Karnataka High Court
Basavaraj S/O Dyavanna Varkoor And Ors vs The State Of Karnataka on 31 January, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.3638/2012
Between:
1. Basavaraj S/o Dyavanna Varkoor
Age: 30 years, Occ: Agriculture
2. Dharmanna S/o Halleppa Natikar
Age: 25 years, Occ: Agriculture
3. Mahadevappa S/o Dodda Dyavanna
Age: 32 years, Occ: Agriculture
4. Girilingappa S/o Dodda Sabanna
Age: 35 years, Occ: Agriculture
5. Raghavendra S/o Gopal Bandalli
Age: 35 years, Occ: Agriculture
6. Ramlingappa S/o Mallappa Gadi
Age: 35 years, Occ: Agriculture
7. Honnappa S/o Yankappa Bandalli
Age: 30 years, Occ: Agriculture
8. Hanmanth S/o Shankarappa Gadebaloor
Age: 30 years, Occ: Agriculture
CRL.A.No.3638/2012
2
9. Amateppa S/o Sabana Kotiger
Age: 45 years, Occ: Agriculture
10. Narasappa S/o Basappa Byrappanor
Age: 40 years, Occ: Agriculture
All are R/o Honagera, Tq. Yadgir
Dist. Yadgir
... Appellants
(By Sri Mahantesh H. Desai, Advocate)
And:
The State of Karnataka
Through Yadgir Grameen P.S.
Represented by Addl. S.P.P.
Hon'ble High Court of Karnataka
Circuit Bench, Gulbarga
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
****
This Criminal Appeal is filed under Section 374 (2) of
the Code of Criminal Procedure, praying to set aside the
impugned judgment of conviction dated 22.08.2012 and
order on sentence dated 24.08.2012 passed by the Court
of Special Judge/Sessions Judge at Yadgir in Special Case
No.77/2010 by allowing this appeal, consequently acquit
the appellants for the offences punishable under Sections
143, 147, 323, 324, 354, 427, 429, 504, 506 r/w. Section
149 of Indian Penal Code and under Sections 3(1)(x) and
CRL.A.No.3638/2012
3
3(1)(xi) of Scheduled Caste/Scheduled Tribe (Prevention of
Atrocities) Act, 1989.
This Criminal Appeal coming on for final hearing this
day, the Court delivered the following:
JUDGMENT
The present appellants who were accused nos.1 to 10 in Special Case No.77/2010 in the Court of Special/Sessions Judge at Yadgiri (hereinafter for brevity referred to as 'trial Court'), have challenged the judgment of conviction dated 22.08.2012 and order on sentence dated 24.08.2012, where they are convicted for the offences punishable under sections 143, 147, 323, 324, 354, 427, 429, 504, 506 read with section 149 of Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and under sections 3(1) (x) and 3(1) (xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 CRL.A.No.3638/2012 4 (hereinafter for brevity referred to as 'SC/ST Act') and were sentenced accordingly.
2. The summary of the charges levelled against the accused was that on 02.01.2010 at about 6.30 p.m., in front Sabamma Temple situated at Honagera village, within the limits of respondent/ complainant police station, all the accused forming an unlawful assembly and armed with stones, assaulted CW-1 Smt. Sabamma and CW-7 Smt. Ratnamma and outraged their modesty and further committed mischief by killing a goat belonging to CW-4 Hanamanth Kolli by hitting it with a stone. Further, knowing that the complainant Sabamma and other material charge sheet witnesses were belonging to the Scheduled Caste, intentionally insulted them by abusing them taking the name of their caste and threatened them of dire consequences and also assaulted several of the material witnesses and CRL.A.No.3638/2012 5 thereby have committed offences punishable under sections 143, 147, 323, 324, 354, 427, 429, 504, 506 read with section 149 of IPC and under section 3 (1)
(x) and 3 (1) (xi) of SC/ ST Act.
3. Charges were framed against all the accused for the alleged offences. Since they pleaded not guilty, trial was held, wherein the prosecution examined sixteen witnesses as PW-1 to PW-16 and got marked Ex.P-1 to Ex.P-15 and material objects M.O.1 to M.O.4. From the accused side, portions of the statement of PW-7 and PW-8 were marked at Ex.D-1, Ex.D-2 and Ex.D-3 in the cross-examination of prosecution witnesses. After hearing both side, the trial Court, by its impugned judgment and order on sentence, convicted the accused for the offences punishable under sections 143, 147, 323, 324, 354, 427, 429, 504, 506 read with section 149 of IPC and under sections 3(1) (x) and 3(1) (xi) of SC/ST Act and CRL.A.No.3638/2012 6 sentenced them accordingly. It is against the said judgment of conviction and order on sentence, the accused have preferred this appeal.
