Kerala High Court
Peedikandi Abdulla vs State Of Kerala on 23 March, 1998
Equivalent citations: 1998CRILJ2758
JUDGMENT S. Marimuthu, J.
1. The appellant, on the charge-sheet filed by Koduvally Police, faced a trial under Sections 323 and 354, I.P.C. and also under Section 3 (1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. To appreciate the case of both the prosecution as well as the contention of the appellant, the following facts are required. On 18-8-1993, PW 4 and PW 5, who are sisters, along with some other workers, were returning home after the day's work was over, in a bus, which was plying to Thiruvambady. While the bus was proceeding, the appellant had occupied a seat, intended for lady. Then PW 5 asked him to vacate the seat, so as to enable her to occupy the same. The appellant refused. Therefore, there arose a wordy quarrel, while the bus was proceeding. The bus was stopped at Omasseri bus stand, where PWs 4 and 5 got down. The appellant also got down from the bus. In the bus stand, the accused/appellant in continuation of the wordy quarrel inside the bus, gave a blow with his hand, on the back of PW 5. PW 4 intervened. She was also kicked by the appellant with his leg on her abdomen. Thereafter both PWs 4 and 5 were taken to Thiruvambady Police Station, where PW4 gave a complaint to the Head Constable, who registered a case under Section 323, I.P.C. and Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989. In the same bus, after the occurrence was over, the appellant also travelled.
2. After the case was registered, both PWs 4 and 5 were taken to the Primary Health Centre, Mukkom, where they were treated by the Doctor, examined as PW 2, who has issued Exts. P3 and P4 certificates. The Doctor, when examined both PWs 4 and 5, did not find any external injury, and however both PWs 4 and 5 complained of pain. Thereafter, the case was transferred to Koduvally Police Station, the Circle Inspector of which, took up the investigation.
3. After completing the investigation, he laid the charge-sheet before the Sessions Judge, Kozhikode.
4. Since the accused/appellant denied the charges framed against him, by the Sessions Judge, to establish the offences punishable under Sections 323 and 354, I.P.C. and also Section 3(1)(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989, the prosecution examined 13 witnesses and marked Ext. P1 to P 13. The Sessions Judge on assessing the evidence, found the appellant guilty under all the three Sections. Under each Section 323, and 354, I.P.C, he sentenced the appellant to undergo, simple imprisonment for three months. Under Section 3(1)(xi)of the S.C. & S.T. (Prevention of Atrocities) Act. 1989, he sentenced the appellant to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/-. That judgment of the Sessions Judge, who acted as a Special Judge, under the above said Act, is now challenged in this appeal. The only point is whether the prosecution has established the guilt of the appellant/accused beyond any shadow of doubt. It is a case of the prosecution that first there arose a wordy altercation between PW 5 and the appellant. To establish the wordy altercation in a running bus, the material witnesses are . the driver and the conductor of the bus. It appears that the driver was not cited as a witness. However, the conductor was cited and he has been examined as PW 8. Though he has turned hostile, he is not speaking of any incident or occurence inside the bus. As I pointed out above, to speak of the incident inside the bus, the material witnesses are the conductor and the driver. Even regarding the incident inside the bus, the other witnesses examined as PW 9 and PW 10 are also not rendering cogent and reliable evidence. In fact, PW 10 has totally denied any incident inside the bus. According to the version of PW4, the appellant first caught hold of the tuft of the PW5 and then gave a blow with his hand on her back. But it is not the version in Ext. P 6, the first information Statement to the Police. The occurence in the bus stand is a continuation of the incident inside the bus, while it was on wheels. When that incident inside the bus was not established by the prosecution, it can be rightly said that the fundamental aspect or the foundation of the prosecution is shaky. When that be automatic there arises a doubt in the mind of the Court as to the evidence then let in by the prosecution witnesses about the occurrence.
