Karnataka High Court
State Of Karnataka vs Kishor Vajra Naik on 17 February, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17th DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.100392/2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
HALIYAL POLICE STATION,
U.K. KARWAR,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.. APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
AND:
KISHOR VAJRA NAIK
AGE: 49 YEARS,OCC: SDA IN
MINOR IRRIGATION DEPARTMENT,
SUB-DIVISION, HALIYAL,
R/O: NEAR GOVERNMENT COLLEGE,
HAVAGI VILLAGE, HALIYAL TQ.,
DIST: KARWAR.
.. RESPONDENT
(BY SRI. R.H. ANGADI, ADV.)
Crl.A. No.100392/2017
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 04.07.2017 PASSED BY THE SPECIAL JUDGE, UTTARA
KANNADA, KARWAR, IN SPECIAL CASE NO.18 OF 2012 AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 448, 504, 323, 355, 427 AND 506
OF IPC AND UNDER SECTION 3(1)(X)(XI) OF SC AND ST
(PREVENTION OF ATROCITIES) ACT 1989.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING
THIS DAY, Dr.H.B.PRABHAKARA SASTRY J., DELIVERED
THE FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had initiated a criminal proceeding against the present respondent arraigning him as an accused for the offences punishable under Sections 448, 504, 323, 355, 427 and 506 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC') and under Section 3(1)(x) and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for brevity referred to as 'SC & ST Act') in Spl. Case No.18/2012, in the Court of the learned Special Judge, Uttara Kannada, Karwar (hereinafter for brevity referred to as 'the Special Court'). After the trial, Crl.A. No.100392/2017 3 the accused was acquitted of all the alleged offences. Seeking setting aside of the impugned judgment dated 04.07.2017, the State has preferred the present appeal under Section 378(1)&(3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.').
2. It is the case of the prosecution that on 30.07.2012 between 1:30pm to 1:45pm, when the complainant-Smt.Shivakka Sangolli-(PW.1) and her daughter-in-law Smt.Ratna Sangolli-(PW.4) were taking food in their house, the respondent/accused barged into their house and abused them in filthy language taking the name of their caste and shouted that since Narayan is proceeding to file a complaint alleging theft of a gas cylinder, he will not leave him with his life. He also abused the complainant and her daughter-in-law-Ratna taking the name of their caste and in abusive language. Apart from abusing them, the accused also assaulted the complainant and PW-4 with a chappal. He also damaged the utensils and household articles inside and dragged both the complainant and her daughter-in-law Crl.A. No.100392/2017 4 outside their house. While abusing them in filthy language, pulled saree worn by them and outraged their modesty. After registering the complaint in Station Crime No.139/2012 for the offences punishable under Sections 448, 504, 323, 355, 427 and 506 of IPC and for an offence under Section 3(1)(x) and 3(1)(xi) of SC & ST Act, the Police conducted investigation and after completing investigation, filed charge-sheet against the accused for the alleged offences.
3. Since the accused pleaded not guilty, the trial was held wherein in order to prove the alleged guilt against the accused, the prosecution got examined seventeen witnesses from PW.1 to PW.17 and got marked sixteen documents from Exs.P-1 to P.16 and material objects M.Os.1 to 4. Statement of the accused under Section 313 of Criminal Procedure Code was recorded. Neither any witnesses were examined from the accused's side nor any documents were marked as exhibits.
4. After hearing both side, the learned Special Judge by his impugned judgment dated 04.07.2017 acquitted the accused for the offences charged against him. Crl.A. No.100392/2017 5
5. The respondent/accused is being represented by his counsel.
6. The Special court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the material placed before this Court.
8. The points that arise for our consideration are:
i) Whether the prosecution has proved beyond reasonable doubt that on 30.07.2012 between 1:30 pm to 1:45 pm, the accused committed house trespass into the house of the complainant and committed an offence punishable under Section 448 of IPC?
ii) Whether the prosecution has proved beyond reasonable doubt that on the aforementioned date, time and place, the accused with an intention to provoke breach of the peace abused the complainant and PW-4 by abusing them as belonging to Holeya caste and 'dirty sons of Crl.A. No.100392/2017 6 bitch' and caused insult to them and thereby committed an offence punishable under Section 504 of IPC?
iii) Whether the prosecution has proved beyond reasonable doubt that on the aforementioned date, time and place, the accused voluntarily assaulted PW.1 and PW.4 and caused hurt to them and thereby committed an offence punishable under Section 323 of IPC?
iv) Whether the prosecution has proved beyond reasonable doubt that on the aforementioned date, time and place, the accused, in the absence of any grave and sudden provocation by PW.1 and PW.4, assaulted PW.1 and PW.4 and used criminal force against them intending thereby to dishonour PW.1 and PW.4 by assaulting both PW.1 and PW.4 and pulling their saree, tearing the blouse worn by them and thereby has Crl.A. No.100392/2017 7 committed an offence punishable under Section 355 of IPC?