4. Learned High Court Government Pleader is appearing for the respondent.
5. The records from the Court below were called for and the same are placed before this Court.
6. Heard the arguments from both side and perused the materials placed before this Court.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. In view of the above, the points that arise for my consideration are:
(i) Whether the prosecution has proved that on 02.01.2010 at about 6.30 p.m., in CRL.A.No.3638/2012 7 front of Sabamma Temple situated at Honagera Village, all the accused forming an unlawful assembly and in furtherance of their common object, committed the offence of rioting and thereby committed the offences punishable under sections 143 and 147 of Indian Penal Code?
(ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Sl.No.(i) above, all the accused in furtherance of their common object, through accused nos.4, 5 and 6 voluntarily caused hurt to CW-5 and CW-6 and thereby committed offences punishable under sections 323, 324 read with section 149 of Indian Penal Code?
(iii) Whether the prosecution has proved
beyond reasonable doubt that on the
date, time and place mentioned at
Sl.No.(i) above, all the accused in
furtherance of their common object,
through accused nos.1 and 2 who
CRL.A.No.3638/2012
8
assaulted CW-1 Smt. Sabamma and CW-7
Smt. Ratnamma who were belonging to
Madiga caste, have committed an offence punishable under section 354 read with section 149 of Indian Penal Code and under section 3 (1) (xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act?
(iv) Whether the prosecution has proved
beyond reasonable doubt that on the
date, time and place mentioned at
Sl.No.(i) above, all the accused in
furtherance of their common object,
through accused no.8 committed mischief by killing a goat belonging to CW-4 Hanamanth Kolli by hitting it with a stone and thereby committed an offence punishable under section 429 read with section 149 of Indian Penal Code?
(v) Whether the prosecution has proved
beyond reasonable doubt that on the
date, time and place mentioned at
Sl.No.(i) above, all the accused in
CRL.A.No.3638/2012
9
furtherance of their common object, have demolished a platform (katta-PÀmÉÖ) and thereby have committed an offence punishable under section 427 of Indian Penal Code?
(vi) Whether the prosecution has proved
beyond reasonable doubt that on the
date, time and place mentioned at
Sl.No.(i) above, all the accused in
furtherance of their common object and knowing fully well that complainant Sabamma and witnesses were belonging to Scheduled Caste, have intentionally insulted them by abusing them by taking the name of their caste and provoked them to cause breach of peace and thereby have committed an offence punishable under section 504 read with section 149 of Indian Penal Code and under section 3(1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act?
CRL.A.No.3638/2012 10 (vii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Sl.No.(i) above, all the accused in furtherance of their common object, threatened the complainant Sabamma
and other witnesses of dire consequences to their life and thereby committed the offence punishable under section 506 read with section 149 of Indian Penal Code?
(viii) Whether the judgment of conviction and order on sentence impugned in this appeal deserves any interference at the hands of this Court?
9. From a reading of the evidence of the prosecution witnesses, the undisputed fact remains that both the accused as well the material witnesses, more particularly, PW-1, PW-2, PW-3, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11, PW-12, PW-13 and PW- 14 belong to the same village. It is also not in dispute that among those witnesses, PW-6 Smt.Sabamma, CRL.A.No.3638/2012 11 PW-2 Hanamanth, PW-3 Sabanna S/o Ningappa, PW-7 Mallikarjun, PW-8 Smt. Ratnamma and PW-13 Sabanna S/o Chandramappa were belonging to Scheduled Caste. It is also not in dispute that a platform/stage (katta-PÀmÉÖ) was built in Honagera village by the people belonging to Scheduled Caste and had named it as 'Babu Jagjeevan Ram Katta'. Further, it is not in dispute that on 02.01.2010 in the evening at about 6.30 p.m., the said platform/stage was demolished.
