Karnataka High Court
Sri Kumara vs State Of Karnataka By on 8 February, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.347/2010
BETWEEN:
1. Sri. Kumara
S/o. Late Giriyappa,
Aged about 27 years,
Occ: Agriculturist.
2. Rajappa
S/o. Late Giriyappa,
Aged about 32 years,
Occ: Agriculturist.
Both are residents of G.Bevanahalli,
Harihara Taluk, Davangere District,
Pin-577 530. ... Appellants
(By Sri Prabhuswamy N, Advocate for
Sri V.B. Siddaramaiah Advocate)
AND:
State of Karnataka by
Malebennur Police
Davangere District. ...Respondent
(By Sri. Chethan Desai, HCGP)
Crl.A.No.347/2010
2
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the judgment and order of
sentence dated:18.03.2010 passed by the Prl. District and
S.J., and Special Judge at Davanagere in Spl.C(SC/ST)
No.1/2006 - Convicting the appellants/accused for the
offence P/U/S 3(1)(X) of SC/STs (PA) Act 1989 R/w 34 of IPC
and also under section 326 R/w 34 of IPC. The
appellants/accused sentenced to undergo S.I. for a period of
six months and to pay fine of Rs.2,000/- each, in default to
undergo S.I. for a period of one month for the offence P/U/S
3(1)(X) of SC/STs (PA) Act 1989 R/w 34 of IPC. Further they
shall undergo S.I. for a period of two years and to pay fine of
Rs.2,000/- each, in default to undergo S.I. for a period of
three months for the offence P/U/S 326 R/w 34 of IPC.
This Appeal coming on for hearing this day, the Court
made the following:
JUDGMENT
The present appellants are convicted by the judgment of conviction and order on sentence dated 18.03.2010, passed by the Prl.District & Sessions Judge & Special Judge, Davanagere, in Spl.C. (SC/ST) No.1/2006, for the offences punishable under Section 326 read with Section 34 of Indian Penal Code and for the offence punishable under Section 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Crl.A.No.347/2010 3 Atrocities) Act, 1989. Being aggrieved by the judgment of conviction and order on sentence, the appellants have preferred the present appeal.
2. The respondent is being represented by High Court Government Pleader.
3. Lower court records were called for and the same are placed before the Court.
4. Heard the arguments from both sides.
Perused the memorandum of appeal, impugned judgment and the lower Court records.
5. The summary of the case of the prosecution is that on 10.12.2005, at about 8.00 a.m., on the road situated in front of Halammadevi temple, Situated at G.Bevinahalli Village, the present appellants (accused Nos.1 and 2) in furtherance of common intention to insult and assault CW-1 (PW-4) Manjunatha, knowing Crl.A.No.347/2010 4 fully well that he belongs to Valmiki community i.e., Scheduled Tribe, intentionally insulted and intimidated by abusing him and calling him as "¨ÁåqÀ¸ÀƼɪÀÄUÀ£"É (son of a bitch of Byada community) and taking the name of his caste within public view and thereby committed an offence punishable under Section 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Sections 504, 324, 326 read with Section 34 of Indian Penal Code. Charges were framed by the Court below for the said offences. Since the accused pleaded not guilty, trial was held, in which, prosecution has examined 9 witnesses from PW.1 to PW.9 and got marked documents at Exs.P-1 to P-10(b) and material objects from MO.1 to MO.3. Neither any witnesses were examined nor any documents were marked from the defence side. After hearing both sides, the Special Court by its impugned judgment of conviction and order Crl.A.No.347/2010 5 on sentence, convicted the accused/appellants for the offence punishable under Section 326 read with Section 34 of Indian Penal Code and also under Section 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, read with Section 34 of Indian Penal Code and sentenced them to undergo simple imprisonment for a period of six month and to pay a fine of Rs.2,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of one month for the offence punishable under Section 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, read with Section 34 of Indian Penla Code and to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 326 read with Section 34 of Indian Penal Code. It is against the said Crl.A.No.347/2010 6 judgment of conviction and order on sentence, the appellants have filed this appeal.
