄÄAqÉ, J°è Nr ºÉÆÃVzÁݼÉ, ¤ªÀÄä ªÀÄ£ÉAiÀĪÀgÉ®ègÀ£ÀÄß eÉÊ°UÉ PÀ¼ÀĸÀÄ»¸ÀÄvÉÛÉãÉ, ¯Éà ¤ªÀÄä CªÀÄä ClÆÖgÀÄ ¯ÉÃOmï £À°è ªÀÄ£É SÁ° ªÀiÁr vÁAqÀPÉÌ ¤ÃªÀÅ ºÉÆÃUÀ¨ÉÃPÀÄ ºÁUÉ ªÀiÁqÀÄvÉÛêÉ'. The accused persons abused CW1 in the name of caste by saying ' ¯Éà ®A¨Átô ªÀÄÄAqÉ, ¤ªÀÄäªÀÄä ®A¨Átô ªÀÄÄAqÉ PÉÊ ¹UÀ°, ®A¨Átô eÁw §Ä¢Þ J°è ©qÀÄwÛgÁ'. 5 Spl.C.No.05/2016 The accused persons by abusing CW1 I the name of caste insulted and humiliated her in public view and accused no.2 with an intention to outraged her modesty caught hold her and pulled her.
5. Based upon the first information lodged by CW1/complainant on 30.6.2015 PSI of Yelahanka New Town Police station has registered the case in Cr.No:177/2015 and dispatched the FIR to the court. The Investigating Officer took up the investigation and visited the place of incident and conducted the spot mahazar. The Investigating Officer recorded the statements of the witnesses. The Investigating Officer after collecting all the materials on completion of investigation has filed the charge sheet against the accused for the offences P/U/Secs.323, 448, 354, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x)(xi) of SC & ST (POA) Act, 1989.
6. The accused persons who obtained anticipatory bail order appeared before the court on 3.3.2016 and by 6 Spl.C.No.05/2016 engaging counsel released on regular bail. Charge sheet copies furnished to the accused and thereby the provision U/Sec.207 of Cr.P.C. is duly complied with.
7. On 5.8.2017 charges are framed against the accused for the offences P/U/Secs.354, 323, 448, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x)(xi) of SC & ST (POA) Act, 1989 for which the accused pleaded not guilty and claimed to be tried.
8. During trial the prosecution has examined 7 witnesses as PWs.1 to 7 and documents Ex.P1 to P13 are marked. During the course of cross-examination of the prosecution witnesses, the documents Ex.D1 and D2 are marked on the side of the accused.
9. On 5.10.2018 the statements of the accused as required U/Sec.313 of Cr.P.C. is recorded by putting all the incriminating circumstances available in the prosecution evidence to them. The accused have denied 7 Spl.C.No.05/2016 all such incriminating evidence. The accused persons did not led any defence evidence on their behalf.
10. I have heard the arguments of the learned Special Public Prosecutor and the learned counsel for the accused. I have also perused the entire case papers. The learned Special Public Prosecutor submitted that the evidence of PWs.1 to 7 would clearly establish that the accused persons have committed the offences P/U/Secs.354, 323, 448, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x)(xi) of SC & ST (POA) Act, 1989. She submitted that the evidence of PW1 corroborating with the evidence of PWs.2 and 3. She submitted that PW4 eyewitness also supported the case of the prosecution. She argued that the accused persons have quarreled with CW1 on 21.6.2015 and also on 25.6.2015 and abused her in the name of caste and in filthy language and assaulted her with hands and accused no.2 outraged her modesty. She submitted that PW5 Tahsildar has issued Ex.P4 report regarding the caste of accused and Cw1 complainant. PW6 who has 8 Spl.C.No.05/2016 registered the case and PW7 the Investigating Officer who conducted further investigation and filed the charge sheet have supported the case of the prosecution. She has argued that the evidence of PWs1 to 4 coupled with the evidence of ¸ÀPWs.5 to 7 who are official witnesses fully established the charge against the accused. She has argued that merely because there is monetary transaction between the husband of the accused no.1 and CW5 that cannot be a ground to doubt the version of PWs.1 to 3. Since the prosecution has established the charge framed against the accused beyond all reasonable doubt, the accused are liable to be convicted for the said charges.
11. On the other hand the learned counsel for the accused submitted that PWs1 to 3 who are the members of the same family are interested witnesses. He submitted that CW5/PW3 was lending the money on higher rate of interest, hence the accused no.1 lodged the complaint. Based on the same the case came to be 9 Spl.C.No.05/2016 registered against CW5 and against her husband. In order to counter blast the same CW5 got registered false complaint by lodging the complaint through her daughter CW1. He argued that on the very next day of lodging the complaint by accused no.1 against CW5, the complainant of this case filed false complaint against accused no.1 and 2. He submitted that the delay in lodging the complaint is not explained by the prosecution. There is private complaint based on the cheque case. He submitted that the oral evidence of PWs.1 to 4 are not corroborating with each other. He submitted that no material objects were seized in this case to show that the accused have pulled CW1 and torn her cloths. The eyewitnesses and mahazar witnesses have not been examined by the prosecution. He argued that there is no evidence to show that there was a public view. He submitted that the oral evidence of Pws.1 to 4 are not reliable as they are all interested witnesses. The oral evidence of Pws.1 to 3 are not corroborating with the document Ex.P1 complaint. 10 Spl.C.No.05/2016 There are lot of improvements and contradictions in their evidence. He submitted that the ingredients of the alleged offences are not attracted. The prosecution has failed to establish the charge framed against the accused beyond all reasonable doubt. He thus prays for acquitting the accused on the ground of benefit of doubt. He has relied upon the following decisions:
1. AIR 2011 SC 1905 (Asmathunnisa Vs State of AP)
2. LAWS (KAR) 2016-12 73 (State of Karnataka Vs Narayanaswamy Abbayyappa)
3. 2001 CRI.L.J. 3566 (State of Karnataka Vs Irappa Dhareppa Hosamani)
4. 2013 CRI.L.J. 510 (Madanlal Jaiswal Vs State of Chhattisgarh)
5. 2015 CRI.L.J. 3106 (Dnyaneshwar Maroti Bembde and Ors Vs State of Maharashtra)
6. 2017 CRL.L.J. (NOC) 714 (BOM) 11 Spl.C.No.05/2016
7. 2017 CRL.L.J. (NOC) 131 (M.P)
8. 2017 CRL.L.J. (NOC) 72 (RAJ)
9. 2017 CRL.L.J. (NOC) 668 (H.P.)
