Karnataka High Court
Anishmiyan @ Mamusab vs The State Through Rural Police ... on 9 July, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.3693/2012
BETWEEN:
ANISHMIYAN S/O MEHEMOODMIYAN @ MAMUSAB
NOW AGED: 38 YEARS OCC: AGRICULTURE
R/O: GHODAMPALLI TQ & DIST: BIDAR.
.... APPELLANT
(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)
AND:
THE STATE THROUGH
RURAL POLICE STATION, BIDAR
TQ & DIST: BIDAR. ... RESPONDENT
(BY SRI GURURAJ V. HASILKAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374 (2) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO ALLOW
THE APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
15.11.2012 OF SPL. JUDGE AND ADDL. DIST. AND
SESSIONS JUDGE, BIDAR IN SPL.C.C. (SCS/STS)
NO.54/2012 AND ACQUIT THE APPELLANT HEREIN FOR
THE CHARGES FOR WHICH HE WAS CONVICTED.
THIS APPEAL HAVING BEEN HEARD, RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THIS COURT DELIVERED THE
FOLLOWING;
2
JUDGMENT
This appeal is arises out of judgment of conviction passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Spl. C.C. (SCs/STs) No.54/2012 dated 15.11.2012 whereby sentenced the accused to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months for the offence punishable under Sections 3 (1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short hereinafter referred as "SC and ST (PA) Act, 1989") and he further sentenced to undergo S.I. for one year and to pay fine of Rs.1,000/- in default S.I. for three months of the offence punishable under Section 325 of IPC. The sentences and in default sentences shall run concurrently.
02. Brief case of the prosecution is that, complainant-Ramanna is working as Gram-Sevak in Godampalli village Tq: Bidar. It is further case of the 3 prosecution that accused in this case was constructing the house without permission and illegally in Government land. It is further case of the prosecution that it is the duty of PW.1-Ramanna being Gram-Sevak to inform the higher officer, about anybody encroaching the government land for constructing house illegally. He found that accused-Anismiya has constructed the house at Sy.No.15 belonging to Government and he is also trying to sell the government land by taking money from others. So, in this regard he brought notice to his higher officer one Rajkumar i.e., PW.12-village accountant. This PW.12 had directed the accused to stop the construction work one-year back. In this regard the accused is having enmity and ill-will against complainant-PW.4.
03. It is further case of the prosecution that on 16.08.2012 at about 07.00 p.m. the accused was sitting below the Neem Tree near Hotel which is situated near 4 panchayat office. At that time accused came there with an intention to assault him and abused him by taking his caste that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla". He pushed the complainant on the ground and assaulted with hands. After that complainant returned to his house and went to Hospital at Bidar. On 17.08.2012 he lodged the complaint against the accused. Thereafter, the police recorded his statement and registered the complaint as per Ex.P.5.
04. PW.13-Namdev ASI who was Station House Officer of Bidar Rural Police Station received MLC report from the Government Hospital, Bidar at 4.00 p.m., as per Ex.P.4. Thereafter, he went to the hospital and recorded the statement of the complainant as per Ex.P.5 and registered a case in crime No.63/2012, sent FIR to 5 the Court and thereafter he handed over further investigation to Dy.S.P. Bidar.
05. PW.15-Jyoti Vaijanath-Dy.S.P. is the Investigating Officer. On 19-08-2012 he secured panchas and conducted the scene of offence panchnama as per Ex.P.6. He has recorded the further statement of the complainant-Ramanna. He sent his officials to search the accused. On 22-08-2012 he recorded the statement of witnesses Rajkumar, Rajeppa, Sharnappa, Ashok, Siddareddy and Maqsood. On 24- 08-2012 he arrested the accused and produced before the Court along with his report then he collected the wound certificate and also received caste certificate from the Tahasildar and also collected the scene of offence and map. After completing the investigation he filed the charge sheet against the accused for the offences punishable under Sections 504, 325 and 506 of Indian Penal Code and under Section 3 (1) (x) of the Scheduled 6 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
06. The Special Court took cognizance of offence thereafter furnishing the prosecution papers, charge was framed against the accused for the offences punishable under Sections 325 and 506 of Indian Penal Code and under Section 3(1) (x) of the SC and ST (PA) Act, 1989 only. The accused pleaded not guilty. Thereafter the case was posted for prosecution evidence. The prosecution in all examined 15 witnesses as PWs.1 to 15 and got marked 10 documents as per Exs.P.1 to Ex.P.10.