6. Learned counsel for the appellants in his arguments vehemently submitted that no reasons are forthcoming in the evidence of any of the witnesses as to why accused Nos.1 and 2 who were said to be at a separate place and sitting alone, all of a sudden and without any provocation, came and assaulted PW-4 Manjunatha. As such, the inception of the alleged crime gives rise to a suspicion. No where, PW-5 has stated about the role of accused No.1. Had really accused No.2 was accompanying accused No.1 and had really PW-5 was an eye witness to the incident, he should have necessarily spoken about the alleged involvement of accused No.2 also. Thus, the entire evidence of PW-5 is not safe to believe and act upon. Learned counsel further submitted that PW-5 has also stated that Deputy Crl.A.No.347/2010 7 Superintendent of Police has not recorded his statement. If that is the case, the prosecution has no where explained as to how come PW-5 is projected as an eye witness and was also examined by it. He further submitted that there is an enormous delay of two days in lodging the complaint which is not reasonably explained by the complainant. Further stating that even according to the case of the prosecution, the incident has taken place in a public place and in a broad daylight, but, no passer-by is shown to have rushed to the rescue of the alleged assaulted nor any of the third persons who were available in the place were examined as prosecution witnesses. Thus, the entire case of the prosecution is covered with clouds of doubts, the benefit of which is necessarily required to be extended to the accused.
Crl.A.No.347/20108
7. Learned High Court Government Pleader in his arguments vehemently submitted that none else than the victim himself has fully supported the case of the prosecution. As such, his evidence stands on a higher platform. He further submitted that evidence of PW-5, who is an eye witness, fully supports the evidence of PW-4, which, in turn, further corroborated by the medical evidence. As such, it is proved beyond reasonable doubt that the accused have committed the alleged offences. Learned HCGP further submitted that delay of two days has been properly explained by PW-4
- the complainant. As such, the alleged delay in lodging the complaint itself would not take away the case of the prosecution.
8. The fact that both the accused and PWs.4 and 5 belongs to the same place and that they were known to each other even prior to the date of alleged incident, is Crl.A.No.347/2010 9 not in dispute. It is also not disputed that the accused belong to Lingayath community, whereas, PW-4 - complainant, belongs to Valmiki community, which is a Scheduled Tribe. It is in the light of these admitted facts, the evidence of the prosecution requires to be appreciated.
Among the nine witnesses examined by the prosecution, PWs.1, 2 and 5 were shown as eye witnesses to the incident. Among these, PWs.1 and 2 have not supported the case of the prosecution. Even after treating them hostile and the prosecution being permitted to cross-examine them, still the prosecution could not get any support from them. As such, the entire case of the prosecution is solely rests upon the evidence of PW-4 who is said to be the victim in this case and PW-5 who is projected as an eye witness. Apart from these two, regarding the medical Crl.A.No.347/2010 10 aspect of the issue, it is the evidence of PW-3 Dr.Mamatha, would be of some importance. The evidence of other witnesses, particularly PW-6, who speaks about issuing a Caste Certificate, certifying the community of the complainant as `Valmiki' as per Ex.P-7 and the evidence of PWs.7 and 8, the alleged panchas to the mahazar said to have been drawn by PW-9, the Investigating Officer, gets the importance, provided the evidence of PWs.4 and 5 are proved to be reliable.
