Karnataka High Court
The State Of Karnataka vs G.Vijayalaxmi D/O G. Ranga And Ors on 20 November, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20th DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.3630/2013
BETWEEN:
The State of Karnataka
Through CPI, Dy S.P. Raichur
Represented by Addl. State Public
Prosecutor.
...APPELLANT
(BY SHRI GURURAJ V. HASILKAR HCGP)
AND:
1. G.Vijayalaxmi D/o G.Ranga
Age: 42 years, Occ: Office Assistant
Supdt of Post Office,
R/o House No.1-1-42
Udayanagar Raichur.
2. G.V.Raju S/o G.Ranga,
Age: 45 years, Occ: Ayurvedic Doctor,
House No.1-1-42,
Udayanagar Raichur
3. Khaja hussain S/o Rajasab,
Age: 50 years, Occ: Agriculturist,
R/o Kallur, Tq: Manvi,
... RESPONDENTS
(BY SRI ISHWARAJ S. CHOWDAPUR ADVOCATE)
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This Criminal Appeal is filed under section 378 (1)
& (3) of Criminal Procedure Code, praying to set aside
the impugned judgment of acquittal dated:06-08-2013
passed by the Addl. Dist. & Sessions Judge Raichur
dated: in SPL.A.C No.28/2011 and further be pleased to
convict and sentence the respondents/accused for the
offences punishable under sections 323, 353, 355, 504
& 506 R/w Sec.34 IPC & U/Sec.3(1) (x) of SC/ST (PA)
Act, in the interest of justice and equity.
This Criminal Appeal coming on final hearing, this
day, the court delivered the following;
JUDGMENT
This appeal is filed by the State challenging the Judgment of acquittal passed by the learned Addl. District & Sessions Judge, Raichur in Spl.A.Case No.28/2011 dated: 06-08-2013 acquitting the accused for the offences punishable under Sections 323, 353, 355, 504 & 506 R/w Sec.34 of Indian Penal Code and also for the offence under section 3(1) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989 ((for short hereinafter referred to as "SC and ST (PA) Act, 1989").
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2. The brief case of the prosecution is that, PW.1/Gadeppa complainant and accused No.1 G.Vijayalaxmi were working in postal department. It is case of the prosecution that, on 19-02-2011 at about 10.45 a.m., accused Nos.1 to 3 in furtherance of their common intention to commit the offence entered into the Golthana post office situated in the first floor of Municipal complex at Harihar road, Raichur. It is further case of the prosecution that, these accused obstructed PW.1 a public servant from execution of his duty and started quarreling with him in respect of the PW.1 telephoning accused No.1, abused him in filthy language touching his caste, assaulted him with chappal, hands and also threatened to take away his life. Then so many persons gathered there and pacified the quarrel.
Thereafter-words PW.1 Gadeppa lodged complaint /Ex.P.1 with Sadar Bazar police station in this regard. On the strength of the same, a case in Crime 4 No.29/2011 came to be registered for the offences punishable under sections 323, 353, 355, 504, 506 R/w Sec.34 of Indian Penal Code and under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
3. PW.9 T. Shreedhara-Dy.S.P. is the Investigating Officer. On 19-02-2011 he received FIR and on the same day he went to the spot and conducted spot panchnama as per Ex.P.3 and drawn rough sketch of scene of occurrence as per Ex.P.11. He arrested the accused on the same day and recovered one chappal from accused No.1 under seizure panchnama as per Ex.P.4. He recorded the statements of complainant and witnesses PW.3, PW.4 & PW.6. After completing the investigation he filed the charge sheet against the accused for the offences punishable under Sections 323, 353, 355, 504 and 506 R/w Sec.34 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled 5 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. The Special Court took cognizance of offences. After furnishing the prosecution papers, charge was framed against the accused for the offences punishable under Sections 353, 355 and 506 R/w Sec.34 of Indian Penal Code and under Section 3(1)
(x) of the SC and ST (PA) Act, 1989 only. The accused pleaded not guilty. Thereafter the case was posted for prosecution evidence. The prosecution in all examined 09 witnesses as PWs.1 to 09 and got marked 11 documents as per Exs.P.1 to Ex.P.11 and M.O.1.
