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Karnataka High Court

Venkappa Gowda vs The State Of Karnataka on 3 August, 2010

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IN THE HIGH COURT OF KARNATAKA. BANGALORE

DATED THIS THE 3RD DAY OF AUGUST 2019
BEFORE  T

THE HON'BLE MR. JUSTICE':  V
K.N.KEsHAVANA.RAYANA.. ,\ _  - '

CRIMINAL APPEAL No. T7'? 01% ggzools c(e1  J 
BETWEEN: " L l " T " "

Sri.Venkappa Gowda.

Aged about 51 years,   

S/ o late Odiappa Govvda,  "  '

R/o Meenandelu Maize', -  ' V

Belalu Village, 'T _ I '   __ 

Be1thangaayTa1uk        E   APPELLFNT

[By Srif ArunlS'l'13:a111}'o'Ad'§{ocate]

V A   "of Karnataka
 *Reptdv.._by"its 'State Public Prosecutor,
" ._ HighVCO_U,1ft'.ofV Karnataka,

B_anga].o1*e, ' ... R ES F' 0 H136 MT

3   ~ :{]3_y sari. G.M.Srinivasa Reddy, HCGP}

This Criminal Appeal is filed u/s 374(2) Cr.P.C by

l   V __5the advocate for the appe1}ant/ accused against the
' judgment dated 21.4.2005 passed by the II Addl. S.J <3:

Sp}. Judge, Mangalore, D.K , convicting the appellant-



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accused for the offence punishable under section 341
of {PC and Sec. 3(i} [X] of SC/ST (PA) Act, 1989 and
sentencing him to undergo S.l. for one month and to
pay fine of Rs.500/--, 1.1)., to undergo SI. for one week
for the offence punishable under Section 3412f IPC
and further sentencing him to undergo S..I., *-.for._ 6
months and to pay fine of Rs.5000/--, I.D., .t_0'urid'ergo
SI. for one month for the offence punis.h:abie.'junder'

secfion 3(u on in' sc/sq' Gas) Act" 1989; The_xa

substantive sentences shall run ,c.Qncurrently;.  '

This Criminal Appeal corning;'_"on flo'1"_l 
day, the Court delivered the following:- " " '   "

JUDGfi§NTmf§ll
This appeal  directed against
the Judgment and   passed by

the Vii"lSeE%:sions:"anld"Special Judge, Mangalore,

1)ig;,aitspgcfiglxsaselbkxai/2003, convnning the

accused of v_'the';.charg'eVs levelled against him for the

 0ffenc;es punlishablle under Section 341 IPC and

  of SC and ST [Prevention of Atrocities]

  short Special Act} and sentencing him to

 pg undergo SI. for one month and to pay fine of Rs.500/--

 -.,V"for.?5the offence punishable under Section 341 of IPC

 V sand to under to S1. for a period of 6 months and also

/I



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to pay fine of Rs.5,000/-- for the offence under Section

3(1) (X) of the Special Act.

2] Case of the prosecution in brief is as

I-".W.1 Gopal, son of Thoda Parava belongs 

Caste, which is a scheduled caste. v"o":it.Vhis'A"

livelihood by doing coolie wori:;"1anL51_A ialisoa 

am» ééifi am". AboutViiéy-days"'ipriozftp ""iy1;'s.2oo3,i"'

p.w.1 had borrowe'd..V_ a .Vsiiri1b:'jyot"-Rs.1'(§OV/'-- "ifrom the
appellant/accused   the same

shortly. iiotxteyer,   repay the said

amount'; sfinee  didnot get'"coo1ie work during the rainy
season.  8.80 p.m., while P.W.1

was rettii-vningy  house of one Kolpady Srinivas
near Peenari, he met P.W.2wVasantha