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v) Whether the prosecution has proved beyond reasonable doubt that on the aforementioned date, time and place, the accused caused damage to the household articles, utensils of a value of more than `50/- and thereby has committed an offence punishable under Section 427 of IPC?
vi) Whether the prosecution has proved beyond reasonable doubt that on the aforementioned date, time and place, the accused put life threat to PW.1 and PW.4 and thereby has committed an offence punishable under Section 506 of IPC?
vii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused knowing fully well that PW.1 and PW.4 were belonging to Madara (Methri) community, which is a Crl.A. No.100392/2017 8 scheduled caste, abused them taking the name of their caste in the public place with an intention to insult them in public and thereby has committed an offence punishable under Section 3(1)(x) of SC & ST Act?
viii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused knowing fully well that PW.1 and PW.4 were belonging to Madara (Methri) community and himself belonging to Hindu Shergara caste, has assaulted PW.1 and PW.4, tore the blouse worn by them and pulled the saree worn by them, insulted them in public and thereby has committed an offence punishable under Section 3(1)(xi) of SC & ST Act?
ix) Whether the judgment under appeal deserves any interference at the hands of this Court? Crl.A. No.100392/2017 9
9. The prosecution in order to prove the case against the accused examined seventeen witnesses from PW.1 to PW.17, among whom PW.1, PW.4, PW.5 and PW.15 have spoken about the caste of the alleged victims i.e., PW.1 and PW.4. PW.1-the complainant, PW.4-alleged victim and PW.5 husband of PW.4, have stated that they belong to Methri community coming under scheduled caste. PW.15- then Tahsildar of the jurisdictional taluka, Haliyal, has stated that considering the requisition given to her by the Investigating officer in this case, she had verified the caste of the complainant, injured and the accused and has issued the caste certificate as per Exs.P.11, P.12 and P.13 respectively. She has stated that by her enquiry, she came to know that the complainant Shivakka and her daughter-in-law-Ratna belong to Madara caste falling within scheduled caste and the accused was belonging to Hindu Sherugara caste. The said evidence of PW.1, PW.4, PW.5 and PW.15 regarding the caste of the complainant, injured and the accused is not seriously disputed or denied from the accused's side. Verification of Exs.P.11 and P.12 which is also supported by Crl.A. No.100392/2017 10 the evidence of the investigating officer i.e., PW.17 go to show that PW.1 and PW.4 belong to Madara (Methri) caste coming under scheduled caste and perusal of Ex.P.13 go to show that accused belong to Hindu Sherugara caste. As such, it is established that both PW.1 and PW.4 belong to the scheduled caste and the accused does not come under either the scheduled caste or the scheduled tribe.
10. Regarding the alleged incident said to have taken place, it is PW.1, PW.4, PW.5, PW.6 and PW.7 who have given their evidence.
11. PW.1(CW.1)-Shivakka Sangolli is the complainant in this case, who in her examination-in-chief has stated that they belong to Methri community, which is a scheduled caste. PW.4(CW.6)-Ratna Sangolli is her daughter-in-law and CW.7 is her son. They have a house within the limits of Havagi village on the road leading to college. She stated that the accused is known to them whose house is at a short distance from her house and accused knows that the complainant and her family belong to the scheduled caste. The witness has Crl.A. No.100392/2017 11 further stated that with respect to a gas cylinder, a dispute had taken place between her son and the accused. Her son had given a gas cylinder for use to the accused. However, when her son sought its return, the accused refused to deliver that cylinder, on the contrary stated that, the said cylinder belongs to accused, as such, CW-7 should give money and take it back. She also stated that her son is running a motor garage in the very same building where they reside.
With respect to the incident, the witness has stated that on 30.07.2012 when herself and her daughter-in-law were alone in the house and son had gone outside and grand children had been to school, at about 1:45 pm while they were taking lunch, the accused barged into their house from the back door and addressing his son, asked as to where he has gone. The witness stated that while calling her son, he addressed him as a Holeya (scheduled caste) and son of a bitch. She also alleged that her son had filed a complaint against him. In spite of the witness and her daughter-in-law telling that CW-7 was not at home, still, the accused Crl.A. No.100392/2017 12 damaged the utensils and household articles which were inside and assaulted her daughter-in-law. Dragging her daughter-in-law and herself outside the house, he assaulted them on the side of the road. He also assaulted her daughter-in-law on her left ear with the slipper which he was wearing. Due to which, the ear stud which she was wearing was separated and it was lost. They telephoned to CW.7. The witness further stated that both herself and her daughter-in-law went to the complainant-Police Station in an autorickshaw, however, the Police before registering the complaint asked them to go to the hospital. Accordingly, they went to the hospital. However, when they returned to the Police Station, CW-7 was already there. The Police did not receive their complaint at the first instance. They received the complaint only on the next day. Stating so, the witness has identified the complaint at Ex.P-1 and her signature therein at Ex.P-1(a). She also stated that since the accused assaulted her on her back, she got hurt and her daughter-in-law also was hurt by the assault of the accused. Crl.A. No.100392/2017 13 The saree and blouse worn by her daughter-in-law were torn by the accused.
The witness further stated that, after receiving the complaint, the police had visited their house and as per the spot shown by herself and her daughter-in-law, the Police drew the scene of offence panchanama and collected the left leg chappal (foot wear) of the accused which the accused had left in the place which had fallen in the spot and also collected the torn saree and blouse of her daughter-in-law which articles the witness has identified at M.O.1 to M.O.3. She also stated that, the accused, by his act, has insulted them.
12. PW.4(CW.6) Ratna Narayana Sangolli has followed her mother-in-law i.e. PW.1 in her evidence and reiterated what her mother-in-law had stated. She has stated that they belong to Methri community which is a scheduled caste. About the incident also, she reiterated what PW.1 has stated. She also stated that, the accused having trespassed into their house, abused them including her husband in filthy language taking the name of their caste and Crl.A. No.100392/2017 14 also dragging them outside, physically assaulted by making use of his chappal. She too has identified M.Os.1 to 3 and she also identified the scene of offence panchanama at Ex.P-2.