05. After recording evidence, statement of accused as required under Section 313 of Code of Criminal Procedure was recorded. The accused have denied the incriminating evidence appearing against them. They have not chosen to lead defense evidence. However Ex.D.1 is got marked.
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06. After hearing both sides, learned I Addl. Sessions Judge, Raichur acquitted the accused for the offences punishable under sections 353, 355 & 506 R/w Sec.34 of Indian Penal Code and under Section 3(1) (x) of the SC and ST (PA) Act, 1989.
7. Aggrieved by the said acquittal, the appellant/State has preferred this appeal on the following grounds:-
That the trial court has not properly appreciated the evidence of PW.1 who himself is the complainant as well as injured. He has stated about accused No.1 entering his office caught hold his collar and scolded by taking his caste. Accused Nos.2 & 3 twisted the hands of PW.1 and pulled him from the chair and accused No.1 assaulted him with chappal. PW.3 is an independent witness. But the Sessions Court called him as chance witness. Even in the evidence of PW.2 who is pancha for seizure panchnama /Ex.P.4 has supported 7 the prosecution case. The trial court has erroneously acquitted the accused on the ground that, independent witnesses were not examined by the prosecution when it is stated that, more than 30 to 40% public gathered there. The Investigating Officer recorded statement of the independent witnesses PW.3 & PW.4. So, this observation of the trial court is not tenable. The suggestion made to PW.1 regarding enmity between himself and accused is totally denied by PW.1, but the trial court considering that as enmity has wrongly acquitted the accused. With these grounds the appellant/state prayed to set aside the Judgment of the acquittal and convict the accused.
08. The accused/respondents appeared through counsel.
09. Heard Sri.Gururaj V.Hasilkar, the learned High Court Government Pleader for the appellant/State 8 and Sri.Ishwaraj S.Chowdapur learned counsel for accused/respondents.
10. The learned High Court Government Pleader for the appellant/State argued that, the prosecution by examined the complainant/PW.1 who supported the prosecution case. PW.2 Nagappa is a panch witness to Ex.P.4 seizure panchnama and PW.4 Rajarathanam an independent witness both have supported the prosecution case. The learned Addl. Sessions Judge, Raichur is wrong in holding that, there is previous enmity between the accused and complainant. With these contentions the learned High Court Government Pleader prays to convict the accused by setting aside acquittal.
11. As against this, the learned counsel for accused/respondents argued that, the trial court has considered the evidence meticulously and arrived at just and proper conclusion based on the sound principles 9 regarding appreciation of evidence in criminal cases and held that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The said finding cannot be interfered unless the material evidence is discarded. With these contentions he prayed to dismiss the appeal.
12. I have perused the Judgment, records of the trial court and appeal Memo.
13. From the above materials, evidence and arguments the points that would arise for my consideration are as under:-
01. "Whether the learned Sessions Judge has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in criminal?
02. Whether the Judgment passed by the learned Sessions Judge in Spl.A.Case 10 No.28/2011 is illegal, perverse and needs interference by this court?
14. My answer to the above points are as under
for the reasons given below.
15. When appeal arises from a judgment of acquittal, what should be approach of appellate court is stated in a decision of the Hon'ble Supreme Court in the case of Satish Kumar and another vs. State of Himachal Pradesh and another reported in AIR 2020 SC 1766 wherein at para 24 held that -
24. The trial court has recorded an order of acquittal. Such order of acquittal could be interfered with only if there was perversity in the findings recorded by the trial court. Mere fact that the High Court has a different opinion will not be sufficient to enable the High Court to set aside the order of acquittal. The High Court in appeal took a different view than what was taken by the trial court to set aside the judgment and convict the appellants herein. While exercising the jurisdiction under Section 389 of the Code of Criminal Procedure, 1973, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person. The High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was 11 taken by the learned trial court. This Court in Chandrappa and Others v. State of Karnataka considered the scope of powers of the appellate court against an order of acquittal passed by the trial court under the Code and held as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds" "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of"
flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal 12 jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. Therefore in the light of the principles stated in the above decision let me consider the evidence on record.