V  Annigowda and one Annugowda. The

't accnseidi came there after putting torch light on the

 face'  P.W. I asked him why he has not repaid the

 i.rno'ney, for which P.W.1 replied that on account of rainy

season, he could not get the coolie work and therefore, he

was not in a position to repay the money and sought for

a



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one week time. At that juncture, enraged by evasive
reply from accused, with an intention to insult and

humiliate P.W.}, a member of scheduled  a

public place abused P.W.1 touching his 4' 

sows mg 03055 zmapcaa a5ea3aF,%b'Ofi'~-aiari 

thereafter, the accused by _holding  of ,' 

making him to bend f0rWar'd,fa.ssau1ted'"PEN  his'

chappal on the bac1§"a_nd  Oniihearing the
screams of P.W.1,   rescued

him from t,he"j,;accus_ed€,L  returned to

the   incident to his wife
P.W.  next day, P.W. 1 and his wife

went to the_:v'0ffi.ce .'ofVéT:Dalith Sangarsh Sarnithi (DSS)

 and eXpl'ained the incident and as per their advice,

    Community Health Centre, Belthangadi.

Cm re_ceixr«ing intimation from the hospital, police came

 .. to theshospital and recorded the statement of P.W.1

 regard to the incident as per Ex.P.1 based on

"Cwhich, case in Crime N0.1(}4/2003. came to be

registered and investigation was taken up. During

fly



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investigation, the investigating officer visited the scene
of occurrence, drew up rnahazar in the presence of
panchas, apprehended the accused and seized Hawai

chappals from the possession of the accused 1a.s»o.per

M.O.1 and thereafter recorded the  

witnesses, secured the caste certificate..p:ertai.ning u 

P.W.1 from the Tahsildar, wo:'und-.c.eirti--ficate- 

hospital and after completing  

charge sheet.
3) The accused guilty for the

charges_  him and claimed to be tried.
The prosecution":'.Ied""ei§}id.ence by examining P.W.1 to

[14 and"  'marking documentary evidence Ex.P.1

   his examination under Section 313

 ._  accused denied ali the incriminating

ciéfcurnstances appearing against him in the evidence

 " ofathe prosecution witnesses. By way of defence, the

Atgaccused examined one Srinivas Bhat as D.W.1. The

' defence of the accused is one of total denial and that of

false implication. wt



4) After hearing both sides and on assessment

of oral and documentary evidence, the 

Judge by his judgment under appeal 

prosecution has proved the guiltmol'the-gaccugserl 

offences punishable uI1d_€I_' Seictioni 

Section 3 (1) (x) of the special Act. "cene[equeޣ1y, the

learned Judge cor1ir'icted'g'it'lthei':':.accused  the said
offences  sentenced Being
aggrieved   'conviction and order
of   before this Court.
 1"  Arun Shyam, learned
counslelsfor  Sri.G.M.SriniVasa Reddy,

learned HCGP_a'ppe';aring for the State and perused the

,4 vtecortls. .4 

  'V "Learned counsel appearing for the appellant

  " contended that the judgment under appeal is perverse

 illegal inasmuch as, the learned Special Judge has

H failed to note several circumstances brought out on

fl

«@



record which would indicate that P.W.1 is not a
truthful Witness and in the absence of.___ any

corroborative evidence, the testimony of 

not have been accepted to record a convieti.o'1'1l"  

contended that the evidencemlof.  highly '

discrepant and inconsistent.  

learned Special Judge hasnot-appreci_aterl'.= thelanswersll

elicited in the cross--'e)<:ami;nation.  1' to find out as
to whether the evidenc'el._ol'l'.'fF'l'§lV..1..:lVisA-acceptable or not.

Therefore, 'evidence by the learned

Special"J.u.dge i'sf:.;not'-in-acco'rda'nce with the well settled
principles of_1Va:i%eAviand'.'thighas resulted in an erroneous

judgmentflI*"Ie:conten--liled that the Court below has

 ».notice"that P.W.l is an interested, motivated

'and :"ini1nic_a1--.,uritness, as such his evidence could not

'be basis to record a conviction. He further

 subfn.i_t*ted that the Court below has failed to see the

 'vcircumstances that even according to P.W.1, he had

Hlborrowed a sum of Rs. 100 / -- from the accused and had

not repaid the same therefore, it is quite probable that

in order to avoid repayment of the money borrowed by

A



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him, P.W.1 had lodged a false complaint. He further

contended that mere recovery of chappals -- 
could not incriminate the accused and even 
to the evidence of P.W.I, the alleged  
place in the darkness at about 813.0'  hell
could not identify his chappals.VtHleg
that the totality of the cilrctf1'1npstanceS' 'out on"
record clearly indicates lthefl prosecution has
utterly failed to prove therefore

the judgme13't#c_',-«f convic..ti0nAl"'recorded by the Court

belovv'lsuf_.fers from'"-pe--rvers'ity;"4 illegality as such it is
liable*_to_ be  asiCiej,l'V._.In these circumstances, he

sought for allowing "the appeal by setting aside the

 j<.i_dgr;1ent Agunderwarppeal and to acquit the accused of

A  ilevelled against him.