13. PW.5(CW-7)-Narayana Kallappa Sangolli has stated that PW.1 is his mother and PW.4 is his wife and that he is running a garage on the front side of their house. They have back a door to their house from which anybody can enter their house. He stated that they belong to Methri community which is a scheduled caste. He further stated that since the accused was known to them since a long time, he is aware of their caste. Himself and PW.1 had stood as a surety in a criminal case to the accused. With respect to a plot, a dispute took place between the accused and himself, in which regard, the accused had filed a suit also. The witness further stated that in the year 2007 itself, he had given a gas cylinder to the accused for his use and return. However, despite these people asking, the accused did not return the gas cylinder till the year 2012. On the other hand, he started arguing that, he (PW.5) had not given gas cylinder Crl.A. No.100392/2017 15 to him. In that regard, he was thinking of giving a complaint against the accused and had told the accused accordingly.
About the incident, the witness has stated that on 30.07.2012 since it was a weekly holiday to his garage, he had been to Haliyal to see his brother who was under medical treatment. On that day, the accused had trespassed into his house and abused his wife and mother and also assaulted them publicly. Coming to know about the same, he went to the complainant-Police Station. At that time, his wife and mother had been to the Government hospital to take treatment. Joining them, he once again went to the Police Station. However, the Police, making them to wait for a long time, did not receive the complaint and told that they would summon the accused and enquire with him. Since the accused did not come, on the next day evening, they received the complaint from his mother. He stated that the accused has insulted them by taking the name of their caste.
14. PW.6(CW.8) Govind Yallari Bille in his examination-in-chief has sated that he is the resident of Kumbarakoppalu taluk. On the date 30.07.2012 he had been Crl.A. No.100392/2017 16 to Teragoan village. From there having gone to Alanvar and taking lunch, he was going towards Haliyal along with CW.9- Wilson on the motorcycle. While they were going near the house of the complainant, they saw in the backyard of the complainant, a quarrel was going on between the accused, the complainant and her daughter-in-law. He stopped the motorcycle. People had gathered in the spot. The accused was pulling the saree worn by the complainant and her daughter-in-law. The witness stated that he, pacified the dispute, however, he has not actually seen the accused assaulting the complainant and her daughter-in-law. However, accused was holding a chappal in his hand and was scolding with abusive language as Holeya (a scheduled caste) and son of bitch. He did not get as to whom the accused was abusing. Thereafter, the accused went towards his home. The complainant and her daughter-in-law went towards the police station to lodge the complaint. The daughter-in-law of the complainant had given him the telephone number to which he called. The said call was received by Narayana to Crl.A. No.100392/2017 17 whom he informed about the incident. He has identified the accused in the Court.
15. PW.7(CW.10)-Mahadevi Balappa Bedar in her examination-in-chief has stated that she is a resident of Mangalwad village and is doing business in Bangles by roaming village to village and house to house. About three years back, after doing her business in Havagi village, when she was proceeding towards Guttigeri village on Alnawar road, where the house of the complainant is there, the accused, who was present in the Court was quarrelling with Shivakka and her daughter-in-law. She went there. The accused was holding chappal and was assaulting them. He was abusing them taking the name of their caste alleging that Narya(Narayan) had lodged the complaint. People had gathered there. Among them, two male persons pacified the dispute. She advised the assaulted ladies to go to the Haliyal Police Station and lodge a complaint. The witness has identified M.Os.1 to 3 in the Court.
16. PW.1, PW.4, PW.5, PW.6 and PW.7 were cross- examined from the accused's side wherein all those Crl.A. No.100392/2017 18 witnesses adhered to their original evidence. Though PW.1, PW.4 and PW.5 admitted that there was a dispute between the accused and themselves with respect to a vacant site adjoining to their house and that the accused had filed a civil suit against them, however, all these witnesses denied the suggestion that, it is for the said reason, they have filed a false case against the accused.
PW.6 and PW.7 denied the suggestion that they are the relatives of PW.1 and PW.4, as such, they are giving false evidence. Except the same, nothing could be elicited in favour of the accused in the cross-examination of these witnesses.
17. After the above set of witnesses examined by the prosecution, the second set of witnesses upon whom the prosecution has relied upon was, the evidence of the Medical Doctor, who was examined as PW.8 and other official witnesses, who were examined as PW.9, PW.10, PW.11 and PW.15.
18. PW-8(CW.13) Dr. Asha M.D, has stated that she has been working as Obstetrics and Gynecologist in the Crl.A. No.100392/2017 19 Government Hospital at Haliyal. On 30.07.2012 in the afternoon at 3'O clock, Haliyal Police had brought two women to her with the history of assault along with a requisition letter. Among those two women, she first examined Smt.Ratna Sangolli (PW.4) who complained of pain in her left chin and left portion of her body. However, there was no external injury found on her body. In that regard she issued wound certificate as per Ex.P-4. Seeing the chappal at M.O.1 in the Court, she has stated that it is a gents chappal and if any one is assaulted with that chappal and hands, the pain alleged by PW.4-Ratna is possible to be caused.
The witness, further, stated that, on the same afternoon at about 3:10 pm, she also examined Smt. Shivakka who also did not have visible injuries on her body. However, Shivakka complained of total pain in her body. In that regard, she (this witness) has issued the wound certificate as per Ex.P-5. She further stated that, if any one is assaulted with a chappal at M.O.1, the pain as alleged by Shivakka can be caused. In her cross-examination, PW.8 has admitted a suggestion as true that, in case, if any one is forcibly Crl.A. No.100392/2017 20 assaulted with M.O.1, there is possibility of some impression in the form of a mark appearing on their chin and they sustaining injury. She also admitted a suggestion as true that, in case of a ear stud is found separated due to assault, there is possibility of the injury being caused on the ear.
