Karnataka High Court
Shivamallegowda vs State Of Karnataka on 10 June, 2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF 3UNE 2010, BEFORE I' 4' THE HON'B1.E MRJUSTICE A.s.PAcHIjAPvti,IRé" 3' CRIMINAL. APPEAL NO,v23s/200-7--..'j:j~., » BETWEEN: SHIVAMAL.L.EGOWDA,7 AGED ABOUT 52 YEARS-,_ S/O THAMMANNA, _ R/O B.V.HALLI V.T._Li_AG,E',"' -. CHANNAPATNA'IT_A'L--U1<,} --« A ' BANGALORE (R) D'IS*TRI_CfI, ~ _ . " j APPELLANT (By Sri M_;'KIjés§)na'd"a'S Sr.i:'I.K.S.VA...Réddy, Advs.,) AND: STATE Or-:',;§<,ARNATAv:<A _ vI'BY'C'AI<,I<:;UR P}:3LICE[* * BY_ ST "TE .P_UBLI«<; 'PROSECUTOR 'HICSH COL;RT_EsUIL=I)IN__GS, A": BA_NGA_LORE. " . . I " . RESPONDENT
I(By_SrEA.V.Ramakrishna, HCGP) _iTHISj{Z,RL.A FILED U/S 374(2) CR.P.C AGAISNT THE *;IUD<;EvI~:IVEN')r..,_DATED 12--O1-2007 PASSED BY THE II ADDL.
"&"~.,_SP_L'.';" 3UDC;E, BANGALORE RURAL DISTRICT, BA'NGA_L.OR';_E," IN SPL CASE NO.87/2000 CONVICTING THE APPEL.._LAN.T~'/ ACCUSED FOR THE Of-'FENCES P/U/SS 342, 323 ..AND 355 OF IPC AND U/S 3(1) (xi) OF SC AND ST .,(,POA)-..--A'CT 1989 AND SENTENCING HIM TO UNDERGO S.I. FOR A PERIOD OF SIX MONTHS AND TO PAY FINE OF <,8RS,..;Iooo/~ AND I.D., OF PAYMENT OF FINE TO UNDERGO gEURTHER S.I. FOR 2 MONTHS FOR THE OFFENCE P/U/S 3(2) __7(xi) OF SC AND ST (POA) ACT, 1989 AND FURTHER ' SENTENCING HIM TO UNDERGO S.I FOR A PERIOD OF 3 MONTHS EACH AND TO PAY A FINE OF RS.5GO/- FOR EACH OF THE OFFENCES, AND I.D., OF PAYMENT OF FINE TO UNDERGO FURTHER S.I. FOR ONE MONTH EACH FOR THE OFFENCES P/U/Ss 342 AND 323 OF IPC AND FURTHER SENTENCING HIM TO UNDERGO 1.1. FOR A PERIOD OF 33 MONTHS AND TO PAY A FINE OF RS.1000/-- AND 1.33., OF PAYMENT OF FENE TO UNOEROO 5.1. FOR ONE Moixmer ROR THE OFFENCE P/U/S 355 OF IPC. ALL THE SUM3STAN:T_I\z'..E SENTENCES OF IMPRISIONMENT sH.ALi; --« Ri:,.lN@ CONCURRENTLY. " E. ' THIS CRIMINAL APPEAL CGlVi'Il'~.'--C5 ON OR.4.aERs""
THIS DAY, THE COURT MADE THE iEoL1,AO\m.lOTO'»:AA' ' ~ 30 ii) Nib The appellant has cha~i-!eri--gedL' his "c--o.nvVi..dtion and sentence for the under Sections 342, 323 avndi'v.357:_""o'f'::iPC'«.anxciV'-Steéltliora 3(i)(xi) of Scheduled"""CZaAste,/Scligd~3uIe-Cl:I_Tr_ib'e (Prevention of Atrocities'):lA"Ac_..t,_AV 011.089'*{.here.iVnVafter referred to as 'the Act'), 'On "a_trialAh'eid'~-byethe Special Judge, Bangalore rural;
facts relevant for the purpose of this "a ppeal 'are under;
.. i5.W..V7s--Siddaiah is a member of Scheduled Caste 0' A:cornmVunity and was engaged by the accused to work in house for a year on annual wage of Rs.7,000/---. He 'Hworked for about a month and thereafter did not continue the work and on 30.1.2000 in the morning a4 when the compiainant-PW.7 was on the way to the shop, the accused came to the piace on a scooter and seeing the compiainant forcibiy dragged him in't'o the house and tied him to a poie by using accused beat him for not attending V' hearing his confinement, his ~_{iiiiA°'e?_'i'»iw.'9_ house of the accused and reiéjueisted to';,re!i'e\re"'heiv.g husband. The accused ais"o{:t'iireaten.ed'*§5'W.V§_and heid her tuft and assauitec:.._herrwit:h{f§;d'twears'.V"PW.9 untied her husband and the house.