The evidence of the prosecution witnesses on these points have not been denied or disputed from the accused side in the cross-examination of the prosecution witnesses, as such, these facts remain undisputed. However, the point which the prosecution further required to prove is that the alleged act of demolition of the said platform/stage and alleged act of assault and insulting some of the charge sheet CRL.A.No.3638/2012 12 material witnesses by taking the name of their caste and thus the offences alleged have been committed by none else than the present appellants/accused nos.1 to 10 only. It is in this regard, the evidence of the prosecution witnesses is required to be analysed.
10. So far as the alleged incident and committing the alleged offences are concerned, the prosecution has examined PW-2, PW-3, PW-6, PW-7, PW-8 projecting them as injured witnesses and PW-9, PW-10, PW-11, PW-12, PW-13 and PW-14 as the witnesses to the alleged incident.
11. PW-2 Hanamanth has stated that on the date of the incident, in the evening, while he was at home, heard some noise of disturbance from outside. After going outside, he noticed that near Sabamma Temple a platform/stage was demolished. When he went there, accused no.3 Mahadevappa assaulted him CRL.A.No.3638/2012 13 on his chest with a stone, at which he fell down. He does not know who had assembled in the group and which platform was demolished.
12. PW-3 Sabanna has stated that on the evening of the date of incident, while he was coming near Devara Sabamma temple, all the accused abused him taking the name of his caste and accused no.5 Raghavendra assaulted him on his face with a stone and on left side of rib, due to which he fell unconscious. He also stated that accused assaulted him because these people had constructed a platform/stage. The witness has identified the stones at M.O.1 to M.O.4 as the stones used for assaulting them.
13. PW-6 Smt. Sabamma, who is the complainant in the case, though has stated that all the accused are residents of her village and she belongs CRL.A.No.3638/2012 14 to Scheduled Caste, but she pleaded her total ignorance about the alleged incident. Further, she also stated that she has not lodged any complaint against any of the accused with respect to the alleged incident. Though she was permitted to be cross- examined by the prosecution, after treating her as hostile witness, still the prosecution could not get any support from her.
14. PW-7 - Mallikarjuna in his examination-in- chief has stated that all the people belonging to his community i.e. Madiga (Schedule Caste) had constructed a plat form/stage (katta-PÀmÉÖ) named after Babu Jagajeevana Ram near Saabamma Temple in their village. Three days after putting up the said construction, while he was near the temple, all the accused demolished the said katte and they also abused them as "madiga, children of a bitch" by CRL.A.No.3638/2012 15 taking the name of their caste. He has further stated that accused No.4 assaulted him with a club and stones to his right leg and right hand. Similarly, accused also assaulted PW-6, CW-7, PW-3. He further stated that in the incident, getting hurt by a stone, a baby goat also died. He has identified the stones at MO-1 to MO-4.
15. PW-8 - Smt. Ratnamma has stated that she had come to her parental house for delivery as she was carrying and that on the date of incident, since some disturbance was going on, to see the same, she went to Saabamma temple. The accused damaged the plat form/stage which is called "flag pole platform". At that time, a quarrel took place between the accused and the people of her community. While she was standing near the place, without participating in it, the accused No.2 assaulted on her ribs (¥ÀPÀÌr) with hand, at which she fell unconscious. She does CRL.A.No.3638/2012 16 not know what happened thereafter. She has further stated that as at the time of incident, she was a pregnant lady of nine months.
Apart from the above, with respect to the incident, the prosecution has also examined six witnesses as PW-9, PW-10, PW-11, PW-12, PW-13 and PW-14 showing them as eye witnesses to the alleged incident.
16. PW-9 - Mallappa, S/o. Shankrappa Hosamani, has stated that on 01-01-2010, at about 6:30 p.m., while he was near Saabamma temple plat form/stage, all the accused, all of a sudden, came there and stating that scheduled caste community people have put up a stage, started assaulting PW-2, PW-3, PW-6, PW-7 and PW-8 with stones and clubs. He also stated that the accused got the stage demolished. After demolishing the stage/platform, CRL.A.No.3638/2012 17 they have beaten to all and stating that, they can lodge a complaint, the assailants left the place. The witness has also identified MO-1 to MO-4, as the stones used in the incident.
17. PW-10 - Mallappa, S/o.Channabasappa Konkalra has stated that, as on the date of the incident, while he was coming near the bus stand of his village, he saw a gathering of people near Saabammana katte (plat form). A quarrel was going with regard to platform/stage between the residents of the village and his community residents of his area. He did not see what happened in that quarrel as to who did which act against whom and who scolded whom. Though he was subjected to cross- examination by the prosecution, after treating him as hostile, the prosecution could not get any support from him.