12. Upon hearing, the following points arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 21.6.2015 at about 10 a.m. the accused persons with common intention went near the house of CW5 situated at Door No:847, 6th Cross, I Main Road, Attur Extension and abused CW1 in filthy language and also abused referring her mother CW5 as 'lofor munde' and on 25.6.2015 at about 10 a.m. and on the same day at about 5 p.m. the accused persons with common intention picked up quarrel with CW1 and abused her in filthy language and thereby gave provocation to her to break the public peace and thereby the 12 Spl.C.No.05/2016 accused have committed the offence P/U/Sec.504 r/w Sec.34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on 25.6.2015 at about 5 p.m. the accused persons with common intention criminally trespassed into the house of CW5 who residing with her daughter CW1 Smt.Divya and thereby the accused have committed the offence P/U/Sec.448 r/w Sec.34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on 25.6.2015 at about 5 p.m. the accused persons with common intention picked up quarrel with CW1 and assaulted her with hands and voluntarily caused her simple injuries and thereby the accused have committed the offence P/U/Sec.323 r/w Sec.34 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that 13 Spl.C.No.05/2016 on 25.6.2015 at about 5 p.m. the accused persons with common intention trespassed into the house of CW5 and picked up quarrel with CW1 and accused no.2 outraged the modesty of CW1 by holding her chest and pulled her and thereby the accused persons have committed the offence P/U/Sec.354 r/w Sec.34 of IPC?
5. Whether the prosecution proves beyond all reasonable doubt that on 21.6.2015 at about 10 a.m. the accused persons abused CWs1 and 5 in the name of caste and also on 25.6.2015 at about 10 a.m. the accused persons again abused Cws.1 to 5 in the name of caste and on 25.6.2015 at about 5 p.m. the accused persons abused CW1 in the name of caste as '¯Éà ®A¨Átô ªÀÄÄAqÉ, ¤ªÀÄäªÀÄä ®A¨Átô ªÀÄÄAqÉ PÉÊ ¹UÀ°, ®A¨Átô eÁw §Ä¢Þ J°è ©qÀÄwÛgÁ' and insulted and humiliated CW1 in public view and thereby the accused have 14 Spl.C.No.05/2016 committed the offence P/U/Sec.3(1)(x) of SC & ST (POA) Act, 1989?
6. Whether the prosecution proves beyond all reasonable doubt that on 25.6.2015 at about 5 p.m. the accused no.2 with an intention to outrage her modesty pulled CW1 by holding her and insulted and humiliated her and thereby the accused have committed the offence P/U/Sec.3(1)(xi) of SC & ST (POA) Act, 1989?
7. What order?
13. My findings on 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:- In the Negative Point No.6:- In the Negative 15 Spl.C.No.05/2016 Point No.7:- As per final order for the following:
REASONS
14. Point No.1 to 6: Since these points are inter- linked with each other, to avoid repetition and for the sake of convenience, they are taken up together for common discussion.
15. P.W.1 is the complainant and victim, P.W.2 is the sister of P.W.1 is eye witness, P.W.3 is the mother of P.W.1, P.W.4 is the neighbor of P.W.3 is the eye witnesses, P.W.5 is the Tahsildar who issue Ex.P.4 report regarding the caste of P.W.1 and P.W.3 and accused. P.W.6 is the PSI who has registered the case on 30/6/2015 based on the complaint lodged by P.W.1. P.W.7 is the ACP who has conducted further investigation and filed the charge sheet against the accused. The document Ex.P.1 is the first information statement, Ex.P.2 is the statement of P.W.2, Ex.P.3 is the mahazar, Ex.P.4 is report of Tahsildar, Ex.P.5 is 16 Spl.C.No.05/2016 the FIR, Ex.P.6 to Ex.P.8 are photos, Ex.P.9 is letter sent to Assistant Engineer of BBMP, Ex.P.10 is the letter sent of AEE, Ex.P.11 is the letter sent to Tahsildar, Ex.P.12 is also letter sent by Investigating Officer to Tahsildar, Ex.P.13 permission of DCP to file charge sheet. In this case order of DCP is marked as Ex.P.4 and Hand sketch map is marked as Ex.P.5. Hence in order to avoid confusion order of DCP is treated as Ex.P.4A and hand sketch map is treated as Ex.P.5A.
