Karnataka High Court
Vittal S/O Kallappa @ Kandappa vs Syed Fayum And Ors on 9 December, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL APPEAL NO.200011/2022
BETWEEN:
Vittal S/o Kallappa @ Kandappa,
Aged about: 60 Years,
Occ: Retired Teacher,
R/o: Narayanpur Village,
Tq-Aurad (B),
Dist: Bidar-585401.
... Appellant
(By Sri Bharmagouda K. Patil, Advocate)
And:
1. Syed Fayum S/o Syed Abdul,
Age: 55 years, Occ: Teacher,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
2. Abdul Wahab S/o Syed Ibrahim Ansari,
Age: 88 years, Occ: Agriculture,
R/o: Narayanpur Village,
Tq-Aurad(B),
Dist: Bidar-585327.
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3. Syed Shafi S/o Syed Saleem Ansari,
Age: 40 years, Occ: Agriculture,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
4. Syed Saleem S/o Syed Abdul Wahab Ansari,
Age: 40 years, Occ: Agriculture,
R/o: narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
5. Syed Aleem S/o Syed Abdul Wahab,
Age: 50 years, Occ: Govt. Servant,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
6. Syed Shameem S/o Syed Abdul Wahab,
Age: 35 years, Occ: Private Service,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
7. Syed Ranas S/o Syed Abdul Wahab Ansari,
Age: 48 years, Occ: Agriculture,
R/o: Narayanpur Village,
Tq-Aurad (B),
Dist: Bidar-585327.
8. Syed Rafeeq S/o Abdul Wahab Ansari,
Age: 45 years, Occ: Agriculture & Business,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
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9. Syed Mustafa S/o Syed Abdul Wahab Ansari,
Age: 40 years, Occ: Agriculture,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
10. Syed Murtaza S/o Syed Saleem,
Age: 80 years, Occ: Agriculture,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
11. Syed Shafi S/o Syed Saleem,
Age: 48 years, Occ: Agriculture,
R/o: Narayanpur village,
Tq-Aurad (B),
Dist: Bidar-585327.
12. Prabhu S/o Sharanappa Halage,
Age: 40 years, Occ: Agriculture,
R/o: Narayanpur Village,
Tq-Aurad (B),
Dist: Bidar-585327.
13. The State of Karnataka
Through Aurad (B) Police Station,
Represented by Addl. S.P.P.
High Court of Karnataka,
Kalaburagi Bench-585103.
... Respondents
(Sri Venkatesh C. Mallabadi, Adv., for R1 to 12;
Sri Gururaj V. Hasilkar, HCGP for R13)
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This Criminal Appeal is filed under Section 372 of
the Criminal Procedure Code, 1973, praying to set
aside the judgment dated 01.12.2021 passed by the
Addl. District and Sessions Judge at Bidar in Special
Case (SC/ST) No.17/2016 and convict the
accused/respondents for the alleged offences
punishable under Sections 384, 447, 506, 504 read
with Section 34 of IPC and Section 3(1)(5)(x) of
SC/ST (Prevention of Atrocities) Act, in the interest of
justice and equity.
This appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment
on 27.10.2022, coming on for pronouncement of
Judgment this day, delivered the following:
JUDGMENT
1. The appellant being the husband of complainant and also victim, is challenging the judgment of acquittal passed by Additional District and Sessions Judge, Bidar in Spl.C. (SC/ST) No.17/2016 dated 01.12.2021.
2. The parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.
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3. The factual matrix leading to the case of complainant can be stated in nutshell to the effect that on 03.11.2015 at about 12.00 noon the accused Nos.1 to 12 have threatened to take away the life complainant's family and abused them in filthy language by taking their caste with an intention to degrade them in the society. It is further alleged by the prosecution that the accused have committed criminal tress-pass in the land belongs to complainant and committed theft of jawar fodder, thereby caused loss to the tune of Rs.50,000/-. On these allegations made in the complaint, the Investigating Officer after registering the case carried out investigation and filed the charge-sheet.