07. After recording evidence, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused has denied the incriminating evidence appearing against him. He has not chosen to lead defense evidence.
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08. After hearing both sides, learned Sessions Judge acquitted the accused for the offence punishable under section 506 of Indian Penal Code and convicted the accused for the offences punishable under Sections 3(1) (x) of the SC and ST (PA) Act, 1989 and under Section 325 of Indian Penal Code.
09. Aggrieved by the same, the appellant has preferred this appeal on the following grounds:
That the Judgment and order of sentence passed by the Trial Court is illegal, arbitrary and against the facts of the case. The evidence of prosecution is full of inconsistencies, discrepancies and contradictions and there is no prima-facie evidence to connect the appellant with the incident. Hence, the Judgment of the Trial Court has resulted in grave miscarriage of justice.
The FIR is fabricated and concocted. The entire Judgment of the Trial Court is warf and woof. The evidence of PW.4 has completely given go-bye to the 8 case set up by the investigating agency. The version put up by the complainant is contrary to his written complaint-Ex.P.5. The framing of charges under the provisions of the SC and ST (PA) Act, 1989, since the act being a Special Act, a special mens rea is required to for the commission of an offence under the Act and unless the acts complained of are out of and out of casteist attack, the charge is not tenable. The Judgment is passed on assumptions and surmises and conjectures.
The Judgment and order passed by the Trial Court is liable to be set aside.
10. I have heard Sri. Anil Kumar Navadagi learned counsel for appellant/accused and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for respondent-State.
11. Learned counsel for the appellant/accused argued mainly on four points viz., that there is a delay in lodging the complaint though according to 9 prosecution the incident has taken place on 16-08-2012 at 7.00 p.m., and the FIR came to be registered on 17- 08-2012. So, there is a delay in lodging the complaint, this delay has given rise to concoct the story and embellishment, that itself creates a doubt that is fatal to the prosecution case.
12. The second point is, according to the learned counsel for appellant though in the complaint the complainant has mentioned that the abuse and assault on him is not only by this accused, but also by the son of the accused, but he has given the name of this accused only, this creates doubt about theory of assault.
13. The third point regarding non production of x-report, learned counsel for the accused argued that the evidence of the Doctor regarding fracture to the right thumb cannot be believed as x-ray report is not produced before the Court. In support of his contention 10 he relied upon decision of Division Bench reported in Criminal Appeal No.530 of 2002 (A) dated: 03-03- 2010 2011 KCR 2759 State V/s Sheenappa Gowda and Others, wherein it is held as under:
"Criminal - Conviction - Sections 143, 147, 148, 447 and 324, 326 of Indian Penal Code, 1860, (IPC) - Sessions Judge confirmed order of conviction passed by trial court against Accused Nos.1 to 3 and 5 in respect of offences punishable under sections 143, 147, 148, 447, 324 of IPC and set aside finding of trial Court that, Accused Nos.1 to 3 and 5 were guilty of offence punishable under section 326 of IPC - Hence, this Appeal - whether prosecution had failed to prove that Accused Nos.1 to 3 and 5 had committed offence punishable under section 326 of IPC- Held, both trial Court and Appellate Court had concurrently accepted evidence of PW.s3 and 4, who were injured eye witnesses to incident- Nothing had been elicited in their cross-examination to disbelieve their evidence and their evidence was corroborated by 11 evidence of Doctor/PW.1 and wound certificates issued by him as per Exs. P1 and P2- Thus it was clear that prosecution had proved beyond reasonable doubt that Accused had committed offences as alleged against them and Assaulted PWs 3 and 4 and caused injury to them by forming an unlawful assembly, armed with deadly weapons and committed trespass into path way- However it was well settled that when prosecution alleged that grievous injury had been caused, it was necessary for prosecution to prove same beyond reasonable doubt - Thus unless prosecution produces X- ray for confirmation of fracture opined by Doctor on medical examination clinically, it could not be said that Accused have caused grievous injury of fracture - It was true that in cross-examination of PW.1, Accused had not disputed nature of injuries spoken to by PW.1
- Moreover same would not dispense with production X-ray by prosecution to prove beyond reasonable doubt that injured had sustained fracture of middle phalanx, which was an opinion given by PW.1 Doctor only on 12 clinical examination of PW.4 injured - Therefore finding of Sessions Judge holding that prosecution had failed to prove that Accused Nos.1 to 3 and 5 had committed offence punishable under section 326 of IPC and offence committed by them fall within ambit of section 324 of IPC was justified - Appeal partly allowed. Criminal - sections 324 and 149 of Indian Penal Code, 1860 (I.P.C.) - Whether both Courts below had justified sustained conviction of Respondents 1 and 3 herein for offence punishable under Section 324 of I.P.C. - Held, offence under Section 324 of I.P.C. was punishable with imprisonment of either description for term which might extend to three years or with fine or with both - Further having regard to fact that incident occurred on 30th April, 1993 and about nine years had elapsed prior to date of judgment of Sessions Judge 24th January, 2002, Sessions Judge had rightly held that it was not proper to sentence Accused to imprisonment at that stage - Therefore as on today since nearly 17 years had elapsed after incident, it would not be proper to 13 sentence Accused with corporal punishment of imprisonment - Hence having regard to nature of simple injuries sustained by PWs. 3 and 4 and other fact of case and situation bearing upon question of sentence, it would be appropriate to sentence Respondents 1 and 3 to pay fine and in default of payment of fine to undergo simple imprisonment for three months for offence punishable under Section 324 of I.P.C. r/w 149 of I.P.C. - Appeal partly allowed. Ratio Decidendi" Order of conviction shall be sustained, if prosecution proves his case beyond reasonable doubt."