16. P.W.1/Smt. Divya has deposed that she belongs to Lambani community which comes under Schedule Tribe. Accused no.1 belongs to Gowda community and accused no.2 belongs to Kuruba community. On 21/6/2015 at 10-00 a.m. accused no.1 and 2 came to her mother house i.e., House no.847 situated at Attur Layout, Opposite Omshakthi Temple and by entering into the house the accused started abusing her mother in foul and filthy language 17 Spl.C.No.05/2016 "¯ÉÆÃ¥Àsgï ªÀÄÄAqÀÉ ¤ªÀÄä CªÀÄä K°è, ®A¨Átô eÁw ªÀÄÄAqÉgÁ. ¤ªÀÄä vÁAqÀPÉÌ ¤ÃªÀÅ ºÉÆÃUÀ¨ÃÉ PÀÄ ºÁUÀà ªÀiÁqÀÄvÉÛÃ£É £ÁªÀÅ". She has deposed that she told the accused that her mother is not there and why you people abusing her mother. At that time the accused no.1 Suma slapped her to left side. When she tried to protect herself at that time the accused no.2 beat on the back. When she turned back the accused no.2 put hand on her chest and torned her chudider top. Then she wept and went inside. Thereafter accused no.1 and 2 left the place shouting and insulting them in the name of caste. She has deposed that her parents did not come up to 30/6/2015 as they were busy in getting bail relating to a complaint filed by the accused no.1 and her husband. On 25/6/2015 at about 10-00 a.m. accused no.1 and 2 again came to her house and in the same manner abused and insulted in the name of caste and foul and filthy language and threatened that they will get her mother put in the jail. She has deposed that again on the same day at 5-00 p.m. the accused no.1 and 2 18 Spl.C.No.05/2016 came again and abused and insulted in the same way. She has deposed that on 25/6/2015 in the evening she went to lodge the complaint but the police did not take her complaint. On next day she took the lawyer and went to police station and gave written complaint. But the police did not take the complaint. Hence she went to police Commissioner office at Kodigehalli. The police commissioner directed that concerned station to register the complaint thereafter her complaint was registered. She has identified her complaint which is marked at Ex.P.1. She has deposed that the police have recorded her statement on 30/6/2015 as per Ex.P.2. On 30/6/2015 the police came to the spot and conducted the panchanama as per Ex.P.3.
17. During the course of cross-examination by the learned counsel for the accused P.W.1 has stated that Ex.P.1 was written by her advocate Manjunath. She has deposed that there was money transaction between accused and her parents. She has admitted 19 Spl.C.No.05/2016 the suggestion that accused no.1 and her husband were lodged criminal case against her mother and father and same is pending before 44th ACMM Court. She has admitted the suggestion that accused no.1 and her husband lodged complaint against her mother and father on 24/6/2015. She has admitted the suggestion that the document Ex.D.1 is the copy of mahazar done near Chicken Center. She has denied the suggestion that even though no incident was occurred on 21/6/2015 and 25/6/2015 in order to counter blast the complaint lodge by accused no.1 and her mother P.W.3 she has lodged false complaint against the accused. P.W.1 has denied all the suggestions made to her.
18. P.W.2/Komala is the sister of P.W.1 has deposed that accused no.1 had a site. She states that her mother had taken money from Rohit and given Rs.6,00,000/- to accused no.1 in order to purchase site. She has deposed that accused no.1 had filed case 20 Spl.C.No.05/2016 against her mother C.W.5. On 21/6/2015 at about 10-00 a.m. accused no.1 and 2 had came to her house then her elder sister P.W.1 opened the door. Then accused started scolding her asking where is your mother. The accused abused P.W.1 in the name of caste as "¯ÉÆÃ¥Àsgï ªÀÄÄAqÉ, ®A¨ÁtôAiÀĪÀgÀÄ ¤ÃªÀÅ gÀ¸ÉÛ ªÀÉÄÃ¯É EgÀ¨ÉÃPÁzÀªÀgÀÄ". She has deposed that accused no.1 and 2 threatened that they will drive them out of the city. She has deposed that on 25/6/2015 at 10-00 a.m. as well as in the evening at 5-00 p.m. accused came to her house. She has deposed that in the evening the accused no.2 beat P.W.1 on the chest and back with fist. She has deposed that accused no.1 caught hold P.W.1, accused no.2 caught hold the dress of P.W.1 near the chest. The accused no.1 and 2 against threatened that they will drive them out of the city. Then they closed the door out of fear. At that time their neighbor C.W.6 Ambika, C.W.8 Lingaraju and C.W.7 Shakunthala were present. She has deposed that her mother and father came after about 10 days then they told about the 21 Spl.C.No.05/2016 incident to her parents. During the course of her cross-examination by the learned counsel for the accused she has admitted the suggestion that on the basis of complaint lodged by the accused no.1 and her husband against her parents the case which registered in C.C.No.21457/2015 is still pending. She has denied the suggestion that even though no such incidents were occurred on 21/6/2015 and 25/6/2015 in order to counter blast the complaint lodged by the accused no.1 they have filed false complaint against the accused. P.W.2 has denied all other suggestions made to her.