4. In response to the summons, the accused have appeared through their counsel and contested the case. The trial Court on the basis of the 6 charge sheet material being prima facie satisfied framed charge against all the accused for the offences alleged against them. The accused have pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove the allegations made against accused, relied on the evidence of PWs.1 to 9 and the documents as per Exs.P1 to P10. The defence got marked Exs.D1 and D2 during the cross-examination of PWs.1 and 4. The accused have denied all the incriminating material evidence appearing against them and claimed that false case is filed. The trial Court after hearing arguments of both sides and on appreciation of evidence has acquitted all the accused from the charges leveled against them.
6. The appellant-victim has challenged correctness and legality of the said judgment of acquittal, 7 contending that PWs.1, 3 and 4 have supported the case of prosecution. The Spot Panchnama as per Ex.P2 is proved through the evidence of PW2. The trial Court has conveniently ignored the said evidence on record and as a result recorded improper reasoning in acquitting the accused. The trial Court without considering the gravity of the offence has acquitted all the accused, holding that the matter is of civil in nature. The approach and appreciation of oral and documentary evidence by the trial Court is contrary to law and evidence on record. Therefore, prayed for allowing the appeal and to convict all the accused for the offences alleged against them.
7. In response to the notice of appeal, respondent Nos.1 to 12 have appeared through their 8 counsel. The respondent No.13 is represented by Additional SPP.
8. The trial Court records have been secured.
9. Heard the arguments of both sides.
10. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that on the basis of complaint filed by Rukmini w/o. Vithal Mankare as per Ex.P1, criminal law was set into motion by registering the case as per Ex.P3. The complaint allegations as per Ex.P1 would go to show that on 03.11.2015 at about 12.00 noon the accused Nos.1 to 12 have threatened to take away the life complainant's family and abused them in filthy language by taking their caste with an intention to degrade them in the society. It is further alleged by the prosecution that the 9 accused have committed criminal tress-pass in the land belongs to complainant and committed theft of jawar fodder, thereby caused loss to the tune of Rs.50,000/-. The complaint is filed on 06.11.2015 after three days of the incident. The genesis of the alleged incident is with regard to dispute over possession of 3 acres 15 guntas land sold by the father-in-law of complainant to accused No.1. The complainant asserts that still she is in possession of disputed land, whereas, the accused No.1 is claiming that since from the date of purchase he is in possession.
11. The order of this Court referred by the trial Court in Para 18 of the judgment in WP No.204854/2014(SC-ST/PTCL) dated 15.06.2020 would go to show that land bearing Survey No.13/4 measuring 3 acres 15 guntas was originally belongs to the father of appellant and 10 his brother Sangam. The said land is "Mazkuri Inam" land i.e. service Inam land which was re- granted to their father under the Karnataka Village Offices Abolition Act, 1961. Later that land was converted as Patta Land and the name of appellant and his brother came to be entered in records on the basis of re-grant. Thereafter, the father of appellant and his brother sold the said land to accused under the registered Sale Deed dated 25.07.2003 and since then they are in possession of property purchased by them. The Tahsildar Aurad-B taluk has initiated proceedings under Sections 4 and 5 of the PTCL Act and ordered for restoring the land in favour of appellant and his brother. The same was questioned in WP No.83387/2009 and this Court by order dated 11.06.2012 has directed the accused No.1 to approach the Appellate 11 Authority and appeal was filed under Section 5(a) of the PTCL Act before Deputy Commissioner. The said appeal came to be dismissed on 16.06.2014. The same was questioned in WP No.204854/2014, which came to be allowed by order dated 16.06.2020 and the impugned order passed by the Deputy Commissioner, Bidar dated 16.06.2014 came to be set aside, holding that PTCL Act is not applicable. The above proceedings with regard to the property in question is not in dispute by the appellant. Keeping in mind the said dispute over the property, the evidence placed on record by the prosecution will have to be appreciated to decide the charges leveled against the accused.
12. The material witnesses relied by the prosecution are PW1 - Rukmini, PW3 - Vaijnath, and PW4 - Vithal. The evidence of these three witnesses is 12 sought to be corroborated by the evidence of Investigating Officer PW9 - B.S. Malgatti. The evidence of remaining witnesses are of not much significant to speak on the complaint allegation as per Ex.P1 and the incident in question.