5. According to the prosecution, in the bus stand, the appellant first gave a blow with his hand on the back of PW 5. No doubt, it was spoken to by PW 5 herself. But PW 4, as pointed out above, gave a different version that the appellant first got hold of her tuft and then gave the blow. PW 4, according to the prosecution, intervened and then the appellant gave a kick with his. leg on her abdomen. On receipt of the kick, according to the evidence of PW 4, she became unconscious and she regained her consciousness only in the hospital. When the blow had been given with great force on her abdomen, so as to make her unconscious, naturally there ought to have been some sort of swelling of some visible injury or a change in the colour of skin. But, unfortunately the Doctor PW 2, did not find any swellinig or any sort of external injury on the abdomen of PW 4. According to the prosecution case, PW 4 herself gave the statement marked as Ext. P 6 in the Police Station. As pointed out above, PW 4 regained her consciousness after the ocurrence, only in the hospital. This version of PW 4 completely demolished the prosecution theory, even in respect of lodging complaint in the Police Station. Therefore, it can be rightly concluded that Ext. 6 (a) F.I.R. was not registered on the complaint of PW 4.
6. Coming to the occurrence once again, with regard to the assault on the back of PW5 and the kick on the abdomen of PW 4, there are no consistent evidence among themselves. In this regard, the eye-witnesses examined as PWs 9 and 10 are also rendering inconsistent and contradicttory versions and in many places, their evidence are self-contradictory. For, PW 4 would state that PW 5 got down from the bus by the front door of the bus and the appellant got down from the bus by the back door of the bus. But, at the same time, it is the version of PW 5 that both of them got down through the front door of the bus. Moreover, in a hurt case the medical evidence is an essential one. In the instant case, PW 2, the Doctor is not corroborating the evidence of PWs 4 and 5 in respect of the assault said to have been given by the appellant. The most important point in this case is with regard to the First Information Statement, about which there arises considerable amount of doubt. For, as pointed out, though it is the case of the prosecution that Ext. P 6 was lodged by the PW 4 it is disowned by her as stated above. The prosecution has not given any explanation as to the evidence of PW 4, with regard to her state of unconsciousness throughout, right from the place of occurrence till the hospital, where she was treated. Thus, to attract Sections 323 and 354, I.P.C. and to record conviction thereunder, there is no reliable and legal evidence. Further, both Section 354 I.P.C. and Section 3(1) (xi) of the S.C. & S.T. (Prevention of Atrocities) Act 1989 are relating outraging the modesty in this case. Hence fastening charge on the appellant under both the Sections is not correct. However as I have concluded that the offence under Section 354, I.P.C. is not made out. I will discuss the evidence with reference to Section 3 (1 )(xi) of the said Act also. So far as the charge under Section 3( 1 )(xi) of the S. C. & S.T. (Prevention of Atrocities) Act is concerned, the Act is stringent in punishment because it is touching the atrocities being caused on the people belonging to scheduled caste and scheduled tribes. No doubt, it is an enactment to weed out the atrocities being inflicted on the mind and body of a particular sect of people. At the same time, it is also to be borne in mind that there is scope for false implication in this Act due to previous enmity already prevalent on some other ground. Therefore, the Courts must cautiously carefully and thoroughly examine before fixing the criminal liability, because, when there is scope for false implication and where a minimum sentence has been prescribed under this Act. In the instant case, both the evidence of PW 4 and PW5 belonging to Scheduled Caste, do not attract Section 3(1 )(xi) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The Sessions Judge, in fact has not properly assessed the evidence to come to the conclusion for conviction. In short, the prosecution has not established the case under Sections 323, 354, I.P.C. as well as under Section 3(1)(xi) of the S.C. & S. T. (Prevention of Atrocities) Act. Hence, necessarily the benefit of doubt goes to the appellant and accordingly I hold that the prosecution has not established the case beyond all the reasonable doubt.
7. In the result, the appeal is allowed by reversing the conviction and sentence of the Sessions Judge and the appellant is acquitted. The fine amount, if any, he has paid, will be refunded to the appellant.