CRL.A.No.3638/201218
18. PW-11 - Sanna Shivappa has stated that, people belonging to his community had put up a stage in front of Saabamma temple in his village. All the people of his village jointly came and abused PW-6 by taking the name of his caste. The accused assaulted Saabbamma, Rathnamma, Mallappa, Sabanna, Hanamanta with the stone and clubs. He saw them assaulting those people. However, he stated that he could not identify the stones.
19. PW-12 - Honnappa has stated that, as on the date of the incident, in the evening at about 5.00 p.m., the accused came near Saabamma temple to demolish the stage/platform put up there while he along with Sanna Shivappa were sitting on the katte of his house. While the accused were demolishing the platform/katte, Sabamma and Rathnamma objected to the same. The accused assaulted them with hands. CRL.A.No.3638/2012 19 Many people had gathered there and he joined by Shivappa and Mallappa resolved the dispute.
20. PW-13 - Saabanna has stated that the plat form in the name of Babu Jagajeevana ram was built by his community people who were belonging to schedule caste. Within a day after putting up the said stage, the accused joined by other people demolished the said stage/plat form. He has stated that he does not know anything more than this. He has also stated that he does not know about the accused assaulting the complainant and other witnesses which he has not seen.
21. PW-14 - Thimmanna in his examination-in- chief has stated that at the time of incident, he was in his house and the accused and other Kabbaliga people demolished the plat form. Seeing that the plat form was demolished, he returned home. He does not CRL.A.No.3638/2012 20 know what happened thereafter and also who assaulted the complainant and other witnesses.
22. Learned counsel for the appellants trying to make out the differences in the narration of the alleged incident by these witnesses, in his argument, submitted that, there is no consonance and uniformity in the description of the incident by the alleged injured witnesses as well the eye witnesses. The evidence of each witness varies at greater length to that of the other, as such, the evidence of none of the witnesses can be safely believed and acted upon.
He also says that even though the witnesses have mentioned about the use of clubs in the alleged incident, but admittedly, the Investigating Officer has neither recovered those clubs nor even shown that he has made any attempt to recover and seize those clubs.
CRL.A.No.3638/201221
With this, the learned counsel for appellants submits that the versions of the alleged material witnesses in this regard are totally unbelievable. He also says that the opinion of the Doctor with respect to the injured persons also goes to show that, none of the alleged injured witnesses had sustained any external injuries and all the alleged injuries were in the form of tenderness and pain which in the alleged circumstance of the case leads to serious doubt about any of the alleged injured witnesses sustaining any injury and accused assaulting any of the witnesses.
While concluding, he submits that the prosecution case, at the maximum, may lead to an inference that some minor altercations might have taken place between two communities in a village. However, it has been enlarged beyond any limits and a trivial issue has been exaggerated by the charge sheet witnesses and the Police, for the reasons best CRL.A.No.3638/2012 22 known to them. With this, he prayed for acquittal of the accused in the case.
23. Learned High Court Government Pleader in his brief argument submitted that, the material witnesses have supported the case of the prosecution, in as much as, except the complainant, the medical evidence also corroborates the evidence of material witnesses. The seizure of MO-1 to MO-4 also goes to show that the stones were also used by the accused in the commission of the crime, as such, the Trial Court has rightly convicted the accused for the alleged offences.
24. Prima facie, the examination-in-chief portion of these alleged material and important witnesses, from a superficial reading, though gives an impression that many of the witnesses appear to have supported the case of the prosecution, but, the CRL.A.No.3638/2012 23 evidence of each of those material witnesses requires to be analysed in detail before believing their versions. Among the alleged injured witnesses in the incident, it is PW-2 - Hanamanta, who has set the prosecution case further by leading his evidence as an injured witness.
A careful reading of his evidence would go to show that according to him, he went to the place of offence only after hearing some noise from that place, which means by the time he approached the stage/platform, probably the incident must have already commenced. The witness has stated that when he went there, accused No.3 - Mahadevappa assaulted on his chest with a stone, due to which he fell down. He was immediately brought to his house. After drinking water, he regained his conscious. If the said statement is accepted on its face value, it goes to CRL.A.No.3638/2012 24 show that this witness is said to have sustained assault to his chest, and, he lost his consciousness.