13. PW1 - Rukmini has deposed to the effect that about 1 and 1/2 years back while herself and her husband PW4 - Vithal were working in their agriculture land at that time about 12 persons came to their land and abused by saying "Mangla maake loude kat dalte". They cut jawar fodder and took the same in tractor by causing damage to more than Rs.50,000/-. PW1 - Rukmini has further deposed to the effect that PW3 - Vaijnath and PW6 - Akbarkhan have witnessed the incident.
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14. PW3 - Vaijnath has deposed to the effect that his land and the land of PW1 - Rukminibai, PW6 - Akbarkhan are adjacent to each other. PW1 - Rukmini belongs to SC Caste and the accused belongs to Muslim Caste. On 03.11.2015 at 12:00 noon all the accused before the Court have abused PW1 - Rukmini and PW4 - Vithal by saying "Mangla maake loude kat dalte" and threatened. Due to which, they came to his land. The accused have cut jawar and jawar fodder by causing damage of more than Rs.10,000/-.
15. PW4 - Vithal, the husband of complainant has deposed to the effect that himself and PW1 - Rukmini belong to SC Caste and accused belong to Muslim Caste. The land bearing Survey No.13/4 measuring 3 acres 15 guntas is a 'Mazkuri Inam' land granted by the Government 14 to his grandfather and they are in possession of the same. On 03.11.2015 at 12:00 noon while himself and his wife PW1 - Rukmini, were in their land, all the accused came to said place and started abusing them by saying "Mangla maake loude kat dalte talwar lavo kat dalte". Thereafter they cut the jawar fodder and carried the same in tractor bearing No.MH-06/AL-2659 by causing damage for more than Rs.50,000/- and all the accused were in possession of deadly weapons like chopper, axe and talwar. On account of accused abusing them in filthy language by taking their caste, they were insulted and humiliated in the society.
16. The prosecution claims that the PW6 -
Akbarkhan S/o. Wahidkhan has purchased jawar fodder in the land belongs to PW4 - Vithal and PW8 - Narayan Maruti, who was working under 15 Akbarkhan have witnessed the incident in question as per the complaint allegation at Ex.P1 and the evidence of PW1 - Rukmini and PW4 - Vithal. However, both of them have not supported the case of prosecution, though they have been subjected to cross-examination, nothing worth material has been brought on record so as to prove any of the allegations made against the accused. Therefore, their evidence cannot be of any much avail to the case of prosecution.
17. PW1 - Rukmini has admitted in her cross-
examination that she is aware about her father- in-law having sold the agriculture land to accused. She has further admitted that after sale of the agriculture land by her father-in-law the accused have raised the crop. These two material admissions of PW1 in her cross- 16 examination would go to show that the sale of agriculture land by her father-in-law and accused being in possession of the said land is admitted. The husband of complainant PW4 - Vithal also admits in his cross-examination that himself and his brother have signed on the sale deed dated 25.07.2003. However, PW4 claims that himself and his brother have signed on the sale deed on account of deception and threat. Undisputedly, PW4 - Vithal nor his brother from the said date of execution of the sale deed have not taken any action that their signatures have been obtained on the sale deed by deception and threat, either by filing complaint or by taking any legal proceedings. PW4 - Vithal also admits the possession of the land sold to the accused. However, he claims that the accused are in possession of the agriculture land illegally. PW4 17
- Vithal has admitted that no any action was taken against accused for being in illegal possession. When that being the case, there is no question of accused having committed criminal tress-pass into the agriculture land purchased by them or having committed theft of jawar fodder as alleged in the complaint. In view of the order of this Court in WP No.204854/2014 dated 15.06.2020 the order passed by the Deputy Commissioner, Bidar dated 15.06.2014 and that of Assistant Commissioner, Bidar dated 01.10.2009 came to be quashed, by holding that the authority has no power to initiate the proceedings under Sections 4 and 5 of the PTCL Act, since the land is granted under the Karnataka Village Offices Abolition Act, the PTCL Act is not applicable. In view of the above referred admissions of PW1 - 18
Rukmini and PW4 - Vithal, the land bearing Survey No.13/4 measuring 3 acres 15 guntas is sold to accused under the registered sale deed dated 25.07.2003 and the accused are in possession of said land since the date of purchase. Unless, the issue of title and possession is decided before appropriate forum, in questioning the sale deed dated 25.07.2003, prima facie, title and possession in view of the above referred evidence on record has to be accepted.