''  Per contra, the learned Government pleader

l.l'll--Aj"S0t1ght to justify the judgment under appeal. He

_5lCOI1t€I'1Cl€d that the judgment under appeal do not

suffer from any perversity or illegaiity. since the

learned Judge on proper appreciation of oral and

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documentary evidence has recorded a finding that the
evidence of P.W.1 has inspired the confidence of the

Court, therefore, the Court below has not corninit-ted

any error in convicting the accused p1acingi..reliari'C«e  

the evidence of P.W.1. He further _'conte'tjidleidV'_'_thatV'

merely because P.W.1 is an"'iinte_rested-- 

evidence cannot be rejecte_d=.and on close Vscrutiny of"

the evidence of P.W,-1.', they-Courtllbelowllhas found him
reliable as such no lerrorl'h.a°S:' b'eleVn'_»..committed by the

Court be1ow«'iri_~.pla;cin.§  the testimony of

evidence of P.W.1 has
not been  there is no ground to

reject  P.W.1. He further submitted

  grnerely bec--au'se, the testimony of P.W.1 is not

co'1'rob.orated"--..by independent eye witnesses, it is no

fground.dliscard the testimony of P.W. 1. According to

 the "learned Government Pleader, the judgment under

Cl'-,,'€.l.ptpeal recorded by the Court is sound and well

founded, as such there is no ground to interfere with

the said appeal. Therefore, he sought for dismissal of

V-I,'

the appeal. 



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8] I have bestowed my anxious consideration
to the submissions made by both sides. Having.
both sides and having perused the   
the judgment under appeai,   fors
my consideration in this appeaiare-iA_V'A'  i i it

1) Whether the  Sgaeciai 
justified in  the iappellcafirit

is gui1t}Vr_  ivch-aji*~ges_ for the

offences puiiishabie '"unde;r---  Section

 and Section'~3[i)_h__[2§) of Special

" -- A ffct?  "

  Vv W'h'et1%1__e_1f,the judgment under appeal
 _:'suffers from perversity or illegality

  for interference by this Court?

 Though in the cross examination of P.W.1 and

 _  Iszsthe Tahsildar who issued the caste certificate it

 -suggested that P.W.1 is not a member of schedule

'caste and that he does not belong to parava caste,

there is no reason to discard the contents of the



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certificate Ex.Pl0 issued by P.W.12 with regard to the

caste of P.W. 1.

10] In fact D.W.l Srinivasp Bha.t""in:j'his'.:cross'-'"' it

examination only pleads ignorance  
that P.w.1 belongs to o'P=*f§vgircésig:e dlfhfrelaeccruseddiel
during his examination   Cr.P.C.
merely denies the   In his written

submission 'tiled :iiidei¥; secftioli  Cr.P.C., the
accused __ 'las __Gopal Parava thereby
admittinglpthat;'i?.;.'iV."1'.Vpbelongs-to Parava caste. There is

no serious 'disp'ut:e'i»that'Ifarava caste is a caste falling

under scheduled  Therefore, the Court below is

  in tho}-d«irig that P.W.1 is a member of

 scitiedupled' caste.

  "  According to the case of prosecution, PWS.

 '   were the eyewwitnesses to the incident alleged.

2"§l~dl'oA\A2\7eVer, PWs.2 & 3 during their evidence before the

 Court did not support the case of the prosecution.