19. PW.10(CW-4) Renukaa Laxman Koppad, the then Panchayat Development Officer of Havagi village stated that, based upon the details available in the records maintained by the Grama Panchayat, upon the request of the Investigating Officer, she had issued a house extract as per Ex.P-7 stating that the house involved in the case was standing the name of the PW.4 and PW.5. She was not cross-examined from the accused's side.
20. PW.11(CW.15) Pradeep has stated that the accused was working in their Minor Irrigation Sub-Divisional Office, at Haliyal as a Second Division Assistant. In that regard upon the request made by the Investigating Officer, he had issued the employment certificate as per Ex.P-9. In his cross-examination, though attempts were made to show that, the accused remains in the office from 10:00am to Crl.A. No.100392/2017 21 5:30pm for the whole day, the witness stated that, he cannot say so. He also stated that the lunch break in the office is between 1:30pm to 2:15pm.
21. With respect to the spot of the offence, PW.1 and PW.4, who are alleged to be the injured witnesses in the incident, have stated that it was in their house as well on the backyard of their house, which is connected to the road, as such it is a public place. They have also stated that the police had drawn the scene of offence panchanama as per Ex.P-2 and recovered the left footwear of the accused which had fallen in the spot and torn saree and blouse of PW.4 which they have identified at M.Os.1 to 3. Though the prosecution examined PW.2 and PW.14 as the panchas for the scene of offence panchanama but PW.2 did not support the case of the prosecution. However, PW.14 has supported the case of the prosecution and even identified M.O.1 to M.O.3.
22. PW.9(CW.11) Mahadev Erappa Koli has stated that, he is an Assistant Engineer in PWD. Based upon the request made by the Investigating officer, he has visited the Crl.A. No.100392/2017 22 scene of offence and inspected the same, as shown to him he has prepared the sketch as per Ex.P-6 and handed it over to the Investigating Officer. Thereafter, he has prepared one more sketch showing the distance between MIS Sub-Division Office to the house of the complainant as per Ex.P-16 and that the said distance is about 1.05 km.
23. PW.3(CW.5) Chandru Yallappa Kammar has stated that the seizure panchanama of the right foot wear said to be belonging to the accused as per Ex.P-3 was drawn in his presence.
24. In the light of the above evidence of the witnesses, it was the argument of the learned Additional State Public Prosecutor that the evidence of PW.1, PW.4, PW.5, PW.6 and PW.7 has clearly established that the accused has criminally trespassed into the house of the complainant, abused the complainant and her son in filthy language and also taking the name of their caste and he caused damage to the household articles and outraged the modesty of the complainant and her daughter-in-law and also assaulted them in filthy language and threatened them Crl.A. No.100392/2017 23 to their life. As such, the offences alleged against the accused has been clearly established in the evidence of these witnesses. However, the Special Court has not believed their evidence without any proper reasons. As such, the impugned judgment warrants interference at the hand of this Court.
25. Learned counsel for the respondent/accused in his argument submitted that the prosecution utterly failed to prove the motive behind the crime. Non-examination of the neighbours also creates a doubt in the case of the prosecution. He further submitted that PW.6 and PW.7 are not reliable witnesses because they are not neighbours. He also expressed the doubt in the case of the prosecution since the alleged pillion rider-Wilson was not examined by the prosecution. Not finding of any external injury upon PW.1 and PW.4 was also canvassed by him as a point to suspect the case of the prosecution. Stating that recovery of right foot wear of the accused is doubtful and there is no consistency in the evidence of PW.3, the learned counsel Crl.A. No.100392/2017 24 submitted that the judgment under appeal does not warrant any interference at the hands of this Court.
26. From the evidence of the above witnesses, it is not in dispute that the family of the complainant and the accused are known to each other since several years and also that, they are residing in close proximity. It is also an admitted fact that in respect of a vacant land, adjacent to the house of the complainant, there is a dispute between them, in which connection, the accused had instituted a civil suit against the accused. It is also not in dispute that PW.1, PW.4 and PW.5 belong to Madara (methri) community which is a scheduled caste and that the accused had the knowledge of PW.1, PW.4 and PW.5 belonging to scheduled caste.
27. The evidence of PW.1 and PW.4 has come in uniformity and it clearly go to show that, in connection with an alleged non-delivery of a gas cylinder, the accused is stated to have barged into the house of the complainant on 30.07.2012 at 1:30pm and searching for PW.5, who admittedly is the son of PW.1 and husband of PW.4, abused them in foul language and also taking the name of their caste Crl.A. No.100392/2017 25 as Holeya (scheduled caste) and son of bitch. No doubt, PW.1 and PW.4 themselves claim to be the affected persons(injured) in the incident, however, the evidence of PW.6 and PW.7 corroborates the evidence of PW.1 and PW.4. Though the learned counsel for the respondent submits that PW.6 and PW.7 are relatives, as such they are interested witnesses but except making a suggestion to that effect in the cross-examination of PW.1, nothing is placed before the court to show that they are interested witnesses. The suggestion made to PW.7 in that regard was also not admitted as true by the said witness. As such, it was necessary for the accused to establish that PW.6 and PW.7 are not only the relatives but also are interested witnesses.