Therefore, about the other details of the incident and also about the role of the other accused, this witness is totally unaware and is not capable of revealing anything. Furthermore, no where he has stated as to why any of the accused much less accused No.3 - Mahadevappa should assault him for no reasons. The witness nowhere has stated as to why he was assaulted by anyone. What made anybody to assault him is also not known from his evidence. As such, in an altercation which might have been going on between the two large groups in a village, merely because a person goes there, why he must be attacked or assaulted by anyone there, remains a question. As such, his evidence that he was assaulted by accused No.3 does not prove to be safe to believe. CRL.A.No.3638/2012 25
Added to the above, the witness has not stated as to why such a quarrel was going on in the spot. When he is said to have moved to the spot and also said to have been assaulted by one of the members there, then, it is expected that, at least he is aware as to why such quarrel was going on, either at the time when he visited the spot or at least thereafter before he giving his statement to the Investigating Officer or at least giving his evidence in the Court. But no where, the witness has stated as to the reason for the alleged quarrel in his village.
Furthermore, the witness is not consistent in his version. In his examination-in-chief, he has stated that the incident has occurred at about 7:00 or 7:30 p.m., whereas, in his cross-examination, he has stated that, it was between 5:00 and 5:30 p.m. when the incident took place. He has also stated that he went to the place after ten minutes after the CRL.A.No.3638/2012 26 commencement of the quarrel. Therefore, he could not say as to what was the cause for the alleged quarrel and what transpired in the said variation of ten minutes.
In addition to the above, in his cross- examination, at one place, he has stated that, when the quarrel took place, there were about 100 to 200 people assembled there. In the very same cross- examination, on the question put from the side of the another accused, he has stated that there were thousands of people who had gathered there. These greater variations that appear in the evidence of this witness about the details of the incident and in the absence of any reason given by him as to why anybody should assault him on his chest, it appears that, it is not safe to believe the evidence of PW-2. CRL.A.No.3638/2012 27
25. PW-3 - Sabanna in his examination-in-chief has stated that, all of a sudden, the accused came and abused him in a filthy language taking the name of his caste and threatened him of assaulting him while he was returning from his land. It is surprising as to why should a group of people without any reasons and all of a sudden, tell a passerby, in a public place, that they would beat him. The witness has stated that after scolding him, accused No.5 assaulted him with a stone on his face and left side of the ribs, at which he fell unconscious. This statement of the witness also, in the absence of the witness telling as to why all of a sudden a large group of people should scold him and assault him, shows that his statement does not inspire confidence to believe.
Furthermore, in his cross-examination, the witness has stated that at the time of incident, there was a gathering of 100 to 150 persons and there was CRL.A.No.3638/2012 28 darkness, as such, the face of one person was not clearly visible to another. Therefore, even according to this witness, there was darkness and one could not see the face of the other. As such, one person identifying the other by looking at him would be a remote chance.
This witness has further admitted that there was a rivalry between Kabbaliga community in the village to which the accused belong and the people of his community. Thus the evidence of PW-3 also shows that, the same is not safe to believe and act upon.
26. The next alleged injured witness is PW-6 - Sabamma, who, though was the complainant in the case, but has turned totally hostile to the prosecution case. Except stating that she belongs to a schedule caste community, she has not supported the case of the prosecution even to a smallest extent. She has CRL.A.No.3638/2012 29 gone to the extent of stating that she has not given any complaint before the Police in connection with the alleged incident. She has also stated that she does not know anything about the incident, as such, one of the primary and material alleged injured witness has not supported the case of the prosecution.
27. The next alleged injured witness PW-7 - Mallikarjuna and the alleged two more eye witnesses i.e. PW-9 and PW-11 have stated that in the alleged commission of crime, the accused made use of the clubs also. Admittedly, not even a single club has been seized or recovered by the Investigating Officer in the case. When the Investigating Officer is said to have seized four stones from the spot, no reasons are forthcoming as to why he did not put any effort in identifying and seizing the alleged clubs during the process of investigation.
CRL.A.No.3638/201230
PW-7, though has stated that he was assaulted by accused No.4, but he has stated that he was assaulted by the accused both by club and by stone. Except this witness, it is nobody's case that any one of the accused has used more than one weapon at a time. Even this witness also has not given a detailed account as to how come at the same time, he was assaulted by one and only one accused with two different types of weapons. More importantly, this witness in his cross-examination has stated that it was the residents of his village who had demolished the platform/stage and who have abused them. Therefore, when according to this witness, it was the residents of the village who have done the alleged act, then, it is not known as to how come he is cornering only the present appellants, i.e. accused Nos.1 to 10 as the accused persons in the commission of the crime.