They were declared hostile and were cross--examined

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by the learned public prosecutor. However, there is
nothing in the cross--eXamination of these two

witnesses to indicate that they have deliberately

deposed falsehood though they had 

incident alleged. Therefore, the »eviden-:ceHof  

is of no assistance to the pro"sec-ution.ll"- _Under

circumstances, the only ev,id'ence available ViIg:)'}~f"pr'oVing"'

the guilt of the accused for-'tht.e_:'eharges flltevellefld against

him was the oral eyidericeofi' in his oral

evidence h_as~,_reiter§ate_c1jthewdtclase  the prosecution.

He  atlen-gth. The learned Special
Judge  of PW.l proceeded to

hold the-«..dappe1lai~3t/'accused guilty of the charges

   a.gainst"hin'1. Therefore, what is required to be

"'co'nsidered..o_Vi'n this appeal is, whether the learned

 is justified in accepting the evidence of

 PW."1.__:étnd in basing the finding of conviction on the

 'veoikience of PW.1. No doubt, merely because PWs.2 81

_.;%3 who were stated to be the eye--witnesses turned

hostile and did not support the case of the

prosecution, the evidence of i3W.1 cannot be rejected.

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Nevertheless, PW.l heing the complainant and

interested in conviction of the accused could beptermed

as an interested witness. Therefore, his e'€{iden'ce__:'lias' 

to be ciosely scrutinized before" pacce§)ti'ngi'_thVe': san:.e.""

Before accepting the evidence of I?_\/V.."i, it is_."r1eVcessary

to find--out as to whether'his.,evide'ncehas  any-it

way impeached or    cross
examination. It is  Court to find-
out whether4.:;PW.l   so that it
inspires    utmost confidence
can   'evidence. Perusal of the
judgriient _in.my opinion, indicates that

the_learned Special-Judge has not made any endeavor

 tor'find--o1it Whetiier PW.l is a truthful Witness and

 hisieyidence in any way has been impeached

linggllithe. .c:r:osls--exarr1ination. The Court below on the

 gbasi"sV.V__d*of the statement made by PW.l in his

 'exarnination~in--chief, has proceeded to hold the

_:%appeilant/ accused guilty of the offence alleged against

him. M



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12) According to the evidence of PW.1, he had

borrowed Rs.100/~ from the accused during the___ rainy

season of the previous year promising to rep-a_'y_:'the

same within two weeks and since he could' 

work during rainy season, h;e"'"co.uld'_4 nofirepayj. the

amount within two weeks. The"e1rnmedi.ate, 

the incident was said "of the'

amount of Rs.100/;,yvheAn"'the: d"en_1and"rnade by the
accused. However, i the it the cross»

examination"ofp;j'PW}A_1   that he had not

borrowed."frorn""the§ accused and that the
accused' did  demand to him at any time

to repayi"t.he Sv£'li11e*.-,_s  the complaint what has been

   14 days prior to the complaint he

V   a sum of Rs.100/~ from the accused.

is contradiction as to the time when PW.1

 said"  have borrowed money from the accused.

 'Exicept the oral say of PW. 1, there is absolutely nothing

A _.;%on record to establish that PW.1 had borrowed

Rs.100/- from the accused. Thus there is no

satisfactory evidence to establish that PW.1 had

s
\
 /



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borrowed RS100/-- from the accused. According to the

evidence of PW.1, on the date of the incident viz,

11.08.2003

he had been to the house of_4..Kuo1:p»ady Srinivasa Bhat {DW.1) for work.

examination he has stated that .fro__1n 3_-.'O"C)"

p.m., he plucked coconut and":.the_reafter..'he' the work of husking theVco'co_nut'whichbhefcompjleted'at by about 8.15 p.rr1. and thiereafter, he 'le'ft.th.e:§house of DW.1 and While oh"h;s his house, the accused m.et::hi_rr1;;near'V..:Peen'ary' Ljunction of three roads);"'ewh'ere 'accusedieedemanded repayment of money and when..he._.re.fu£sed, the accused abused him in fi1thyV'1"a.nguaVg._e Aandeassaulted him with chappal. In er:os.sA-exarr1i'n--a'tion of PW.1 he has denied the V he did not go to the work in the house in his oral evidence has asserted that on t'i1at day, PW.1 did not come to his house for work PW.1 carried-out any work with him on that day.