14. Last point urged by the learned counsel for the appellant is that the Investigating Officer in the cadre of Dy. Superintendent of Police is required to be authorized as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. So, the entire investigation is vitiated as he is not authorized by the competent officer as required under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocity's) Rules, 1995. 14
15. As against this, learned High Court Government Pleader argued that the prosecution witnesses have supported the charge leveled against the accused. The independent witnesses have also supported the prosecution case. The incident has taken place at Ghodampalli Gram Panchayat on 16-08-2012 at 7.00 p.m., it is a remote village and it is 15 Kms away from Bidar city. May be due to non-availability of the transportation, the victim immediately could not come to the hospital. But, he went to the hospital at night i.e., early hours at 1.30 a.m. and it is the duty of the Doctors to send the information regarding medico legal case to the concerned police station, if there is any delay about the medico legal case or sending the report or there is any delay on the part of Investigating Officer that cannot be attributed to the prosecution case and the evidence of the victim injured cannot be disbelieved on that point the medical certificate is produced and it is not objected by the accused side, so mere non 15 production of x-ray report will not render the medical evidence as not admissible. On the other hand, the Doctor has given evidence. Regarding the Investigating Officer appointment that will not vitiate the investigation as the investigation has been done by Dy.S.P cadre officer as per Rule-7. In this case also the Investigating Officer is Dy.S.P cadre. So, the investigation does not vitiate. Further as the independent prosecution witnesses have supported the case and Investigating Officer is also examined. The Trial Court has rightly convicted the accused. Hence, the learned High Court Government Pleader prays to dismiss the appeal.
16. From the above material on record, the points that would arise for my consideration are as under:-
01. Whether prosecution has proved its case beyond all reasonable doubt that on 16.08.2012 at about 07.00 p.m. near Neem Tree near a Hotel at 16 Panchayat of Ghodampalli, the accused not being a member of SC/ST community and complainant being member of SC/ST community intentionally insulted or intimidates him using by abusing words that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla" to injured-PW.4 with an intention to humiliate him in a public place within a public view, thereby committed offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?
02. Whether prosecution has proved its case beyond all reasonable doubt on the above mentioned date, time and place the accused caused grievous hurt voluntarily hurt without being provoked and that hurt has been caused of any of described under Section 320 of Indian Penal Code?17
03. Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this Court?
17. On perusing of prosecution evidence it is evident that admittedly the accused belongs to Muslim community and the complainant belongs to SC community. Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under:-
Section 3. Punishment for offences of atrocities, (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.-
(i)....
(ii)....
(iii)....
(iv).....
(v)......
(vi).....
(vii)....
(viii)....
(ix)....
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.18
18. There is a decision of Hon'ble Supreme Court reported in AIR 2011 S.C. 1905 in the case of Asmathunnisa vs. State of A.P., the Hon'ble Supreme Court has considered the scope of Section 3 (1) (x) of the SC and ST (PA) Act, 1989 and held as under:-
"(A) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (343 of 1989), S.3 (1) (x) - Offences of atrocities - Expression "in any place within public view" occurring in S. 3 (1) (x) - Means that the public must view the person being insulted for which he must be present - No offence on allegations under said section gets attracted if person is not present.