19. P.W.3/Smt. Shasikala has deposed that accused no.1 and her husband gave complaint against her and her husband. Hence she was not in the house as she was moving around for bail. On 25/6/2015 she came to the house at night about 10-00 p.m. at that time P.W.1 and P.W.2 told her that accused persons came on 21/6/2015 in morning about 10-00 a.m. and 22 Spl.C.No.05/2016 abused them in the name of caste. P.W.1 and P.W.2 also told her that on 25/6/2015 at about 5-00 p.m. accused no.1 and 2 came to her house and accused no.2 caught the dress of P.W.1 near the chest and beat her with fist and tore her dress and accused no.1 and 2 abused them in the name of caste and told that they will put her into jail.
20. The oral evidence of P.W.3 is the form of hear say witness. P.W.3 has not witnessed the incident. According to P.W.3 she came to know about the incident through P.W.1 and P.W.2. During the course of cross-examination by the learned counsel for the accused P.W.3 has admitted the suggestion that there was monetary transactions between her and husband of accused no.1. She had admitted the suggestion that accused no.1 has lodged the complaint against her and her husband to Yelahanka Newtown police. She had admitted the suggestion that Ex.D.2 is the certified copy of the charge sheet which filed against her and 23 Spl.C.No.05/2016 her husband. She has denied the suggestion that in order to take revenge against the accused she and her daughter colluding together filed false complaint against the accused. She has admitted the suggestion that cheque case is also filed against the husband of the accused no.1. She had denied all the suggestions made to her.
21. P.W.4/Smt. Shakunthalamma has deposed that P.W.1 and P.W.3 belongs to Lambani community, accused no.1 belongs to Gowda community and accused no.2 belongs to Kuruba community. She states that P.W.1 and P.W.3 are her neighbors. On 25th June, 2 years back she had gone to the house of P.W.3. P.W.3 was not there. Accused no.1 and 2 had come there about 5-00 p.m. and were beating P.W.1 and abusing her in the name of caste. Then she told them not to abuse. Then accused no.2 pushed P.W.1. Thereafter the accused persons left that place. During the course of her cross-examination she has denied the 24 Spl.C.No.05/2016 suggestion that no incident was take place as deposed by her. She has deposed that she don't remember whether she has given evidence in 27th ACMM court in Cheque bounce case filed by Rohit R in C.C.No.6272/2016. She states that the distance from the alleged spot to the police station is about half a km. She states that she had no problem in lodging complaint.
22. P.W.5/Narasimha Murthy Tahsildar has deposed that he has issued Ex.P.4 report regarding caste of accused no.1 and 2 and P.W.1 and P.W.3. Accused no.1 belongs to Vokkaliga caste, accused no.2 belongs to Golla community, P.W.1 and P.W.3 are belongs to Lambani community. During the course of cross-examination of P.W.5 nothing is elicited from his mouth to discard his version.
23. P.W.6/Jayananda PSI has deposed that on 30/6/2015 at 7-00 p.m. he has registered the case in Crime No.177/2015 based on the complaint lodged by 25 Spl.C.No.05/2016 P.W.1 and sent Ex.P.5 FIR to the court. During the course of his cross-examination by the learned counsel for the accused P.W.6 has deposed that case in Crime No.164/2015 was registered against P.W.3 and her husband based on the complaint lodged by present accused no.1 on 24/6/2015 at about 6-30 p.m. He has deposed that in that case in Crime No.164/2015 the mahazar was conducted between 10-30 a.m. and 11-00 a.m. on 25/6/2015. He has denied the suggestion that he has registered the false case against the accused.
24. P.W.7/B.M Narayanaswamy who was working as ACP has deposed that on 1/7/2015 he has took up the case file for further investigation and on the same day he has visited the house of the complainant and conducted the mahazar as per Ex.P.3 in the presence of C.W.2, and C.W.3 as place of incident was shown by C.W.1 and C.W.4. He has prepared hand sketch map as per Ex.P.5 (Ex.P.5A) and 26 Spl.C.No.05/2016 also took photos. The photos are marked as Ex.P.6 to Ex.P.8. He has deposed that he has sent letters Ex.P.9, Ex.P.10 to AEE, BBMP requesting to prepare sketch of place of incident. That on 10/9/2015 he has recorded the statement of C.W.5/P.W.3. He has sent requisitions as per Ex.P.11 and Ex.P.12 to obtain caste certificates of accused and complainant. He has received Ex.P.4 report of the Tahsildar regarding caste of complainant and accused. He after completion of investigation after obtaining the permission from DCP has filed the charge sheet against the accused.
25. Based upon the above evidence, it is to be considered if the prosecution has established the charges framed against the accused beyond all reasonable doubt.
26. P.W.1 has deposed that she belongs to Lambani community which comes under Schedule caste, accused no.2 belongs to Kuruba community and accused no.1 belongs to Gowda community. P.W.2 has 27 Spl.C.No.05/2016 deposed that they belongs to Lambani community, accused no.1 belongs to Gowda community, accused no.2 belongs to Golla community, P.W.3 has also deposed that she belongs to Lambani community comes under Schedule caste, accused no.1 belongs to Gowda community, accused no.2 belongs to Golla community. These oral versions of P.W.1 to P.W.3 have not tested in their cross-examination. P.W.4 has also deposed that P.W.1 and P.W.3 are belongs to Lambani community. P.W.5 is the Tahsildar who is the best witness to say about the caste has issued Ex.P.4 report stating that P.W.1 and P.W.3 are belongs to Lambani community, accused no.1 belongs to Vokkaliga community and accused no.2 to belongs to Golla community. During the course of cross- examination of P.W.5 nothing is elicited from his mouth of P.W.5 to discard his version and document Ex.P.4. The oral evidence of P.W.1 to P.W.5 which is supported by the document Ex.P.4 issued by P.W.5 is sufficient to hold that P.W.1 and P.W.3 are belongs to 28 Spl.C.No.05/2016 Lambani caste which comes under Schedule caste and accused no.1 and 2 are not belongs to any Schedule Caste/Tribes.