_.:%Except the evidence of PW.1, there is absoluteiy nothing on record to show that on that day PW.1 had gone to the house of DW.1 and worked there. 16 Therefore, it is highly doubtful as to whether PW.l was moving near peenary at about 8.30 p.rn. on 11.08.2003. If the evidence of PW.1 is read it indicates that at the place of alleged was pitch darkness as it was .3230. p.1-ln. Vjlccording to ' PW.l, the accused was torch accused focussed the torchg:"'light'hvon. iris faced' and identified him' ri3efore.l'dernnaln'ding rnoriey. In the coH1plaint-Ex.Pl, it is accused was holding a according to the COHt€f1fS..of7jE}f.:E"1.\"PVVS.2.'"3'"£i1'1d another, who came there'*_af'ter'hearing'.hifs._screams were holding torches. Therefore... there}. is-._n'c-fconsistency in the evidence of regardwtov the accused holding a torch. PW.1 "in"his.e:«ta1ni.nation--in»-chief has identified MO.l as which he was assaulted. If there was pitclifiarkness, it is not forthcoming as to how he:

"could identify the chappal with which he was glassaulted. According to PW.1, he was given Patti for conducting devil dancing. However, in the cross- examination it is elicited that the said honour would be M 17 given to only one person at a time and during the lifetime of such person, such honour will not be given to another. It is further elicited from him that one Dugga Parava has been conferred with honour and he is still alive. Thus during Dugga Parava, as admitted by "PW..«1 Vhonour could not be conferred on said to have occurred as' could be seen from.__EX.Pllconzplaint, the 'statement appears to have recorded and 5.00 pm. on "--.Cfion1munity Health Center, Belth'an'g;ady.: .4iseA..rio_.'satisfactory explanation from PW,l not immediately report the .._to the"'-police. Thus, there is unexplained A iaagmeg the complaint.

'fllaving regard to the above circumstances. A it is" highly difficult to believe that PW.1 is a truthful 'witness. Utmost confidence cannot be reposed on the ftestimony of PW.1. Therefore, this is a case, which calls for corroboration from independent Witnesses. av' 18 However, there is absolutely no other independent evidence to corroborate the testimony of Therefore, in my opinion, the Court bel.r§):w"was__j'1é:,ot justified in reposing utrnostm goonfi'deI1--c:e,fon"_ the testimony of PW.l and to base:,'conviction' on7--s1f1c_1f1 testimony of PW.1. fhavefif' been hurled by the ;_accused.fp'er 'say cannot termed as insulting PW. 1. of assault with chappal is "No doubt, the seizure However, that by itself. the accused. The evidence Kumar is only to the effect thatw'hen._lde,_feXamined PW.l at about 11.20 am he-'only noticed pain on the back of the V back. In the cross--examination PW.14 such pain can occur for any other Ag reas"on* also. Having regard to the evidence available V."ff.,,V"cn'f.--record, I am of the opinion that the Court below is _.:§not justified in convicting the accused for the charges levelled against him. PW.1 is not shown to be a truthful witness. His evidence has been impeached in 51 x x i 19 the cross--examination. The inconsistency brought--out on record has discredited his testimony. Even according to PW.1. he had borrowed a sum of /_ from the accused. Therefore, the _ creating false story with a Vl€\?\:fml[V(b)' the said amount cannot be circumstances, the evidences.' of acceptance. Therefore, justified in placing reliance PW.i. Under these circurnstances',"" under appeal suffer S S is "erroneous, therefore, it canri"o_t be this View of the matter, the appellanffaccused*-islehtitled for an order of acquittal. 2 Accor'd*ingly, the appeal is allowed. The "coriviction and order of sentence dated passed by the Special Judge in Special l'~».ACase..l_\lTi1o.31/2003 convicting the appellant for the "off.lélnces punishable under Sections 341 of IPC and .:land Sections 3[I)(x) of the Special Act, is hereby set V1 M 20 aside. The appellant/accused is acquitted of all the charges levelled against him.

The Bail and Surety Bonds of ordered to be discharged. Thefine. :;1r'rio1:1iittV:'tleV1:3o«:=;ited t by the appellant in the CourttA:'b_e:1o"§2A§f refunded to him.