CRL.A.No.3638/201231
Interestingly, this witness nowhere speaks about the role of any other accused in the alleged incident. He makes an omnibus statement that the accused assaulted few more persons in the spot. The prosecution also has not made any attempt in eliciting further details from him about the incident. According to this witness, it was only accused No.4 who assaulted him, whereas, PW-9 and PW-11 have stated that all the accused assaulted this witness i.e. PW-7. Therefore, there is variation in the evidence of the alleged eye witnesses to the incident and the alleged injured, as such, the evidence of PW-7 also is not safe to believe.
28. PW-8 - Smt. Ratnamma has stated that as on the date of incident, she was a pregnant lady of nine months' pregnancy and she gave birth to a child eight days after the incident.
CRL.A.No.3638/201232
PW-4 - the Doctor who claims to have examined this lady after the incident has in his evidence stated that when he examined PW-8 (CW-7), she was not pregnant. Thus, a Medical Doctor categorically after examining a lady (PW-8) says that she was not pregnant, whereas, she claims that she was nine months' pregnant as at the time of incident. Thus there is a greater variation in the evidence of two important and material witnesses with respect to one alleged fact in the incident.
All other material witnesses examined by the prosecution who have all supported the case of the prosecution stated that the alleged demolition in the incident was of a stage/platform named after Babu Jagajeevan ram. PW-8 is the only lady who has called it as a "flag pole platform" and has not called it as a mere platform or a stage. None else except this witness, has identified it as a flag pole platform. CRL.A.No.3638/2012 33
Finally, like PW-7, even this witness (PW-8) also has stated that all the residents of her village had joined together and demolished the flag pole platform. Thus even according to her, it was an act of the residents of the village and not particularly the present accused. She has also not stated that among those people, who had demolished the flag pole platform and that the accused were also the parties. Therefore, the evidence of PW-8 also proves to be not safe to believe.
29. The above alleged injured witnesses i.e. PW-2, PW-3, PW-6, PW-7, PW-8 in their evidences have stated that they were assaulted with clubs and stones. If that were to be believed, it would go to show that the attack alleged to have been made by the accused would have been so grave that necessarily by the alleged assault, they should have sustained some grievous injuries. But according to CRL.A.No.3638/2012 34 PW-4 - Doctor and the Wound Certificates at Exs.P-2, P-3, P-4, P-5 and P-6, none of the injured examined by him had sustained any external injuries. All the alleged injuries said to have been sustained by these injured witnesses were only tenderness and pain on different parts of the body. Therefore, the evidence of these witnesses that they were assaulted with stones and clubs, but sustained no external injuries, except tenderness, also leads to a suspicion about the gravity of the alleged incident and about the genuinity of anyone assaulting the other using any stones or clubs. Further, though PW-4, PW-7, P-11 and PW-9 have stated that the injured were also assaulted with clubs, but the Doctor as PW-4 nowhere whispered about the possibility of any of the injuries caused by use of club or stone. His evidence is totally silent about the clubs or use of any stones in causing injuries. These CRL.A.No.3638/2012 35 aspects also matter in suspecting the evidence of the alleged injured witnesses.
30. The second set of witnesses, as already observed above, is the alleged eye witnesses from PW-9 to PW-14. Among these eye witnesses, as observed above, PW-9 and PW-11 speak about the use of club by the accused, as discussed herein above. The prosecution has not placed any reason for not recovering or seizure of any of the clubs much less the Investigating Officer also in his evidence has remained totally silent about the alleged use of club in the alleged commission of crime.
31. According to prosecution, the date of alleged incident was 2nd January 2010, whereas, PW-9 in his evidence, at more than one place, has repeatedly stated that the date of incident was 01-01-2010. Thus, the alleged eye witness gives CRL.A.No.3638/2012 36 totally a different date as to the date of incident than what the case of the prosecution is.
Secondly, like PW-3, PW-13 and PW-14, this witness (PW-9) also has stated that at the time of incident, there was darkness and nothing was visible at a distance. Therefore, even according to this witness, it was not possible to see the act of the alleged assailants and their identity.