27. In this case the prosecution has not produced any medical documents to show that P.W.1 has sustained any injuries due to assault made by the accused. P.W.1 and P.W.2 are the daughters of P.W.3. The relationship is admitted. It is also admitted fact that on 24/6/2018 accused no.1 has filed complaint against the P.W.3 and her husband based on the same case in Crime No.164/2015 registered by Yelhanka Newtown police for the offences punishable u/s 3, 5 of Karnataka Money Lenders Act, Section 3, 4 of Karnataka Prohibition of charging exorbitant interest Act and u/s 504, 506, 448, 323 r/w 34 of IPC. The document Ex.P.1 is the copy of mahazar in Crime No.164/2015 marked during cross-examination of P.W.1, document Ex.D.2 certified copy of entire charge sheet in Crime No.164/2015 (C.C No.21457/2016) 29 Spl.C.No.05/2016 marked during the cross-examination of P.W.3. Since P.W.1 to P.W.3 are members of the same family and interested witnesses their evidence shall be scrutinized very carefully.
28. According to the case of the prosecution the incident was occurred for 3 times. Firstly on 21/6/2015 at 10-00 a.m., second time on 25/6/2015 at 10-00 a.m. and third time on 25/6/2015 at 5-00 a.m.
29. It is the specific case of the prosecution is that on 21/6/2015 at about 10-00 a.m. when C.W.1/Complainant was present in the house of her mother C.W.5/P.W.3 at that time the accused no.1 and 2 came to her house and enquired where about of her mother and abused her in filthy language and given threat to her and went away. Except this there was no assault or beating happened on 21/6/2015 at 10-00 a.m. It is further case of the prosecution is that on 25/6/2015 at about 10-00 a.m. accused persons again 30 Spl.C.No.05/2016 came to the house of C.W.5/P.W.3 and abused C.W.1/P.W.1 in a filthy language and insulted them. It is further case of the prosecution is that on the same day on 25/6/2015 at about 5-00 p.m. accused no.1 and 2 criminally trespassed into the house of P.W.3/C.W.5 and abused C.W.1/P.W.1 in a filthy language and abused by using their caste and threatened them to send to the jail and assaulted C.W.1/P.W.1 with hands and accused no.2 outraged her modesty by pulling her and touching her chest and by abusing in the name of caste committed atrocity against C.W.1/P.W.1. On perusal of the document Ex.P.1 complaint it is specifically mentioned as stated above in this para. In Ex.P.1 complaint it is mentioned that on 21/6/2015 at about 10-00 a.m. accused came to the house and asked C.W.1/complainant where is her mother Shashikala. When C.W.1 told the accused that her mother is not in the house then accused abused her by saying "Lofar Munde", "we will send you jail" saying so they went away. Except abusing and 31 Spl.C.No.05/2016 giving threat nothing was happened on 21/6/2015. It is also mentioned in Ex.P.1 that on the very same day on 21/6/2015 when complainant came along with her mother to the police station she has narrated this incident to the police then police warned to the accused not to interfere in the life of C.W.1/Complainant. It is mentioned in Ex.P.1 that inspite of such warning given to the accused they again came near the house of C.W.1/complainant and abused the complainant. It is mention in Ex.P.1 complaint that on 25/6/2015 at about 5-00 p.m accused no.1 and 2 came along with 4-5 persons and trespassed into the house and abuse C.W.1/complainant and her mother is filthy language and abused by using their caste and threatened them to send them to the jail and accused no.1 assaulted C.W.1 with hands on her face and caught hold her hand then accused no.2 assaulted the complainant on her back and also touched her chest. When complainant resisted for the same then accused no.2 32 Spl.C.No.05/2016 abused her in filthy language. On perusal of the document Ex.P.1 complaint, according to complainant the incident regarding beating outraging modesty etc, occurred on 25/6/2015 at 5-00 p.m.
30. But quite contrary to the case of the prosecution P.W.1 has deposed that all these incident of assault outraging modesty and abuse made in the name of caste and abuse made in filthy language occurred on 21/6/2015 at about 10-00 a.m.