(B) Criminal P.C. (2 of 1974) S. 482 - Inherent powers - To quash complaint - Abuse of process leading to injustice is brought to the notice of Court - Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute".19
19. Further the Hon'ble Supreme Court referred the decision reported in (2008) 12 SCC 531 equivalent (2008 AIR SCW 6901). The paragraph No.12 of the said judgment which reads as under:-
"12. Learned counsel for the appellant has also drawn our attention to a judgment of this Court Gorige Pentaiah vs. State of Andhra Padesh and others (2008) 12 SCC 531: (2008) AIR SCW 6901): The relevant paragraph of this judgment is as under:
"6... According to the basic ingredients of Section 3 (1) (x) of the Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated 20 with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law".
20. It is necessary that in order to constitute the accusation of an offence under Section 3 (1) (x) of the SC and ST (PA) Act, 1989 there must be an allegation that the accused has intentionally insulted or intimidates the complainant in a place which was within public view and such insult or intimidation was done with the intention to humiliate the complainant. There must be an intentional insult, intimidation with an intention to insult a member of Scheduled Castes and Scheduled Tribes by a non Scheduled Castes and Scheduled Tribes member. The insult must have been done in any place within the public view. The intention 21 to humiliate makes it abundantly clear that mens rea is an essential ingredient. If there is no proof of intentionally insult and humiliate the complainant, it cannot make offence under Section 3 (1) (x) of the the SC and ST (PA) Act, 1989. Simply, addressing a person by his caste without intention to insult or intimidate does not constitute an offence the said Section. Whether there was intent to insult or humiliate by using word will of course depend on context in which it was used.
21. In order to prove its case the prosecution has examined in all 15 witnesses as PWs.1 to 15. PW.4- Ramanna is the complainant. In his evidence he has stated that he belongs to Scheduled Caste Holiya Community and accused belongs to Muslim Community. He has stated that about one month prior to he giving evidence at about 7.00 p.m. he was taking Tea near the Neem Tree situated by the side of Hotel of Panchayat Katta at Ghodampalli village. Accused came 22 there and abused him by taking his caste as Holiya Sulemagana. Accused further kicked him and twisted his thumb of right hand and he sustained injuries.
22. It is further stated by PW.4-Ramanna- complainant that accused was constructing a house in government land and he has informed the same to the Village Accountant. He has brought the village accountant and shown the spot. The village accountant told the accused not to construct the house at the spot. So, for that reason accused assaulted him. The people who gathered there separated the scuffle. Sharanappa, Rajappa, Siddareddy, Prabhu and Ashok are present at the spot. Due to the said abuse of accused by taking his caste, he has humiliated and insulted him. Thereafter, he went to the Hospital and taken treatment. Police came to Hospital on the next day morning and recorded his statement. The complaint is marked as Ex.P.5. Then on next day the police came to the spot and prepared panchanama.
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23. In the cross-examination by accused, it is suggested that accused already constructed a house about two years back, the same is denied by the complainant. He further stated that one Maqsood is the owner of the said Hotel. When he was sitting near the Hotel the accused came there and owner of the Hotel saw the incident. It is suggested that, his caste is Christian and he did not belongs to Holiya Community, but he denied it. He has further stated that there are public in the Hotel at that time, but he could not say the names of the person inside the Hotel. After assault he went to the Hospital and police came on the next day morning. It is suggested that himself and village accountant were harassing the accused since one year, but he has denied it. It is suggested that to harass the accused he is deposing falsely before the Court, but he has denied it. It is suggested that he demanded money from the accused, when he failed to pay money, he has 24 filed false complaint against accused about abuse and assault, he has denied it. This is all his evidence.