Later, Pw.7:-- 'wef.'~.t to the:?'Poii'eei_"--st.a,tion and submitted his iclornpiaintgf..iwhiiichucarne to be registered and thereafter ithveVV'corVnpiaiiiinaént was sent to the Hospital for the; ourposeV"of.Vtr_eatment. The investigation was taken t :Vov_Vei'_,jb§i%PVW.jt2--K.T.Baial<rishna, Dy.S.P, spot mahazar Ex'.P.2. In the presence of PWs.2 and 3'."th.e"*~VrVo'p'e was seized under E><.P.3 in the presence of V "i?*Ws.?i¥"and 5, the injury certificate Ex.P.S was coiiected '7-Zfrorn the Doctor PW.6. The statement of the witnesses "were recorded and on compietion of the investigation, the charge sheet came to be fiied against the accused for the offences punishable under Sections 3(i)(x) and 3(i)(xi) of the Act and Sections 343, 323, 355 of IPC.
3. During the trial, prosecution 1 to 12 and in their evidence got marked and 940.1. The statement of theacicu under Section 313 of Cr.P.VC.
of total denial and has notévid'e'r1ce. 3
4. The trial C'o'u_rt hearing and on appreciation .i;5.:ixnV""1r_'ecord convicted the 'offences punishable under Sections,_3i(i)v(V>Vi)_."aV.nd.i3~(i)(xi) of the Act and Sections 34;§,il323 andi--..V3L3Slof IPC, ordering imprisonment and .3 jaiso _vto..%pa'y«.__fine. Aggrieved by the conviction and ~.s'e.ntenc'ev»,--__t'h§i's"appeal has been preferred. Zfappjeilant and the learned High Court Government "Pieader.
I have heard the learned counsel for the AL
6. The point that arise for my consideration is "Whether the judgment and order convicting the appellant for the offences punishabfe_:flur;.oer Sections3(i)(x) and 3(i)(xi) of Sections 34.2, 323 and 355 or%M?rr>csiVi;m¢t%iznie' sentence thereon is il/ega-5 'a'n--d
7. It is the contention the appeiiant that the j"on*-irecord insufficient to bring rhome«..th'e.'Vc§;iL1'iVI't..of the"'acc}used. It is aiso the contenétion' sfithe interested version of arid witnesses have supoVo'rt'edi*the thettriiai Court shouid not have reiiedon4-theeVi»dVe_hc--ef"oAi«such interested witnesses. It is _aE_so _sub.r'nis'sio'h that the evidence of PW.7 is to theeontents of the czompiaint and therefore the appeilant is entitied to an order of 'a coho ittai Vighas supported the judgment and the order of the triai Court.
8. Per contra, the ieamed Government Pieader I54 on 31.1.2000 at 8.00 PM and on examination he found defused sweiling and tenderness over the scapuia region and defused tenderness and sweiiing over the ieft side of the neck and the injuries suffered b_y__'PW.7 are simpie in nature. As couid be seen history of assauit, the Doctor has recordedthat.tit'-Twa..si--.. a case of assauit by Shivamal»Ieg_owdawa'r;:§/iiutéta 30.1.2000 at 9.30 AM. In mihsaciag.o.;...i Ii§5f'i'tihie injuries suffered by PW.7;ff.h'i's.__evid'en_t:e ":taE<en~.f' into consideration.
'Itis'j're'I'eyaitn:t'i'*to 'note that in the compiaint, which is*add_re»ssed'. tot-hie Dy.S.P., it is stated by PW.7 that the accnus-edV_insisted PW.7 to work in the house for f la»yeaf:Ar'A.asy:bo'_nded labour for an amount of Rs.7,000/-- as*'éh"e._d'i;.dfnot agree on the date of the incident, the ae"cus'e:d "took PW.7 to his house and tied him to a pole "and duestioned him as to why he did not do the work abused him by referring his caste and then when "the wife of the compiainant came, the accused threatened her and assauited her with footwears and $4, gave a threat of danger to their life. The perusal of the compiaint further reveais that the receipt _,rega;rd_ing the treatment from the Doctor is aiso an_n}e>te'd.',j't.of compiaint. But at the same time, if_.'t'h'e---.:evi'd'ence_.ofd PW.7 is perused, he states ini'-._the"eeyEd'ence't'h'at~..a"i:i;er the incident, he went7t'e.._V the-..i5o|ice'V:"'sta.t_;on_.i3 submitted his complaint that after the registration of tiie" taken to the Doctor for theV.purposev:..ojf ':'Nowhere in the evidence.§?\}?iJ4,"},ei:_:ist.ate"dthiaét abused him by referri_n_gfi staites that the accused abused --.h'isw.Viiyir~E.fe.:i::ineuiifiittry'ienguage and that they are fact is not stated by the cottj1pEa~inant.'i'n.,his _r:ompiaint. Perusal of the evidence a P\/,tl.'Ai?-.rie*.rea!s that there is materiai inconsistency ort¥.iii'_s»s5o}-i"'t>f facts stated in the compiaint at Ex.P.6. Fui'the:rn1"o.ire, in the chief~e><amination, he does not say "approVaching the Dy.S.P., on the refusal of Poiice to 3't--Vr1ie'c_jister the complaint, but anyhow it is eiicited in the "icross~examinatEon that he had gone to the Dy.S.P. when the Poiice refused to receive the compiaint.