18. PW3 - Vaijnath claims to be eyewitness to the incident in question and he claims ignorance of accused having purchased agriculture land and harvesting the crop in the land purchased by them. PW3 has admitted in his cross- examination that himself and one Ashok and Apparao are brothers. However, he places 19 ignorance of accused having filed case against himself and Apparao in Aurad Court and took back possession of 3 acres land, since then, they are not in good terms with accused No.1. PW3 - Vaijnath admits in his cross-examination that due to accused filing civil case against them they are not in talking terms. PW3 - Vaijnath is admittedly neighbouring land holder and he was not present at the place of incident. However, he claims that on account of threat of accused, PW1 - Rukmini and PW4 - Vithal came running to his land under fear. PW3 - Vaijnath has further admitted that he has not heard the accused abusing PW1 - Rukmini in filthy language by taking her caste. The above referred admissions of PW3 - Vaijnath during the course of his cross- examination creates serious doubt of he having witnessed the incident in question. On the other 20 hand, this witness being chosen by PW1 - Rukmini and PW4 - Vithal to speak against them on account of rivalry between PW3 - Vaijnath and accused cannot be ruled out.
19. The learned counsel for the appellant has argued that the trial Court has not considered criminal liability and the Caste Certificate as per Ex.P5. The trial Court has committed error in holding that the nature of dispute between complainant and accused is that of civil in nature. In view of the reasons recorded as above, it has been observed and held that prima facie, the accused have title over the property in question by virtue of Sale Deed dated 25.07.2003 and they are in possession of the same. Therefore the owner of the property cannot be charged of committing criminal tress-pass and committing theft of jawar fodder. Hence, there is no question of arising 21 criminal liability with regard to the title and possession of the agriculture land purchased by the accused under the registered Sale Deed dated 25.07.2003, in order to attract penal provisions of Sections 384 and 447 of IPC. The general assertion of PW1 - Rukmini and PW4 - Vithal that accused have abused in filthy language and threatened them cannot be said as sufficient evidence to meet the requirement of the offences under Sections 504 and 506 of IPC.
20. The learned counsel for the accused has relied on the decision of co-ordinate Bench of this Court in Crl.P. No.201173/2017 dated 06.09.2022 - Saraswati W/o. Basawaraj Kuragod and Another vs. State of Karnataka and Another, wherein by relying on the decision of Hon'ble Apex Court referred in Para 13 of judgment has quashed the proceedings registered under 22 Sections 3(i), 3(iv), 3(xiii) of SC/ST Act. This Court has accepted the principles enunciated in the referred decision that although the offences are covered under the SC/ST Act, pre-existing dispute being civil in nature between the parties arising on account of possession over the property would not disclose an offence under the Act. In the present case also there is a dispute between the complainant and the accused over possession of the land bearing Survey No.13/4 measuring 3 acres 15 guntas purchased under the registered Sale Deed dated 25.07.2003. The dispute being civil in nature between the parties, arising on account of possession over the property would not make out an offence under the provisions of SC/ST Act. Therefore, I am unable to accept the contention of the learned counsel for the appellant that the trial Court has 23 acquitted all the accused only on the finding that the dispute between the parties is of civil in nature. The trial Court has also appreciated the evidence of PW1 - Rukmini, PW3 - Vaijnath and PW4 - Vithal in holding that the prosecution has failed to prove any of the charges leveled against the accused. The findings recorded by the trial Court in exonerating all the accused from the charges leveled against them is based on the material evidence on record and the same does not call for any interference by this Court. Consequently, I proceed to pass the following:
ORDER The appeal filed by the appellant/victim is hereby dismissed.
The judgment of acquittal passed by Additional District and Sessions Judge, Bidar in Spl.C. (SC/ST) No.17/2016 dated 01.12.2021 is hereby confirmed.24
The Registry is directed to send the copy of judgment along with the Records to the Trial Court.
Sd/-
JUDGE Sbs*