17. The charge in this case is for the offences punishable under sections 353, 355 & 506 R/w Sec.34 of Indian Penal Code and under section 3(1) (x) of Scheduled Castes and Scheduled Tribes Act (Prevention of Atrocity's) Act 1989.
18. The undisputed contentions are that, PW.1 and accused No.1 both were working in postal department. It is also undisputed that, there are two unions in the said office. The complainant /PW.1 is a 13 member of National Association of Postal Employees and accused No.1 is member of All India Postal Employees Association. PW.1 admitted in his cross- examination that this accused No.1 had lodged complaint against him to higher authorities alleging misbehavior by PW.1 towards accused No.1 which is at Ex.D.1. The said complaint is lodged in the month of January 2011 i.e., much prior to this complainant lodging present complaint against accused No.1 in this case. It is also undisputed that, police registered case against these accused in crime No.29/2011 as per the complaint given by PW.1 Gaddeppa. It is also undisputed that, accused No.1 also gave complaint on the same day which is also registered in crime No.30/2011. It is also evident from the records that in both the cases police have filed charge sheet. So in the light of these undisputed contentions, let me consider whether the Judgment of acquittal passed by the trial court is based on sound principles regarding 14 appreciation of evidence or whether it has resulted in any illegality or it is a perverse finding.
19. Ex.P.1 is the complaint lodged by PW.1/ complainant No.1 before Sadar Bazar police station, Raichur. On perusing the said complaint it is evident that, the complainant has not at all stated that, accused have abused him or intentionally insulted him in a public view by taking his caste with an intention to humiliate him. PW.1 has simply stated that, he was working in his office on 19-02-2011 at 10.45 a.m., accused No.1 along with her brother and one Khaja suddenly came and caught hold his shirt and two gundas twisted his hand and threatened to take away his life. No where in Ex.P.1 PW.1/complainant stated that, accused have abused him by taking his caste in a public view. He has mentioned that, the accused No.1 assaulted him with chappal. He has not mentioned on which part of the body accused No.1 assaulted him. He 15 has mentioned that, one Rajrathanam was present there. But he has stated in his evidence that none of the person came to rescue the complainant. Of course the police have subsequently recorded statement that accused have abused the complainant by taking his caste and intentionally insulted in the public view. It is true that, FIR is not encyclopedia, each and every minor details need not be mentioned in it, but when a case is registered for the offence under section 3(1) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocity's ) Act 1989 on the basis of the said complaint and evidence before the court is doubtful, particularly in view of rivalry between accused No.1 and PW.1 the contents of FIR assumes importance.
20. PW.1 in his examination in chief has stated that, accused No.1 entered his office, caught hold his collar and scolded him as "Holeyara Sule Magane, Kalla Sule Magane, Dasara Sule Magane" . These words were 16 not at all mentioned in his complaint, nor it is stated by the other witnesses who were stated to have been present at the time of incident.
21. According to PW.1 one Mr. Rajaratanam /PW.4 was present. He has stated totally different abusive words when compared to Ex.P.1 and to the evidence of PW.1. The said PW.4 Rajaratanam has stated that, accused No.1 assaulted PW.1 by taking his caste as "Madiga Sule Magane". So that itself creates a doubt as to whether these accused have any intention to insult PW.1 by taking his caste. Moreover to prove the caste of PW.1 the prosecution has produced one document which marked at Ex.P.8 is letter from Tahasildar Raichur to Deputy Superintendent of Police Raichur wherein Caste Particulars of complainant and accused were mentioned. The authority who issued that certificate is not examined before the court. PW.1 in his examination in chief has stated that, his caste is 17 "Channadasaru" which comes under Scheduled Caste. No documents were produced by the prosecution in this regard. On perusing Ex.P.8 it is evident that, it is a letter addressed by the Tahasildar to the Deputy Superintendent of Police Raichur. It is not caste certificate either of the accused or of the complainant. It is also pertinent to note that, said Tahasildar mentioned in his letter, reference to the letter of Revenue Inspector and based on his report he states caste of accused and complainant as under:
1) Sri.Gadeppa S/o Gundappa Caste Holaya Dasaru R/o Raichur.