PW.6 has shown in his evidence that he had reason to witness the alleged incident by stating that, on that particular day, while he was going on his motorcycle along with one Wilson, near the house of the complainant, he has seen the incident. He has also stated in his evidence as to, on that day, where he had been and from where he was going to Haliyal. The said aspect has not been specifically denied. Crl.A. No.100392/2017 26 Nothing was brought in his cross-examination to show either, that his presence at the alleged place of incident was unnatural or uncalled for or that he was relative of the injured. The said witness in his evidence though has stated that the quarrel was going on and accused was pulling the saree worn by the victims and he rescued them but he has specifically stated in his examination-in-chief itself that he has not seen the accused assaulting the complainant and her daughter-in-law. Had he really been an interested witness and had interest in ensuring the conviction of the accused, he would have also stated that he has seen the accused assaulting PW.1 and PW.4, which he did not do. Therefore, in the absence of there being any evidence to believe that he is a relative of PW.1 and PW.4 and that he is an interested witness, a mere contention that PW.6 was a relative and as such he is an interested witnesses is not acceptable. On the other hand, his evidence corroborates the evidence of PW.1 and PW.4 and shows that the accused had gone to the house of PW.1 and PW.4 and had initiated quarrel with them. In the said process, he had also pulled Crl.A. No.100392/2017 27 saree worn by those ladies. His evidence also shows that the accused was abusing them.
28. Added to this, in the cross-examination of PW-6, a suggestion was made to the witness that on the said date, from Alnavar, both PW.6 and Wilson directly went to their place. Though, the witness has not admitted the said suggestion as true, however, by making such suggestion, the accused has admitted that PW.6 and Wilson were together and they had been to Alanvar on the said day. The same is the case of PW.6 also who has stated that on the said day, he had been to Teragoan village and from there to Alnavar, after having lunch at Alnavar, he was proceeding towards Haliyal along with Wilson. Thus, the cross-examination of PW.6 rather-than weakening the evidence of PW.6, has added few more points in favour of the prosecution through the above suggestion.
29. The evidence of PW.7 also supports the case of the prosecution. No doubt, she too was alleged to be a relative of PW.1 and PW.4 from the accused's side. However, Crl.A. No.100392/2017 28 the specific suggestion made to the said witness in that regard in her cross-examination from the accused's side was not admitted as true by the said witness. In such a situation, it was for the accused to show that she is in fact a relative of the complainant which the accused did not do. On the other hand, PW.7 in her evidence by stating that she is a bangle vendor roaming from village to village and visiting house to house, has shown that there was all the reason for her to visit Haliyal village and as such, witnessing the alleged incident.
Apart from PW.6, even PW.7 has also stated that it was the accused who was abusing PW.1 and PW.4 in filthy language and was quarrelling with them. This witness has stated that two gents resolved the dispute and that she advised those two ladies to go to Haliayal Police Station and to lodge a complaint. The evidence of PW.6 that he resolved the dispute gains support from the evidence of PW.6. Similarly, the evidence of PW.1 that, after the incident, she joined by her daughter-in-law went to Haliyal Police Station to lodge a complaint also gains support and corroboration Crl.A. No.100392/2017 29 from the evidence of PW.7 that she had advised the complainant to go to the police station. Thus, the evidence of independent witnesses i.e. PW.6 and PW.7 fully corroborates the evidence of PW.1 and PW.4 and thus supports the case of the prosecution.
30. As seen above, PW.5 too has supported the case of the prosecution. Not doubt he is not an eyewitness to the incident, but his statement that he came to know about the incident from his wife and that he went to the police Station from there to the hospital, corroborates the evidence of PW.1 and PW.4 that by the time, they returned back to the police station, PW-5 was already there.
The evidence of PW.5 that he is running a motor garage on the front side of their house has remained undisputed and undenied. The said evidence is further supported from the evidence of PW.1 and PW.4.
31. The evidence of PW.1 and PW.4 shows that the incident took place initially inside their house when the accused barged into their house and it continued in a public place i.e. outside their house since the accused dragged Crl.A. No.100392/2017 30 them outside of their house through the back door of the house. Even PW.5 in his evidence has also stated that their house has got even a back door also from which they can access the road and that it is a public place.
32. Further, the evidence of PW.14 shows that the scene of offence panchanama as per Ex.P-2 was drawn in his presence. The said scene of offence panchanama at Ex.P-2, the place where the accused barged into the house was a RCC building which has got a garage and a residential portion in it. It also shows that it has got access to a main road at a distance of 34 feet from the room of the residence of PW.1 and PW.4. Thus, it corroborates the evidence of PW.1 and PW.4 that accused apart from barging into their house, had dragged them outside their house through the back door.
33. The scene of offence panchanama at Ex.P-6 which has been drawn by PW.9 also go to show that PW.5 has got a building wherein the first two rooms is using as workshop and store room and the remaining is the residential portion. The said building is shown to have two doors, one Crl.A. No.100392/2017 31 on the front side which is an entrance to the workshop and one is on the backside giving an entrance to an open space. From workshop to the residential portion also, there are connecting doors. After the backside space on the southern side, there is a kachcha road and on the front side, on the eastern side also, there is State Highway No.93. Thus, the said house has got two openings and those two openings leads to two different roads which are public places. Thus, the alleged incident which had began inside the house is established to have continued and ended in a public place.
34. Thus, it is established that on 30.07.2012 at 1:30pm the accused on the pretext that PW.5 is going to lodge a complaint alleging the theft of gas cylinder against him, barged into the house of PW.1 and PW.4 and abused them in filthy language taking the name of their caste and also dragged them outside of their house on the backside and in a public place, he continued his act of abusing them and by pulling their saree, attempted to outrage their modesty.