31. According to the case of the prosecution on 21.6.2015 at about 10 a.m. except the accused coming to the house of PW1 and enquired about her mother and abused her and gave life threat, nothing was happened on that day. According to the case of the prosecution the incident of assault, outraging of modesty, abuse made in the name of caste all occurred on 25.6.2016 at about 5 p.m. But quite contrary to the case of the prosecution and document Ex.P1 complaint/ PW1 has deposed that the accused no.1 33 Spl.C.No.05/2016 and 2 entered her house on 21.6.2015 at about 10 am. and abused her and her mother in foul and filthy language like ' ¯ÉÆÃ¥Àsgï ªÀÄÄAqÉ ¤Ã£ÀÄ ±À²PÀ¯Á J°è ®A¨Átô ªÀÄÄAqÀÉ ®A¨Átô eÁw §Ä¢Þ J°è ©qÀÄwÛÃgÁ. She has deposed that when she told the accused that her mother is not there in the house, at that time the accused abused her mother and accused no.1 slapped her to left side and when she tried to protect herself, at that time the accused no.2 beat on her back and when she turned back, at that moment the accused no.2 put hand on her chest and torn her chudidar top. Then she wept and went inside. According to PW1 all these incident was occurred on 21.6.2015 at about 10 a.m. But according to the case of the prosecution no such incident of assault and outraging the modesty was occurred on 21.6.2015. The oral evidence of PW1 is quite contrary to the document Ex.P1 complaint. PW1 has deposed that her parents did not come up to 30.6.2015 as they were busy in getting bail relating to a complaint filed by the accused no.1 and her husband. She has deposed that the 34 Spl.C.No.05/2016 accused no.1 and 2 again come to her house on 25.6.2015 at about 10 am. And again on the same day at 5 p.m. and abused and insulted her. PW1 has not deposed anything about the accused no.1 and 2 assaulting her with hands and accused no.2 pulled her by holding the chest on 25.6.2015 at 5 p.m. The entire oral evidence of PW1 if looked into, her evidence is that the entire incident was occurred on 21.6.2015 at 10 a.m. The oral evidence of PW1 is quite contrary to the document Ex.P1. Hence her oral evidence creates doubt about this incident.
32. PW2 who is the sister of PW1 has deposed that the accused no.1 and 2 came to her house on 21.6.2015 at about 10 a.m. and when her sister has opened the door, the accused scolded her asking where is your mother as she run away, the accused also abused PW1 in the name of caste as ' ¯ÉÆÃ¥Àsgï ªÀÄÄAqÉ, ®A¨ÁtôAiÀĪÀgÀÄ ¤ÃªÀÅ gÀ¸ÉÛ ªÉÄÃ¯É EgÀ¨ÉÃPÁzÀªÀgÀÄ'. PW2 has deposed that PW1 said accused that her mother is not there, then 35 Spl.C.No.05/2016 the accused no.1 and 2 threatened that they will drive them out of the city. The oral evidence of PW2 is not corroborating with the oral evidence of PW1 regarding the alleged incident dt.21.6.2015 at about 10 a.m. The abusive language deposed by the PW1 is not corroborating with the abusive language deposed by PW1. PW2 has deposed that on 25.6.2015 the accused no.1 and 2 again came to the house at about 10 a.m. and in the evening at 5 p.m. She states that in the evening the accused no.2 beat PW1 on the chest and back with fist and accused no.1 caught hold PW1 and accused no.2 caught hold the dress of PW1 near the chest. Then the accused no.1 and 2 threatened that they will drive them out of the city. She states that then they closed the door out of fear. PW1 has deposed that the accused no.1 and 2 were assaulted her with hands on 21.6.2015 and accused no.1 slapped her to the left side and accused no.2 beat her on the back and put hand on her chest and tore her chudidar top, but PW2 has deposed that this incident was occurred 36 Spl.C.No.05/2016 on 25.6.2015 at 5 p.m. The accused no.2 beat PW1 on the chest and back with fist. Accused no.1 caught hold PW1 and accused no.2 caught the dress of PW1 near the chest. PW2 has not deposed anything about the accused no.2 tore the chudidar of PW1. PW2 has not deposed anything about the accused no.1 slapped on the face of PW1. PW1 has not deposed anything about the accused no.2 beating her on the chest. The oral evidence of PWs.1 and 2 are not corroborating with each other. The abusive language which is deposed by PW2 is not corroborating with the abusive language deposed by PW1.
33. PW3 who is the mother of PWs.1 and 2 is not the eyewitness to the incident. According to PW3 when she was came to the house on 25.6.2015 at about 10 p.m., then PWs.1 and 2 narrated her about the incident dt.21.6.2015 and incident dt.25.6.2015. It is the evidence of PW1 is that her parents did not come up to 30.6.2015. PW2 has deposed that her mother 37 Spl.C.No.05/2016 and father came after ten days after this incident. That means according to PW2 also her mother and father came to their house only after 30th June 2015. But quite contrary to the oral evidence of PWs.1 and 2 their mother PW3 has deposed that she came to her house at night at about 10 p.m. on 25.6.2015. At that time PWs.1 and 2 narrated about this incident. The oral evidence of PWs1 to 5 is quite contrary to the document Ex.P1 complaint because in Ex.P1 complaint it is mentioned that on 21.6.2015 in the evening the complainant along with her mother went to the police and narrated about the incident dt.21.6.2015. At that time the police warned the accused not to commit any offence. In this case Yelahanka New Town Police registered the case in Cr.No:177/2015 on 30.6.2015. PW6 PSI has deposed that based on the complaint lodged by PW1 on 30.6.2015 at about 7 p.m. he has registered the case. PW6 has not deposed anything about complainant came to the police station on 21.6.2015 or on 25.6.2015. The oral evidence of PWs.1 38 Spl.C.No.05/2016 to 3 are not corroborating with each other. PW4 has deposed that on 25th June two years back she had gone to the house of PW1, at that time PW3 was not there. She has deposed that the accused no.1 and 2 had come there about 5 p.m. and were beating PW1 and abusing her in the name of caste. Then she told them not to abuse. Then the accused no.2 pushed PW1 and thereafter accused no.1 and 2 left that place. PW4 has not deposed anything about the abusive language used by the accused. PW4 has not deposed anything about the abusive language used by the accused to abuse in the name of caste. PW4 has not deposed anything about the outraging of modesty of PW1 by the accused. PW4 has not deposed anything about giving life threat by the accused to PW1. Even though PW4 has deposed that the accused no.1 and 2 have beaten PW1 and abused her in the name of caste. PW4 has not specifically deposed on which part of the body of PW1 accused persons assaulted. In this case there is no medical evidence to support the case of the 39 Spl.C.No.05/2016 prosecution. PW1 has not deposed anything about why she has not taken any medical treatment if the accused persons assaulted her with hands. PW4 has deposed that the distance from the alleged spot to the police station is about half kilometer. PW4 has deposed that there was no impediment for her to lodge the complaint. According to the case of the prosecution PW4 is the neighbour of PWs.1 to 3. The oral evidence of PW4 is also not corroborating with the oral evidence of PWs.1 and 2.