In addition to the above, the evidence of PW-9 would also go to show that in the incident, there were 300 to 400 persons. He has stated that he could not say among those 300 to 400 persons, where the accused were. Further, he has stated that he could not specifically say that among those 300 to 400 persons, it was these accused who had destroyed or damaged the platform/stage. Thus, this witness though claims to be an eye witness must have seen CRL.A.No.3638/2012 37 some quarrel but was unable to say that in the said quarrel, the accused were also present and that they had taken active role in demolishing the stage and assaulting the alleged injured witnesses. Therefore, the evidence of PW-9 is also not safe to believe.
32. PW-10, as already observed above, has turned hostile to prosecution, except stating that a quarrel took place between the people of his community and the residents of the village, he has not stated anything. Therefore, the evidence of this alleged eye witness is of no use to the prosecution.
33. PW-11 in his evidence has stated that all the people of his village came to PW-6 and abused him by taking the name of his caste.
Thus, as an alleged eye witness, if his statement were to be believed, it is not accused Nos.1 to 10 who committed the alleged act, but it was all the villagers CRL.A.No.3638/2012 38 in his village who have committed the act. Further, this witness in his same evidence has not stated that it was the accused who damaged the plat form/stage. He states that they got the platform destroyed. Therefore, getting a thing destroyed and destroying a thing by themselves are two different aspects which the prosecution could not able to bifurcate in this case through this witness.
34. PW-12 has stated nothing except stating that accused assaulted CW-1 and CW-7 with hands. No where this witness has stated about any of the accused using any of the weapons much less stones and clubs in the alleged commission of crime. On the other hand, this witness says that it was himself joined by others pacified both side. Thus, this witness claims to be an eye witness for the entire incident. Had really the accused committed the alleged acts attributed against them in the charge sheet, then, this CRL.A.No.3638/2012 39 witness should have necessarily witnessed the same and stated in his evidence the role of each of the accused. Incidentally, he whispers the name of no accused in his statement in his evidence and further no where whispers about the use of any of the weapons. This goes to show that the alleged incident of attacking the alleged injured witnesses with stones and clubs is totally an exaggerated version of the prosecution.
35. PW-13 also has stated that the demolition of the stage/platform was not just by the accused but by various other persons. He has also stated that he does not know anything and he is also not aware about the alleged assault made by the accused against the complainant and other witnesses. But the said witness in his cross-examination has admitted a suggestion as true that, at the time of the alleged incident, there was a gathering of 100 to 150 people CRL.A.No.3638/2012 40 and because of darkness, the face of one person was not visible to the other. By stating so, this witness also join PW-3 and PW-9 to say that, there was darkness and the identify of the people could not be ascertained.
36. PW-14 has in no way improved the case of the prosecution than what PW-13 has done. Even he has also not stated that it was the accused alone who demolished the stage/plat form but he has named that it was Kabbaliga community people. Admittedly, majority population of the village belong to Kabbaliga community, as such, how come the alleged Kabbaliga community people can be confined only to the present accused remains as a doubt in the case of the prosecution. Further, this witness also on the similar lines of PW-13 has stated in his cross-examination that since there was darkness at the time of incident, one person was not visible to the other. Thus, he has CRL.A.No.3638/2012 41 joined the fray of other important and major eye witnesses to say that, darkness has prevented in identifying the assailants. Therefore, the prosecution could not get the benefit from the evidence of this eye witness also.
37. Thus, from the above analysis, it can be seen that apart from the evidence of the injured eye witnesses, the evidence of alleged eye witnesses i.e. PW-9, PW-10, PW-11, PW-12, PW-13 and PW-14 also has shown that their evidences are not safe to believe and act upon. Thus, regarding the occurrence of the alleged incident, neither any of the alleged injured witnesses nor any of the alleged eye witnesses could able to give a clear, complete and reliable evidence. When even according to many of them, there were 200 to 300 people gathered there and there was total darkness and the face of each other could not be identified, it is hard to believe that CRL.A.No.3638/2012 42 it was only the present ten accused persons who have committed the alleged act.
38. Further, as observed above, many of the witnesses have also stated that it was the residents of their village who have committed the act. It is nobody's case that accused Nos.1 to 10 were the only residents in the village. Thus apart from the accused, there was a gathering of not less than 200 to 300 in the place and it is that gathering which is said to have destroyed the platform which is alleged to be the cause for the incident, according to the prosecution. Thus, though the witnesses supporting the prosecution case appear to be good in number, but their reliability and the quality of their evidence have proved to be not safe to believe their version.