Crl.A. No.100392/201732
35. The argument of the learned counsel for the respondent was that, the non-examination of Wilson and also the absence of external injury on the persons of PW.1 and PW.4 also creates doubt in the case of the prosecution. To that regard, it cannot be ignored of the fact that PW.6 no doubt has stated about the presence of one Sri. Wilson also along with him. However, it is to be noticed that PW.6 himself has supported the case of the prosecution, as such, if the prosecution has decided not to examine the pillion rider Wilson, who incidentally was also a charge-sheet witness, it cannot be said that non-examination of said Wilson is fatal to the case of the prosecution.
No doubt, as noticed above, the Doctor (PW.8) who examined PW.1 and PW.4 has not noticed any external injuries on the person of either PW.1 or PW.4. She had given wound certificates as per Ex.P.4 and Ex.P-5 which also does not mention about the presence of any external injuries, rather, it specifically mentions that there were no external injuries on either of them. However, the Doctor has noticed the pain over left side of face and body in case of Crl.A. No.100392/2017 33 PW.4-Smt.Ratna and generalized body ache with PW.1-Smt.Shivakka. Needless to say that, for a hurt, which is an offence punishable under Section 323 of IPC, the existence of external bodily injury is not mandatory. When PW.1 and PW.4 have stated that they were assaulted by the accused with his hands as well with his chappal (left foot wear), it is not necessary that they should compulsorily have external injuries.
Learned counsel for the respondent drawing the attention of this Court to a portion of the evidence of PW.8 in her cross-examination submitted that the said witness has admitted a suggestion as true that, in case, if a person is forcibly assaulted with M.O.1 there is all the possibility of a mark being appeared on the chin and he sustaining injury. No doubt, the Doctor has admitted the said suggestion as true and also has admitted the suggestion as true that, in case, if an ear stud is broken and separated by an assault, there is possibility of the injury near the ear. However, it cannot be ignored of the fact in the instant case that, neither PW.1 nor PW.4 have stated that they were assaulted with Crl.A. No.100392/2017 34 M.O.1 with force by the accused. They have only stated that the accused assaulted them with hand and his left foot wear. They have not stated that the said assault was forceful. As such, since the doctor has said, an forceful assault with chappal may cause a mark, we cannot anticipate said mark or injury in the case when it was a mere assault of simpliciter by the accused's foot wear. The same reasoning applies even for non presence of any external injury with the ear also.
Added to that, it also cannot be ignored of the fact that the Doctor nowhere stated that in all such cases of even a forceful assault, necessarily there should appear some external injury, but has only stated that a possibility of injury would be there. So mere possibility cannot be generalized as necessarily there ought to be some external injury. As such, the said argument of the learned counsel for the respondent in that regard is not acceptable.
36. The incident in the instant case, is said to have taken place on the date 30.07.2012 at about 1:30 pm whereas the compliant at Ex.P-1 came to be registered only on the next day i.e. on 31.07.2012 at about 7:00 pm. Thus, Crl.A. No.100392/2017 35 there is a delay of more than a day in registering the complaint. In that regard, PW.1 in her evidence has stated that after the incident, herself and her daughter-in- law(PW.4) went to the complainant Police Station in an autorickshaw by getting the compliant written through one Sri. Srikaanta Bidarolli. However, the Police sent them to the hospital. After the medical treatment, when they returned to the police station, the police, immediately, did not receive their complaint, as such they returned to their home. It was only on the next day, the police received their complaint. The said evidence of PW.1 has not been specifically denied from the accused's side in her cross-examination.
Similarly, PW.4 also has stated that immediately after the incident, both herself and her mother-in-law went to the complainant police station, however, the police first sent them to the hospital from there when they returned to the police station, her husband (PW.5) was in the police station. The said evidence of PW.4 that immediately after the incident, they went to the police station and that they were sent to the hospital, has not been specifically denied in her Crl.A. No.100392/2017 36 cross-examination. The said evidence is further corroborated by the evidence of PW.5, who also has stated that after coming to know about the incident, when he went to the complainant police station, his wife and mother had been to the Government hospital for their treatment. After getting them, when he went to the police station, the police made them to sit for a long time and without even receiving the complaint, sent them home stating that they would summon the accused and enquire with him. It was only on the next day at about 7:00pm since the accused did not come to the police station, the police received the complaint by his mother.
37. The evidence of PW.13-Head Constable of the complainant Police Station also shows that he had stated in his examination-in-chef itself that both PW.1 and PW.4 came to his Police Station and appeared before him on 30.07.2012 at about 2:30pm complaining that Kishor Vajra Naik (the accused) entered their house, assaulted them with a chappal and also abused them by taking the name of their caste. The said police official further stated that after giving the history of Crl.A. No.100392/2017 37 the incident, they proceeded to the hospital, as such, he wrote a requisition to the hospital and sent them along with his staff to the hospital. The witness has further stated that those two persons did not return from the hospital immediately. However, the son of the complainant Narayana came to the police station in the evening and stated that since the accused was a close friend of him, he would try to settle the matter with him, otherwise he would come and lodge the complaint. Accordingly, on the next day when the Sub-Inspector was in the Station, the complainant came and lodged the complaint. Though denial suggestion was made about PW.1 and PW.4 going to the police station on 30.07.2021 at 2:30 pm, to this witness in his cross- examination but he has not admitted the same as true. On the other hand, the evidence of PW.8, the Doctor also corroborates the evidence of PW-13 since the said Doctor also stated that on 30.07.2012 at about 3:00 pm it was the complainant police who had brought PW.1 and PW.4 before her with the history of an assault. Thus, the evidence of PW.1, PW.4 and PW.5 makes it very clear that immediately Crl.A. No.100392/2017 38 after the incident, they had been to the police station and it is through the police only they were sent to the hospital and after returning from the hospital, according to PW.1, PW.4 and PW.5 the police did not receive their complaint on the said day. As such, on the next day, they went to the police station again and lodge the complaint. Therefore, the version of PW.13 that PW.5 though appeared in the evening, he himself took time by a day to lodge a complaint appears to be incorrect and not true. On the other hand, the evidence of PWs.1, 4 and 5 that the police themselves did not receive the compliant on the said day stating that they would summon the accused and enquire with him appears to be true. As such, there is delay of more than a day in filing the complaint. Since the said delay has been properly explained and it has caused no prejudce to the interest of the accused, the said delay itself would not weaken the case of the prosecution.