PW-4 (CW-1) - H.B.Manjunatha, the complainant, in his evidence, apart from stating that he belongs to Valmiki community and the accused belongs to Lingayath community, has stated that on the date of the incident, at about 8.00 a.m., while he was returning from the dairy after giving milk, accused No.1 tied a stone in his towel and assaulted on his left shoulder. Crl.A.No.347/2010 11 Accused No.2 assaulted him near his ear by a cycle chain. There was a quarrel between them about four months ago regarding grazing of cattle in the land of accused. At that time, he did not file the complaint against the accused since villagers had pacified the matter. He has also stated that accused abused him as "¨ÁåqÀ¸ÀƼɪÀÄUÀ£É" (son of a bitch of Byada community) and insulted him by taking his caste. It was one Karibasappa and Mahantesh who came to the place and pacified the matter. His brother took him to Malebennur hospital, but he did not take treatment there. Later he came to C.G.Hospital at Davanagere and took treatment. He also stated that he lodged a complaint after two days of the incident as he was suffering and also for the reason that he wanted to convey the incident to the village elders to set it right. The witness has identified the complaint at Ex.P-4. He has also identified the stone, Crl.A.No.347/2010 12 turkey towel and old cycle chain at MOs.1, 2 and 3 respectively. He has also spoken about the police visiting his village a week after his complaint and drawing the panchanama and mahazar. He was subjected to detailed cross-examination from the accused side, wherein he adhered to his original version.
PW-5 (CW-4) Madannara Karibasappa in his very brief examination-in-chief has stated that he had seen a fight between accused No.1 and the complainant. In that, accused No.1 was assaulting the complainant by tying a stone in a towel. It was himself, joined by Mahantesh, pacified the quarrel. He has also stated that he did not see accused No.2 in that place, but noticed that PW-4 had sustained injuries on the left side of his chest and ear. He has also stated that Deputy Superintendent of Police has not enquired him in that regard. Since he did not disclose anything about Crl.A.No.347/2010 13 the role of accused No.2 in the alleged incident and also about the Investigating Officer recording his statement, he was treated as hostile. Still the prosecution could not able to get any support by him in his cross- examination. He was also subjected to cross- examination from the accused side.
In the evidence of PWs.4 and 5, who are the only two material witnesses supported the case of the prosecution, several doubt arises, firstly, neither PW-4 - the victim, nor PW-5 - the eye witness, have stated anything about what instigated or prompted the accused to all of a sudden to approach PW-4 and assault him. Even according to PW-4, the victim, the incident has taken place in a board daylight while he was returning from dairy after supplying milk. At that time, seeing him coming, accused No.1 who was sitting near the temple, tied a stone in a towel and approached him and Crl.A.No.347/2010 14 assaulted. No where he has stated in his evidence as to whether accused No.2 came there and what made accused No.2 also to assault him. According to PW-4, four months prior to the date of the incident, a quarrel had taken place between him and accused No.1 with respect to the cattles of PW-4 entering the lands of the accused. The said dispute was pacified by the elders in the village. Even if the same is considered to be true, still there is no reason forthcoming as to why did the accused chose that particular day of incident to attack and assault PW-4. It is because, even according to PW-4, the victim, he used to supply milk to the dairy every day. As such, every day, he used to travel the same path for the same purpose. As such, had the accused determined or decided to attack and assault PW-4, they had sufficient opportunities of nearly four months prior to that. Thus, in the absence of any other evidence as to what prompted the accused to select the Crl.A.No.347/2010 15 particular day for the alleged act, it is very difficult to believe the statement of PW-4 that all of a sudden, accused No.1 got up from the place where he was sitting and thereafter tying a stone in a towel, he approached him and started assaulting.
Secondly, the evidence of PW-4 no where mention as to before assaulting him, whether any of the accused had exchanged any verbal abuses with him or expressed the reason as to why they are assaulting him. Otherwise, with respect to an old incident of four months, all of a sudden and without any intimidation of their intention to assault or the reason for their assault, accused assaulting PW-4 all of a sudden, is very hard to believe.
Thirdly, neither PW-4 nor PW-5 in their evidence have stated as to where was accused No.2 at the time of alleged incident and what made him to come and join Crl.A.No.347/2010 16 accused No.1. As such, the say of PW-4 that accused No.1 got up from a place near the temple and approached him after getting himself prepared to assault him, does not inspire confidence to believe. At the same time, in the absence of any material to show as to from where accused No.2 appeared in the scenario and without any quarrel or exchange of words, all of a sudden assaulted PW-4, is also hard to believe.