39. In addition to the above, the evidence of the Medical Doctor would also go to show that none of the CRL.A.No.3638/2012 43 witnesses have sustained any external injuries. As already discussed above, had really the incident taken place in such a gravity as depicted by the prosecution, then, it is hard to believe that no alleged injured sustained any external injuries, despite making use of a large number of stones and clubs.
40. The Investigating Officer has claimed that he has recovered four stones from the scene of offence under panchanama as per Ex.P-1. In that regard, the prosecution has examined PW-1. A reading of the evidence of PW-1 would go to show that though the witness has supported the case of the prosecution stating that the Police have drawn the panchanama in his presence, but, the very same witness has shown his over enthusiasm stating that it was himself who has shown the spot of the offence to the Police whereas the case of the prosecution is that CRL.A.No.3638/2012 44 it was the complainant who had shown them the spot of the offence but not this witness.
Secondly, this witness who has identified MO-1 to MO-4 as the stones seized from the place of the offence, has in his cross-examination stated that, he could able to identify those stones because he has selected those four stones and given them to the Police. When the panch witness has selected the stones and delivered them to the Police, it is highly surprising that the Police have accepted them as the weapons used in the commission of a crime, without even ascertaining about their use in the commission of the crime through any of the eye witnesses including the injured witnesses. Therefore, the alleged seizure of the stones at MO-1 to MO-4 also shows that there is no proof to believe that they were the ones used in the commission of the crime. Thus, when the prosecution though could able to present considerable CRL.A.No.3638/2012 45 number of witnesses in support of its case, but, as analysed above, the quality of evidence given by them is not sufficient to believe their version as trust worthy and reliable. In such a situation, it is not safe to rely upon the evidence of those witnesses. As such, it cannot be held that the prosecution has proved the alleged guilt against the accused beyond reasonable doubt. Since there exists element of several doubts in the case of the prosecution, naturally, the benefit of the same should be given to the accused.
However, the trial Court without analysing the evidence of the prosecution witnesses meticulously has embraced them on their face value and must have been carried away by the alleged total number of witnesses shown to have been given their evidence supporting the case of the prosecution rather than critically evaluating the reliability and dependability of CRL.A.No.3638/2012 46 their evidence. This has led the Trial Court to pronounce the judgment of conviction.
Since the said analysis now proved to be not a correct analysis and since it is now proved that the prosecution case consists lot of inconsistencies and the evidence of the material witnesses fail to prove that they are safe to rely upon, I am of the view that giving the benefit of doubt, the accused persons deserve to be acquitted of the alleged offences levelled against them.
Accordingly, I proceed to pass the following:-
ORDER [i] The appeal is allowed;
[ii] The impugned judgment of conviction dated 22-08-2012 and order on sentence dated 24-08-2012 passed by the learned Special/Sessions Judge at Yadgiri, in Special Case No.77/2010 is set aside; CRL.A.No.3638/2012 47
[iii] The accused Nos.1 to 10, viz. (1)Basavaraj S/o. Dyavanna Varkoor, (2) Dharmanna S/o. Halleppa Natikar, (3) Mahadevappa S/o. Dodda Dyavanna (4) Girilingappa S/o. Dodda Sabanna (5) Raghavendra S/o. Gopal Bandalli (6) Ramlingapa S/o. Mallappa Gadi (7) Honnappa S/o. Yankappa Bandalli (8)Hanmanth S/o. Shankarappa Gadebaloor (9) Amateppa S/o. Sabana
Kotiger and (10) Narasappa S/o. Basappa Byrappanor, all residents of Honagera, Taluk Yadgir, District Yadgir, are acquitted of the offences punishable under Sections 143, 147, 323, 324, 354, 427, 429, 504, 506 read with Section 149 of the Indian Penal Code, 1860 and under Sections 3(1)(x) and 3(1)(xi) of Scheduled CRL.A.No.3638/2012 48 Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989;
[iv] The bail bonds, if any, executed by the accused shall stand cancelled;
[v] The fine amount deposited if any by the accused be returned to them after the period of appeal and if no appeal is preferred.
Registry to transmit a copy of this judgment to the Trial Court along with its records.
Sd/-
JUDGE swk/BMV*