38. The evidence of PW.17 who is the investigating Officer that she visited the spot and drew a scene of offence panchanama as per Ex.P-2 and seized M.Os.1 to 3 in the spot Crl.A. No.100392/2017 39 and she secured the house extract as per Ex.P-7 from the Panchayat Development Officer and also the wound certificate as per Exs.P.4 and P.5 from the Doctor and the caste certificate of PW.1, PW.4 and the accused as per Exs.P-11, P-12 and P-13 have all been corroborated by the evidence of the witnesses as observed above.
39. In addition to that both PW.1 and PW.4 have stated that the accused while assaulting them, has outraged the modesty by pulling their saree and he also torn the blouse worn by PW.4. In that regard they have identified the torn saree and the blouse which were seized by the Investigating Officer while drawing the scene of offence panchanama as per Ex.P-2. They have also stated that in the incident the accused who had used his left leg foot wear (chappal) had also fallen in the spot and the same was seized by the police under the same panchanama. Both PW.1 and PW.4 as well PW.14 have identified M.Os.1 to 3 in the Court.
In addition to the above, the Investigating Officer, i.e. PW-17 in her evidence has stated that the accused when he was produced before her was arrested by her and the said Crl.A. No.100392/2017 40 accused has given his voluntary statement before her as per Ex.P-15 in which the accused has produced the missing pair of the right foot wear chappal which she had seized by drawing a mahazar as per Ex.P-3 and she has identified the said chappal at M.O.4. The said evidence that M.O.4 is a right foot wear forming the part of a pair of chappal along with M.O.1 is not in dispute. Thus, when accused has produced stating that it is his another chappal which is at M.O.4 and PW.1 and PW.4 have identified M.O.1 as the left leg chappal (foot wear of the accused) it further corroborates the evidence of PW.1 and PW.4 that the chappal at M.O.1 was the chappal of the accused and that they were assaulted with the said chappal by the accused. Thus, the act of the accused committing house trespass with a criminal intention to abuse and threaten the inmates in the house on 30.07.2012 at about 1:30pm and also assaulting PW.1 and PW.4 with his hands as well with M.O.1 has stood proved beyond reasonable doubt. Thus, the offence committed by the accused which is punishable under Sections 448, 323, Crl.A. No.100392/2017 41 355 and 506 of IPC has stood proved beyond reasonable doubt.
Similarly, the evidence of PW.1, PW.4, PW.6 and PW.7 has further established beyond reasonable doubt that the accused apart from assaulting and abusing PW.1 and PW.4 inside their house also continued his act by dragging PW.1 and PW.4 outside their house and in a public place abusing PW.1 and PW.4 in abusive language taking the name of their caste knowing fully well that PW.1, PW.4 and PW.5 were belonging to scheduled caste. PW.1 and PW.4 have stated that they got insulted by the said act of the accused which was made in public and a very act of the accused who is admittedly a public servant, as such, was aware of the consequences, makes it clear that knowing fully well that his act would result in insulting PW.1 and PW.4, he committed the act of abusing them in filthy language in a public place and also assaulted them and pulled their saree. Thus, it is also established beyond reasonable doubt that the accused has committed an offence punishable under Section 3(1)(x) and 3(1)(xi) of SC and ST Act(prior to amendment). Crl.A. No.100392/2017 42
However, it is also the case of the prosecution that the accused has committed an offence punishable under Sections 504 and 427 of IPC.
In order to constitute an offence punishable under Section 504 of IPC, apart from the accused committing an intentional insult upon the victim, his act should have been given provocation to that person causing him to break the public peace or to commit any other offence.
40. In the instant case, the evidence of PW.1 and PW.4, no doubt, has established that the accused has intentionally insulted them, but their evidence does not go to show that by such an act of the intentional insult committed by the accused, they were given provocation causing them to break the public peace or to commit any other offence. Thus, one of the essential ingredients of Section 504 of IPC, the prosecution could not able to prove the offence against the accused punishable under Section 504 of IPC.
41. The accused was also charged with an offence punishable under Section 427 of IPC. In order to prove the Crl.A. No.100392/2017 43 offence punishable under Section 427 of IPC, it has to be established that the accused has committed mischief and thereby has caused loss or damage to the amount of Rs.50/- or upwards.
42. No doubt, in the instant case, PW.1 and PW.4 have stated that the accused after trespassing into their house, apart from abusing them in filthy language and assaulting them, had also damaged the utility and household articles. However, except their oral statement there is nothing on record to show that such a damage was caused by the accused to the domestic utility articles and the same has resulted in a loss or damage to an amount of Rs.50/- or upwards. Had there been any such damage to any of the utility articles, necessarily and definitely, the Investigating Officer would have collected those damaged articles during the drawing up of scene of offence panahnama at Ex.P-2. When they noticed the chappal belonging to the accused in the spot and collected the torn saree and blouse and got them exhibited as M.O.1, M.O.2 and M.O.3 nothing was prevented for the same Investigating Officer to seize the Crl.A. No.100392/2017 44 alleged damaged other articles, if any, in the spot and produced them in the Court. As such, mere say of PW.1 and PW.4 that the accused damaged the utility articles since has not been proved, though it could have been proved by producing the material evidence, it cannot be held that the accused has caused damage and committed an offence punishable under Section 427 of IPC.