Fourthly, the evidence of PW-5, the alleged eye witness, which is very brief, only mentions that when he saw accused No.1 and complainant were fighting with each other, that means, his first sentence is not an attack upon PW-4 by accused Nos.1 and 2 and assaulting PW-4 by the accused, but it is a fight between both accused No.1 as well the complainant. It is only thereafter, PW-5 has continued stating that accused No.1 was assaulting PW-4 by tying a stone in a towel. Crl.A.No.347/2010 17 As such, it is not the case of PW-5 that it was only the accused No.1 who assaulted PW-4, but it is his statement that there was a fight between both accused No.1 and PW-4. Therefore, the case of the prosecution that it was only accused Nos.1 and 2 who assaulted PW-4 cannot be taken as beyond any suspicion.
Fifthly, PW-5 in his evidence has specifically stated that he has not seen accused No.2 in the incident. According to the prosecution and more particularly, according to the evidence of none else than the injured himself, accused No.1 accompanied and joined by accused No.2, assaulted him. PW-4 has given the details of the assault said to have been made even by accused No.2 also. That means, both accused Nos.1 and 2 were together from the beginning of the incident till the end of it i.e., till PW-5 and PW-1 came to his rescue and pacified them. If the same has to be Crl.A.No.347/2010 18 believed, PW-5 should have necessarily seen accused No.2 also in the incident. When PW-5 has clearly stated that he has not seen accused No.2 in the place of offence, then, there is lot of contradiction and discrepancy between the evidence of PW-1 and PW-5 with respect to the manner and how the incident is said to have occurred. Therefore, it is not safe to believe the evidence of either of them.
Sixthly, according to PW-4 and also PW-5, when the incident took place, PW-1-K.G.Mahantesh and PW-5- Madannara Karibasappa, pacified the dispute. That means, when the incident took place, along with PW-5, PW-1 was also present in the scene of offence, whereas, the said PW-1 in his examination-in-chief categorically stated that he does not know anything about the incident and that he has not seen the incident. He has also stated that he has not pacified the dispute, which Crl.A.No.347/2010 19 means, when he has categorically stated that he has not seen the incident, his alleged presence along with PW-5 remains doubtful. On this count also, the say of PW-5 that PW-1 was also with him when he pacified the dispute becomes doubtful to believe.
Seventhly, according to PW-4, the injured, accused No.2 assaulted him near his ear by using a cycle chain. Had really the accused No.2 assaulted PW-4 by using a cycle chain on the ear of PW-4, there required to be some mark or injury near the ear of the injured. However, the medical evidence of PW-3, the doctor and the injury certificate issued by her at Ex.P-3, no where mentions about the presence of any injury near the ear. This also gives rise to a suspicion.
Eighthly, if according to PW-1, accused No.2 had assaulted him on his ear by using a cycle chain, PW-5, who is said to be an eye witness, should have Crl.A.No.347/2010 20 necessarily seen the said act of accused No.2 assaulting PW-4, whereas, as already observed, PW-5 has categorically stated that he did not see accused No.2 in the incident. However, he has stated that he saw the injury on the left side of the chest and on the ear of the injured. If according to PW-4, it was only accused No.2 who assaulted him on his ear and also if PW-5 has seen the injury on the ear of PW-4, then, PW-5 should have necessarily stated about the presence and participation of accused No.2 in the incident. At the same time, PW-3, the doctor also should have noticed the injury on the injured. Since neither PW-5 has stated about the presence of accused No.2 nor PW-3 has noticed any injury on the ear of PW-4, the alleged evidence of PW-5 that he was an eye witness to the incident and the evidence of PW-4 also that accused assaulted him, among whom, accused No.2 assaulted on his ear, becomes doubtful to believe.
Crl.A.No.347/201021
Ninthly, according to PW-5, PW-4 had sustained injury on the left chest. Had really PW-4 had sustained injury on the ear, in the medical evidence, as well medical certificate Ex.P.3, it could not have escaped the medical examination said to have been conducted by PW-3. Thus, the evidence of PW-5 furthermore becomes very unsafe to rely upon.