13. Furthermore, it is relevant to note that the complainant is the President of Jeetha Vimuktha Sangha and even on the date of the occurrencefhey was the President of the said association. He the cross examination that the accused is th__e?'ie.a'd.Ae'r lthel' village and whenever any quarrel viiia.g'eV,»._pe'opVi'e used to go to him for a s»ol_ution'.-ml'-So, iyfytyhils' aspect is. taken into consideration'}<,:VV:t'i1e alliewgatihonzfiethqat the accused insisted 'bonded work particularly when the A_cornpla.-i«n'an.tEhimself is the President of t'he:fSarigha,--v."é¥3'Déé'~r's»..t_oTfbe improbable and unnatural. of the evidence reveals that heagrevedl' the accused on payment of amount of VR's--..c:7vv,_OOei'J/~ per year and he worked for a it jeinoerathil«an4d"~«.t_hereafter discontinued. This fact which by him in the evidence is not stated in ecorripllaint. So, the perusal of the contents of the ' ''c=o.rnpVlaint and the evidence of PW.7 at the most reveal the complainant had agreed to work for a period of "one year but worked for a month and discontinued and 10 it is under these circumstances, the accused could have brought the complainant to his house.
14. So far as the offence under and 3(i)(xi) of the Act is concerned, PW.7, there is no material On:,i'eC:(),,l' Cl:. accused uttered words sosas to cause any"V--Veitnsu'|t touthefi complainant referring to histvicalste. B'u.t,"sVo far as PW.9 his wife is COnCeFFi'é',_ti",«. Pii\i.Ztvstat.ed«.%that accused abused his wife in f,i,_lth\,/._ i.a_ng:uzige"'~a;n_d that they are eating the i""les}:h.t'of.cattle";an'd.::d-oes...tnot say initially as regards--.tl1eVa::s-aiuit'orfhis wife. As stated above, so far as "the_ai3usirve_ivords are concerned, there is notihiyng in trueflconjiplaint filed by PW.7 and material im_prov'em,en.t_s have been made in his evidence. '~.F'u-rthVer'n*tor'e',"Vas could be seen from the evidence of states that after hearing that 'the accused "to.gi< 'her husband to his house, she went there and 'AA'--reqtuested the accused to relieve her husband and that "the accused threatened her that they will do the same thing to her also and that the accused held her hair 11 and assaulted with footwears. So far as the assauit by the accused on the wife of the compiaiha<nt"--Vv'is concerned, there is no consistency in the":eviyd'e7f1'cei'Vofi-, PW.7 and PW.9. While PW.7 5-t»a.tes that"'th,eV"ac'¢usieVd"s abused his wife in filthy la"nygu'afge, anything as regards the 'es's'a..uit byVfo.oty§zea':rjs*'--whereas.L' PW.9 states that she' wasVAasVsfa.ul'i:e_.d accused by footwears. Furtherrrio're,'é*.sifi}ili;s'd"'»32'asV:not taken to the Doctor. She has__ and in such circumstanef-1,. version of PW.9, that the accused used force?.or--. on PW.9 the wife of PW.7.