43. Thus, when the prosecution has proved the guilt of the accused for the offences punishable under Sections 448, 323, 355 and 506 of IPC and for the offence punishable under Section 3(1)(x) and 3(1)(xi) of SC and ST Act, the Special Court without appreciating the evidence placed before it, in its proper perspective, has drawn its own conclusion by irrationally reasoning that, the pendency of the civil suit between the parties, creates a doubt in the case of the prosecution, as such, the complaint filed against the accused was a false complaint. Further, its observation that the complainant at one place in her cross-examination has said that she has not lodged the complaint but her son has lodged the complaint whereas her son who was examined as Crl.A. No.100392/2017 45 PW.5 has stated that it was her mother (PW.1) has lodged the complaint also creates a doubt in the case of the prosecution, is not a convincing reason. No doubt PW.1 at one place has stated that it was her son who has lodged the complaint but the analysis made above go to show that her son was also present in the police station when PW.1 and PW.4 returned from the hospital after obtaining the treatment. Further, the evidence of PW.16 also goes to show that it was PW.1, who lodged the complaint as per Ex.P-1. As such, the Special Court has created a doubt on its own and improperly accepted the said doubt which made it to pronounce the judgment of acquittal giving the benefit of doubt to the accused. Since the said reasoning of the Special Court now appears to be not acceptable, on the contrary since the prosecution, as analysed above, has proven the alleged guilt of the accused except the offences punishable under Section 504 and 427 of IPC, the judgment of acquittal under appeal deserves to be set aside and the accused deserves to be convicted for the offences punishable Crl.A. No.100392/2017 46 under Sections 448, 323, 355, 506 of IPC and under Section 3(1)(x) and 3(1)(xi) of SC & ST Act.
44. Accordingly, we allow the appeal in part. The impugned judgment dated 04.07.2017 passed by the learned Special Judge, Uttara Kannada, Karwar, in Special Case No.18/2012 acquitting the accused for the offences punishable under Sections 448, 504, 323, 355, 427 and 506 of IPC and Section 3(1)(x) and 3(1)(xi) of SC & ST Act is set aside.
The accused(Kishore Vajra Naik) is convicted for the offences punishable under Sections 448, 323, 355 and 506 (Part-I) of IPC and for the offence under Section 3(1)(x) and 3(1)(xi) of SC & ST Act.
The accused is acquitted for the offence punishable under Section 504 and 427 of IPC.
45. Heard the submission of the learned counsel from both side on the sentence.
46. Learned Additional State Public Prosecutor submits that considering the fact that the accused being himself a public servant and knowing the consequences of Crl.A. No.100392/2017 47 his alleged act since has committed the proven guilt, deserves to be punished with a maximum sentence awardable under the Section.
47. Learned counsel for respondent submits that the accused is a public servant and the Court has opined that he has committed the alleged offence, as such, considering the family commitment of the accused and his standing in the society, the minimum punishment, preferably, in the form of fine alone be ordered.
48. It is the sentencing policy that the sentence ordered should not be either exorbitant or for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.
49. In the instant case, as analysed above, the accused is, admittedly a public servant, working as a Second Division Assistant in an establishment. It is brought to our notice that there are no antecedents of any criminal act or case upon the accused. As per the Section 19 of the SC & ST Act, the provisions of Section 360 of Cr.P.C. and Probation of Offenders Act, is not applicable to the guilty for an offence Crl.A. No.100392/2017 48 punishable under SC & ST Act. Considering all these aspects, we proceed to pass the following order on the sentence:
ORDER
(i) The accused (Kishore Vajra Naik) who is convicted for the offence punishable under Section 323 of IPC is sentenced to pay a fine of `750/-, in default, to undergo a simple imprisonment for fifteen days.
(ii) For the offence punishable under Section 355 of IPC, the accused shall pay a fine of `2,000/-, in default, to undergo a simple imprisonment for three months.
(iii) For the offence punishable under Section 448 of IPC, the accused shall pay a fine of `750/-, in default, to undergo a simple imprisonment for fifteen days.
(iv) For the offence punishable under Section 506(Part-I) of IPC, the accused shall pay a fine of `2,000/-, in default to undergo simple imprisonment for three months. Crl.A. No.100392/2017 49
(v) For the offence punishable under Section 3(1)(x) of SC & ST Act, the accused shall undergo a simple imprisonment for a period of six months and to pay a fine of `4,000/-, in default to undergo simple imprisonment for four months.
(vi) For the offence punishable under Section 3(1)(xi) of SC ST Act, the accused shall undergo simple imprisonment for six months and pay a fine of `4,000/-, in default, to undergo simple imprisonment for four months.
All the sentences shall run concurrently. The respondent/accused shall surrender before the Special Court within fifteen days from the expiry of the appeal period.
As requested by the learned counsel for respondent, the implementation of sentence is deferred from today till the period of appeal/SLP expires.
A free copy of the judgment be furnished to the accused by the registry immediately.
Crl.A. No.100392/201750
The registry to transmit a copy of this judgment along with Special Court records to the concerned Court for their needful in the matter in accordance with law without delay.
Sd/-
JUDGE Sd/-
JUDGE kmv