2) Khaja Hussain S/o Rajasab, Caste : Muslim R/o Tellur Taluka Manvi
3) Kum.Vijaylaxmi D/o G. Ranga Caste: Brahamin R/o H.No.1-1-42 Udayanagar Raichur.
4) E.V.Raju S/o G. Ranga Caste : Brahamin R/o H.No.1-1-42 Udayanagar Raichur.
22. So based on report of Revenue Inspector and panchnama, Tahasildar has issued this letter/Ex.P.8. 18 But the said letter or report of Revenue Inspector is not forthcoming. On perusing panchnama, it is evident that, that panchnama was only in respect of enquiry regarding caste of these accused. In all five points he has mentioned in Ex.P.8 about the caste of Vijayalaxmi /accused No.1. There is no mention as to whether the Revenue Inspector on whose report the Tahasildar has issued the letter has enquried anything about the caste of accused. So said panchnama is also not helpful to the prosecution case. Moreover the author of Ex.P.8 is also not examined.
23. PW.1 in his cross examination never stated that accused have twisted his hand. He has simply stated that accused were holding his hands but whether they assaulted or not nothing is stated. On the other hand, he has stated that accused No.3 abused him stating that he will bring 10 lorries of gundas to kill 19 him. It is most exaggerated version. No one will bring 10 lorries of persons to take revenge against one person.
24. In his cross examination it is admitted that in postal department they are having two unions in Richur, himself is the member of National Association of postal employees and accused No.1 belongs to different union i.e. he is the member of All India Postal employees union. There was no cordial relations between the two unions. He has also admitted that Ex.D.1 complaint was filed by accused No.1. On perusing the said Ex.D1 complaint it is evident that this accused No.1 has made complaint to the Post Master General alleging misbehavior by this complainant- Gaddeppa SPM Golthana TSO Raichur. She has also mentioned that the said person used to threatened her, abused her, he uses double meaning words against her and also threatened her of dire consequences. She has also mentioned that the said accused scolded her over 20 phone and harassed. She has requested to take action and make healthy atmosphere in the working place for the ladies. Thereafter this complaint came to be filed. He has also admitted about the complaint given by this accused No.1 to the police and it is registered as CC No.914/2011 and was pending before JMFC, Raichur. It is also admitted that CW.4-Rajaratnam is working as daily wager in his office. He has also admitted that before assaulting him the accused asked him as to why he scolded her over phone. So it is not that accused suddenly came and abused him. He stated that incident took place nearly one hour. Then what type of incident was taking place for nearly one hour is not forthcoming thereby creates doubt about the very theory of assault stated by him.
25. PW.3-K.A.Harishchandra Reddy Retd. Postal employee has given different version about incident and stated different words abused by accused No.1. He 21 gives new version stating that accused Nos.2 and 3 assaulted the complainant. But complainant himself never stated that these accused Nos.2 & 3 have assaulted him. He states that accused No.1 removed her chappal and assaulted complainant with chappal on his face and head, which is not stated by PW.1 himself. Therefore, his presence at the time of incident itself is doubtful. He states himself and one Rajaratnam pacified the quarrel. Again it is contrary to the evidence of PW.1. In cross-examination he has admitted that no one tried to pacify the quarrel. It is also very pertinent to note that the trial Court has held that he is resident of Nijalingappa colony and his house is situated about 3 kilometer away from Golthana post office. PW.3 states that he went to purchase postal cover and post card. He admits that there is post office in his area. Then why he came all along 3 km away from his place to this post office is not forthcoming. Therefore, the trial Court has rightly considered his evidence and came to right 22 conclusion that he is a chance witness and planted witness.
26. PW.4-Rajaratnam who is admittedly a daily wage employee. He gives different version about incident stating that accused No.1 came to the post office and started arguing with PW.1 stating that why he is calling her and scolding her through phone and totally gives new version about assault. This shows that there was dispute between the accused No.1 and the complainant. He has also stated that no one tried to intervene in the quarrel. This witness being a daily wager and he is subordinate to PW.1 and he has admitted that he was appointed by PW.1. Therefore, naturally this witness supports the case of prosecution because complainant has appointed him. Therefore, he is interested witness. It would be unsafe to believe the version of this witness without corroboration.