34. From the evidence of PWs.1 to 3 and PW4, it is clear that the ingredients of the offences U/Sec.3(1)(x), 3 (1)(xi) of SC & ST (POA) Act, 1989 are not attracted. The burden of proof is strictly on the prosecution to establish that there was commission of such an offence and the allegation that the accused had used derogatory expressions with reference to the caste of Pws.1 and 3 in public view with an intention to insult or humiliate them and thus it constituted the 40 Spl.C.No.05/2016 offences P/U/Secs.3(1)(x) and 3(1)(xi) of the Act is required to be established on the basis of evidence which is unimpeachable. There is no cogent and consistent evidence on the side of the prosecution to show that the accused persons have committed the offences alleged against them. The alleged derogatory words mentioned in Ex.P1 complaint is not consistent from the ocular evidence of Pws1, 2 and 4. They have deposed about the derogatory word said to have used by the accused in totally different manner than that of mentioned in Ex.P1. PW1 has deposed entirely different version than that of mentioned in Ex.P1. According to her the entire incident was occurred on 21.6.2015, but according to the case of the prosecution the incident of assault, outraging of modesty, abuse made in the name of caste in filthy language and giving life threat all are occurred on 25.6.2015 at 5 p.m. Even though PW2 has deposed that the incident was occurred at about 5 p.m. on 25.6.2015 but when PW1 herself deposed against her own complaint Ex.P1 the 41 Spl.C.No.05/2016 oral evidence of PW2 which is not corroborated with the oral evidence of PW1 also creates doubt about her version. The learned counsel for the accused relied upon the decisions reported in
1. AIR 2011 SC 1905 (Asmathunnisa Vs State of AP)
2. LAWS (KAR) 2016-12 73 (State of Karnataka Vs Narayanaswamy Abbayyappa)
3. 2001 CRI.L.J. 3566 (State of Karnataka Vs Irappa Dhareppa Hosamani)
4. 2013 CRI.L.J. 510 (Madanlal Jaiswal Vs State of Chhattisgarh)
5. 2015 CRI.L.J. 3106 (Dnyaneshwar Maroti Bembde and Ors Vs State of Maharashtra)
6. 2017 CRL.L.J. (NOC) 714 (BOM)
7. 2017 CRL.L.J. (NOC) 131 (M.P)
8. 2017 CRL.L.J. (NOC) 72 (RAJ)
9. 2017 CRL.L.J. (NOC) 668 (H.P.) 42 Spl.C.No.05/2016
35. I have gone through all those cited decisions. In my humble view the decisions cited by the learned counsel for the accused which is reported in AIR 2011 SC 1905, decision reported in LAWS (CRL.) 2016 12 73 and decision reported in 2001 Crl.L.J. 3566 are aptly applicable to this case.
36. In so far as the alleged offence U/Sec.504 of IPC is concerned, it requires to be established that the accused persons had intentionally insulted which provoked her to break public peace or to commit any other offence. When the entire evidence is considered there is nothing on record to satisfy the ingredients of the offence U/Sec.504 of IPC. With regarding to Sec.354 of IPC and U/Sec.3(1)(xi) of SC & ST (POA) Act, 1989 is concerned, there is no consistent evidence to satisfy the ingredients of these of offences. PW1 has deposed that the accused no.2 has bet her on back and put hand on her chest and torn her chudidar top on 21.6.2015, but quite contrary to the oral evidence of PW1, PW2 has deposed that on 25.6.2015 at about 5 43 Spl.C.No.05/2016 p.m. the accused no.2 caught the dress of PW1 near the chest. PW4 has not deposed anything about holding the chest or pulling the dress of PW1 by the accused no.2. The Investigating Officer has not seized any cloths to show that the cloths of PW1 were torn by the accused no.2. There is no medical evidence to support the oral evidence of PW1 that the accused no.2 beat on her back and also pulled her by holding the chest. Hence there is no cogent evidence to satisfy the ingredients of the offence U/Sec.354 of IPC and U/Sec.3(1)(xi) of SC & ST (POA) Act, 1989. There is no cogent evidence to show that the accused persons have assaulted PW1 and criminally trespassed into the house of Pws.1 and 3. According to the case of the prosecution this incident was occurred on 21.6.2015 and 25.6.2015. The complaint was lodged on 30.6.2015. There is nine days delay in lodging the complaint from the date of alleged first incident. Even if we consider the alleged second incident, then there is five days delay in lodging the complaint which is not 44 Spl.C.No.05/2016 properly explained by the prosecution. PW1 has deposed that immediately after the incident on 25.6.2015 she went to the police station but the police did not take her complaint, hence on the next day she went along with the advocate and lodged the complaint. Then also police did not take her complaint. Then she went to the Police Commissioner office and then on the direction of the Police Commissioner, the concerned police registered the case. There is no document on the side of the prosecution to show that PW1 went to the police station on 25.6.2015 and lodged the complaint. There is no document on the side of the prosecution to show that PW1 has went to the