In such'c_ircuni's_t.arric»'e;"'»T£ do not think that there is any e\r4i§den'ce worthy of acceptance to prove the offence .h :Vu--n_Vde_r: s.e1ctron 3(i)(xé) of the Act. .,.iS..v"So.yfar as the assault of PW.7 is concerned, he w--e_ntV_t~o Doctor for the purpose of treatment. He yywasttextamined, he stated the name of accused and the mentioned in the injury certificate reveals the Héname of accused. He has suffered simpie injuries. In
12. the circumstances, the evidence of PW.7 so far___as the assault by the accused has to be accepted. _ __
16. It is not the law that there;r""s--h.iQt.:.l:U'i. :_.be corroboration by any independent witne.s.sV_'4s'o_fa.:r as injured person is concerned.1: 'Icy opinion that so far as t_he4__.offe'n_c'e Section 323 of IPC is conc'el'rn_e'd,_Vthe"evidence of PW.7V stands corroboratedgijybut of'f>iW".w9 his wife corroborates is '.i/g4llpI'.'s"df..'jconviction under Section 'iFuVrvthei:'frno.'r'e,V.:'_'perusal of the evidence of PW.7 and l5WV.'9-- rlevealivAI_lj¢'th'a't.::PW~:7 was taken to the house of theV.accused_i and v'vaVs""'tied to a pole and during the bf./iiynvelstyigation, rope-MO.-1 has been seized by "t_heVl§:ol:'ice'r»o.Q_§ficer. Merely because the attesting w.i4tness.e's;,llave not supported seizure of rope, it does not "rneian that the evidence by the Police Officer could 'Vbewtiiscarded. The evidence of PW.7 and PW.9 to prove U 'fwrongful confinement by tying PW.7 to the pole is (>4 1?
sufficient and trustworthy. Hence, his conviction for the offence under Section 342 of IPC is also just and proper. ._ S :17. So far as the offence p:.:nishat;'ie'~-."u_n'd.er Section 355 of IPC is concerned, the PW.7 to his house only agreed to work for one year is for this reason the to at pole to question as_.it'oVV:.yv-hy-»...heS tii'scontinued to work. So far as PW.'9'%_e_E's 'c.o?ic'erne%d,.,Lthere is no such criminal-.forcévigi'-s:ed._'ai§a"E*nst"Sher to dishonour PW.9 and tying th'e.__4peVrsxon.'ato»*gfppie for enquiry on the part of P\N§j in myV'o'p.EVnion':does not amount to dishonour of a .jpe_rson'«.an:d~--.__in the circumstances, the provisions of IPC are not attracted. Hence, the co"n\(icVt'io'rn"s for the offences punishabie under Section A "3{.i,,)A(>{ii) of the Act and Section 355 of zpc is iiiegal and
-- xjpierverse. BL
18. The triai Court has not taken into 'consideration the material omissions, the inconsistent evidence of Pws. 7 and 9 and also the inord'i.r:'a:teflde'ivay in iodging the compiaint and further the of criminai force by the accu-sed---.on t"h..ex' circumstances, I am of the conviction for the offenceVs'u:n~~der 342"? of IPC are concernedi the.i-j'uVd"grn'en.t ofathe ..t:ria| Court has to be upheld and other offences has to be set..a;si..de.
sentence is concerned, it is reievanti\;o* note thaitthe accused was in custody for a pe«i¥§ei'oVdi'~of triiree days and was released on bail. »:VFu_rthVermoire,,__ the incident has taken piace in the .~.c'i.<cun1st'anc_es when PW.7 agreed to work for a year with. tVh.e"'accused, discontinued to do so without any "ii*if4orrn'ation and accused being enraged by the act of dragged him to the house, tied him to the pole "and questioned him as to why he discontinued the work. It is because of these circumstances that an M» 15 incident of wrongful confinement was committed; The evidence reveais that at the request of PW.9..jthfe««..l_w--iVfe, the accused released PW.7 by untying hini. into consideration these circu__rn.st_ance's,"'"ii/.an9i'*t-he» opinion that the sentence of confined to the sentenc'e_V:v"'a..|V_rea'dyr'inu.nd'ero'o;rre...durvilngt"
investigation and in;_§1dditiVQr11uv:b':y_al{\lartl'il'I'g:,._firif§. Hence, I answer the povinttl,oa'~rtVlj;r"j.ua"ffci'i'-.n9ia..t_iVve and partly n egative a n d proceed" to .fo|.tl..o"W'i ng; V 7__Th._e-- part. The conviction of the ap';ieiiiaVnt'~ for: offences punishable under Se;§§ti'ons of IPC are confirmed. His 'co"nviv'cti.c.n'vfor the offence punishabie under Section and Section 355 of IPC are set aside and h--.e.is"'acquitted of the said charges. The sentence iierudered for the offences punishabie under Sections 323 '"'.VVa'n"d 342 of IPC are modified and the sentence of "imprisonment is confined to the period of custody during investigation directing the appellant to pay fine 94 16 of Rs.1,000/-- each for the offences punishab§eV_-;-nder Section 323 and 342 IPC, in defauft, to underg*o':'s§§§2,o'ive imprisonment for one month for each of "