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27. PW.5-Dr.Sharanabasavaraj Medical Officer has deposed that on 08.03.2011 one police constable brought PW.1 to the hospital with the history of assault on 19.02.2011 and he examined this complainant and has given wound certificate. In his cross examination he has stated that there was no internal injuries and no external injuries. Therefore, if at all the accused have twisted his hand and assaulted on his face, head with chappal definitely there could have been some mark or pain but the medical evidence makes theory of assault doubtful.
28. PW.6-Manik Raj is the police constable who carried the FIR to the Court. PW.8-Y.Abuzar Gaffury is the Junior Engineer who has prepared the sketch map of the spot of offence as per Ex.P10. He has stated that the scene of offence room is measuring only 12 x 15 feet. Therefore, the say of PWs.1, 3 and 4 that about 30-40 persons gathered in the room is highly impossible 24 to believe 30-40 persons cannot gather in such a small room at the time of incident.
29. PW.9-T.Shreedhara is the Investigating Officer of this case. He has admitted in his evidence that accused has lodged complaint against this PW.1 and charge sheet is also filed against PW.1. He has also admitted that he has not collected any records to show that this PW.1 was working on that day and accused entered to his office. There was no attendance records collected by him. He has also stated that he has not verified as to whether they are permanent employee or temporary employees. He has also stated that he has not verified whether accused No.1 has given any complaint against PW.1 to his higher authorities. It appears a very casual investigation is done by him without verifying the background of the case. Therefore, the charge leveled against accused lacks evidence to hold proof beyond all reasonable doubt. 25
30. The learned trial Judge from para-29 of his judgment considered the evidence of each witnesses with reference to the particular charge framed against accused and has discussed. There is also discussion about the evidence. of eye witness with reference to the Investigating Officer. The Sessions Judge has also discussed what are the material discrepancies and whether discrepancies goes to the root of the case. The learned Sessions Judge has also held that there is no corroboration between the evidence of PW.1 and witnesses who are interested witnesses. The learned Sessions Judge has also in detail evaluated the evidence held that, eye witnesses are not reliable. There are major contradictions and these contradictions cannot be ignored. The main thing is to be seen is whether those inconsistency etc., go to the root of the matter or pertain to insignificant aspects thereof. He has referred contents of Ex.D1 wherein there is mention about different dates i.e. on 21.01.2011 PW.1 called the 26 accused and when she went to the accused, accused threatened her and again on 24.01.2011 and 25.01.2011 complainant threatened accused No.1 over phone. In this regard accused No.1 lodged complaint to the Post Master General as per Ex.D.1. The trial court has also considered as to whether there is offence under Section 353, 355 of Indian Penal Code and any of the ingredients are made out to prove the case. The trial court has rightly appreciated the evidence of prosecution witnesses and came to right conclusion not to rely on them as one is chance witness and other is interested witness and he has also considered in what way the said witness is interested one. The reasons assigned by the learned Sessions Judge for giving this finding are based on settled principles of law and appreciation of evidence in the criminal cases and has given a cogent and convincing reason as to how the prosecution has failed to prove the guilt of the accused. Admittedly there is ill will between this accused No.1 27 and complainant. This ill will is like a double edged weapon. It cuts either way but it is settled principles of law that the prosecution has to prove its case beyond all reasonable doubt as alleged. It is evident that there is no corroboration to the charge and also to the evidence of each witnesses and documentary evidence. On the other hand the contradictions and inconsistencies about material particulars go to the root of the case. Therefore, on account of paucity of material evidence, trial court came to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt and absolutely there are no good grounds to interfere with the well reasoned impugned order of the trial Court. Therefore the appeal being devoid of merit is liable to be dismissed. Hence, I proceed to pass the following:
ORDER The appeal filed under Section 378(1) & (3) of Code of Criminal Procedure is hereby dismissed. 28
The judgment and order of acquittal passed by the learned I-Addl. Sessions Judge, Raichur, in Spl.A.C.No.28/2011 dated 06.08.2013 is hereby confirmed.
Send back the trial Court records, if any to the concerned Court forthwith.
Sd/-
JUDGE MNS/sdu