Police Commissioner office and lodged the complaint. PW6 PSI who registered the case has deposed that PW1 complainant came to the police station on 30.6.2015 and lodged her complaint as per Ex.P1 at about 7 p.m. and based on the same he registered the case. If at all PW1 has lodged the complaint on 25.6.2015 itself the same should have 45 Spl.C.No.05/2016 mentioned in Ex.P1 complaint. On perusal of Ex.P1 there is some interpolation in last two lines wherein she has inserted that she has lodging the complaint as per the direction of Police Commissioner. Admittedly the accused no.1 has lodged the complaint against PW3 and her husband on 24.6.2015 regarding the alleged incident on 9.6.2015 and 17.6.2015. The accused persons have produced and got marked the document Ex.D1 through PW1 and Ex.D2 entire charge sheet copies through PW3 during their cross- examination which shows that based on the complaint lodged by accused no.1 the case came to be registered against PW3 and her husband and the Investigating Officer also filed charge sheet against PW3 and her husband. The learned counsel for the accused submitted that in order to counter blast the complaint lodged by accused no.1 after six days later PW1 who is the daughter of PW2 has lodged false complaint against the accused persons. He submitted that in Ex.D1 it is mentioned that the mahazar in 46 Spl.C.No.05/2016 Cr.No:164/2015 drawn on 25.6.2015 between 10.30 a.m. and 11 a.m. PW6 PSI also admitted the suggestion that the mahazar of Cr.No:164/2015 was drawn on 25.6.2015 between 10.30 and 11 a.m. On perusal of Ex.D1 it shows that the present accused no.1 Smt.Suma was present at the time of drawing mahazar on 25.6.2015 near Lakshmi Gowda Chicken Centre. According to the case of the prosecution in the present case the incident was occurred on 25.6.2015 at about 10 a.m. If we peruses the document Ex.D1, then it is very difficult to believe the oral evidence of PWs.1 and 2 that accused no.1 came to their house at about 10 a.m. on 25.6.2015. The reason for delay in lodging the complaint is also not properly explained by the prosecution which is fatal to the case of the prosecution. The documents Ex.D1 and D2 and oral evidence of PWs.1 to 3 go to show that there is dispute between the accused no.1 and her husband with PW3 and her husband. PWs.1 to 3 are all members of same family and interested witnesses. Their oral evidence are 47 Spl.C.No.05/2016 not corroborating with each other. The oral evidence of PW4 is also not corroborating with the oral evidence of Pws.1 and 2. The uncorroborated oral evidence of PWs.1 to 3 which is not corroborating with the document Ex.P1 complaint is creates doubt about their oral evidence. In view of their dispute regarding the monetary transaction the oral evidence of PWs.1 to 3 is not sufficient to hold that the accused persons have committed the offences alleged against them. The oral evidence of PWs.6 and 7 are formal in nature. On an appreciation of the evidence on record I am of the opinion that the prosecution has failed to prove the case against the accused for the offences P/U/Secs.323, 448, 354, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x)(xi) of SC & ST (POA) Act, 1989 beyond all reasonable doubt. The prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Hence I answered point no.1 to 6 in the negative.
Point No.7:
48 Spl.C.No.05/2016
37. In view of my findings on point no.1 to 6 above, I proceed to pass the following:
ORDER Acting U/Sec.235(1) of Cr.P.C.
the accused no.1 Smt.Suma and accused no.2 Ravindra are acquitted for the offences P/U/Secs.323, 448, 354, 504 r/w Sec.34 of IPC and U/Sec.3(1)(x), 3(1)(xi) of SC & ST (POA) Act, 1989.
The bail bonds of the accused no.1 and 2 and their sureties shall stand cancelled.
(Dictated to the Judgment Writer, transcribed by him, transcript corrected, signed and then pronounced by me in open court on this the 11th day of December 2018.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
49 Spl.C.No.05/2016ANNEXURE
1. Witnesses examined for the prosecution:
PW1 Divya PW2 Komala PW3 Shashikala PW4 Shankunthalamma PW5 Narashimamurthy PW6 Jayananda PW7 B.M. Narayanaswamy
2.Documents exhibited for the prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW6
Ex.P2 Statement of PW1
Ex.P3 Mahazar
Ex.P3(a) Signature of PW1
Ex.P3(b) Signature of PW7
Ex.P4 Report of Tahsildar regarding caste
Ex.P4(A) Order of DCP
Ex.P4(a) Signature of PW5
Ex.P4(b) Signature of PW7
Ex.P5 FIR
Ex.P5(A) Hand sketch map
Ex.P5(a) Signature of PW7
Ex.P6 to 8 Photos
Ex.P9 &10 Letters issued to AEE, BBMP by PW7
Ex.P9(a) Signatures of PW7
&Ex.P10(a)
Ex.P11 & Requisitions issued by PW7 to
Ex.P12 Tahsildar
Ex.P11(a) Signatures of PW7
50 Spl.C.No.05/2016
& Ex.12(a)
Ex.P13 Permission given by DCP to file charge
sheet
3. Witnesses examined for the defence:
Nil
4. Documents marked for the defence:
Ex.D1 Copy of mahazar
Ex.D2 Certified copy of charge sheet
5. List of material objects:
Nil
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.