Lastly, PW-5 has clearly and categorically stated that Deputy Superintendent of Police-the Investigating Officer, has not recorded his statement. Even in cross- examination by the prosecution, he has not admitted that Investigating Officer has recorded his statement. Therefore, if the evidence of PW-5 were to be believed, it must also be believed that he was not enquired by the Investigating Officer. This aspect also makes the evidence of PW-5 unsafe to believe. Crl.A.No.347/2010 22
The next aspect of doubt that has crept in the case of the prosecution is about the spot of the alleged offence. According to the case of the prosecution, the place of offence was near Halammadevi temple on a public road. The incident has taken place at 8.00 a.m. in the morning. According to PW-4, who has stated in his cross-examination clearly that good number of people make use of that road at that time and many people like him supply milk to the dairy at that time. As such, the said incident could have been witnessed by sizable number of people. However, except PWs.1 and 5, no others were shown as eye witnesses to the incident and it is not even the case of the prosecution that the people who were walking on the road either have witnessed the incident or tried to pacify the incident. As such also, doubt creeps in about the Crl.A.No.347/2010 23 occurrence of the incident in its entirety as depicted by the prosecution.
Lastly, the delay in lodging the complaint in the case also cannot be ignored. Admittedly, there is two days delay in lodging the complaint by the complainant. No doubt, the complainant has given the reason that he was suffering due to the injuries sustained by him in the incident and that he wanted to bring the matter to the notice of the elders in the village, as such, he took two days time to lodge the complaint, the said reasoning given by PW-4 cannot be taken on its face value. For the reason that, even according to PW-4, four months prior to the incident, there had taken place a quarrel between him and the accused. If that were to be the case, then, for once again such an action of attack upon him, PW-4 would not have waited for elders to settle the matter, but Crl.A.No.347/2010 24 would have rushed to the police station to lodge a complaint. Even otherwise, assuming that the complainant initially had reason not to approach the police immediately, still there is no evidence from the prosecution to the effect that any MLC report was received by their police station with respect to the incident. Had really the assault has taken place, then, from the treating doctor, the complainant police were expected to receive a medico legal case information or their report. In the instant case, the only Investigating Officer, examined as PW-9, no where in his evidence has stated that any medico legal case information or report was received by them. As such also, it cannot be believed that the incident has taken place in the manner as stated by the complainant/PW-4 and that he had every reason to cause two days delay in approaching the police.
Crl.A.No.347/201025
The above analysis of the evidence of PWs.4 and 5 makes it very clear that the evidence of neither PW-4 or PW-5 are worth believing. In the light of the evidence of important material witnesses, including the injured itself, is not inspiring any confidence. The reliance on medical evidence with regard to injuries suffered by the complainant and their relationship with the weapon used would play a primary role. The Special Court has failed to notice catena of doubts that has crept in the case of the prosecution. On the other hand, solely relying upon the few statements made in the evidence of PWs.4 and 5 regarding the alleged incident, the Court below had jumped to a conclusion that the incident had taken place as depicted by the prosecution. Therefore, judgment of conviction and order on sentence passed by the Court below is perverse, which has ended in an erroneous judgment, convicting the accused for the Crl.A.No.347/2010 26 offences. The said judgment of conviction and order on sentence, thus, deserves interference at the hands of this Court and the accused deserves to be acquitted of the alleged offences. Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed. The judgment of conviction and order on sentence dated 18.03.2010, passed by the Prl.District & Sessions Judge & Special Judge, Davanagere, in Spl.C. (SC/ST) No.1/2006, is set aside. The accused are acquitted of the charges leveled against them for the offences punishable under Section 326 read with Section 34 of Indian Penal Code and for the offence punishable under Section 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. The accused are set at liberty.
The bail bonds executed by accused stands cancelled. Crl.A.No.347/2010 27
The Registry is directed to send a copy of this judgment along with lower Court records to the concerned Court without any delay.
Sd/-
JUDGE bk/