24. It is evident that in Ex.P.5-complaint itself he has stated that this accused-Anismiya was warned by the village accountant PW.12-Rajkumar for trying to construct the house about one year back. So, for that reason the accused has got enmity with him. When complainant was sitting under the Neem Tree suddenly he assaulted the complainant and pushed him on the ground and assaulted all over the body. The incident has taken place on 16.08.2012 at about 07.00 p.m. He has stated in Ex.P.5 that the accused has abused the complainant by saying that "Holiya Sulemagane neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla" and assaulted him. Nowhere he has stated that any of these witnesses who are examined before the Court were present or tried to rescue the complainant. Even he has 25 not stated in Ex.P.5 that accused has intentionally insulted him to humiliate in a public view. The reason for the assault is regarding stopping the illegal construction alleged to have been started by the accused about one year back. So, why accused kept that enmity for about one year is not forthcoming. In Ex.P.5-compliant though PW.4-complainant has stated about the assault on him, but he never stated that accused intentionally insulted the complainant and humiliated him in a public view by taking his caste with an intention to humiliate him. Before the Court PW.4- Ramanna-complainant has simply given different version. He has stated that when he was sitting under Neem Tree near Hotel of Panchayat Katta, accused came there and abused him in filthy language stating that "Holiya Sulemagana" by taking his caste, kicked and twisted his right thumb and assaulted all over the body. So, according to him first accused has abused him. Here the words used as stated in Ex.P.5 are "Holiya 26 Sulemagane Neenu Hege Naukari Madutti Nanu Nodettene, Ninn Kai Kaal Muriyuttene Elladiddalli Nanu Turkanige Huttilla", but, all these words are not stated by him. He simply stated that accused abused stating that "Holiya Sulemagane". Only he has stated that he has abused him by his caste. But no other abusive words are stated to have been used by the accused or any threat stated by him as mentioned in Ex.P.5. Even he has stated that the accused has abused the complainant as he has stopped the construction work. So, the intention of the accused to insult or humiliate by taking his caste is not there, but according to PW.4- Ramanna because construction was stopped accused assaulted him. For the first time he has stated that the people were gathered there and separated the scuffle. But in Ex.P.5 he has stated that nobody came and separated the quarrel. It was also not stated that at about 07.00 p.m. whether there was light or not. Because in the month of August usually the sunset will 27 be between 06.30 to 06.40 p.m. and there will early darkness. Though he has stated in Ex.P.5 that his statement has been recorded by the police as per Ex.P.5 and Ex.P.5(a) is his signature. The complainant stated that he has not filed any written complaint. He has stated that the police have recorded his complaint. He could not state contents of his complaint. So, his evidence is contrary to the evidence of ASI-PW.13 who has received Ex.P.5.
25. ASI-PW.13-Namdev stated that on 17.08.2012 at about 04.00 p.m. he has received a MLC note from Government Hospital, Bidar. He went to the Hospital and the PW.4-Ramanna-Complainant has given written application, which is marked at Ex.P.5. But in the cross-examination he has stated that he has not recorded the statement of the complainant. So, this evidence creates doubt about variation of Ex.P.5 and also the evidence of PW.4-Ramanna-Complainant about the intentional insult and abused and assault by the 28 accused by taking his caste. But in the cross- examination he has admitted that accused had constructed a house in the government land. It was about one year back he had informed to village accountant. So, for one year back incident, now accused has abused him with his caste that is his case. He has stated that there was no talk between himself and accused before assault which is again contrary and inconsistent with the report of the complainant. As per Ex.P.5 the accused first abused and assaulted thereafter and threatened him. He has stated that he could not mention the name of the persons who were inside the Hotel. The Hotel owner is also inside the Hotel. There is no corroboration to his evidence by other witnesses.
26. PW.7-Maqsood said to be the person having Hotel in Ghodampalli. He has stated different version of abuse, which are not stated by PW.4-complainant either 29 in his complaint or in his oral evidence. This witness has stated that accused abused the complainant as "Sulemagane", "Chodimagane" and "Holiya Sulemagane", then he closed his Hotel. So, this type of abusive words are not at all stated by PW.4-complainant such as "Sulemagane" and "Chodimagane". This witness added some more words, which are not at all stated by PW.4-complainant or mentioned in Ex.P.5. Even he did not state about the threatening words or continued words or abuse after using words "Holiya Sulemagane"
as mentioned in Ex.P.5-complaint. This witness talk only in respect of abuse by the accused by taking caste.
No further word as mentioned in Ex.P.5-complaint is stated. He has stated time of incident was between 07.30 to 08.00 p.m. Definitely there must be darkness.
Whether there is light or not, is not stated by him. He has denied about the assault by the accused and not supported the prosecution case about assault. The prosecution has treated this witness as hostile witness 30 and cross-examined. In the cross-examination he has stated that complainant alone was sitting at the Katta.
He has also not stated about presence of any other witnesses at the time of incident. He clearly admitted that he was inside the Hotel at the time of incident. So, possibility of this witness seeing the incident or abuse does not arise at all. When he was inside the Hotel, then how he could hear such words at 07.30 p.m. or 08.00 p.m. darkness which are stated to have been used by accused is not forthcoming. It is not safe to believe his evidence about abuse by accused taking his caste with intentionally insult with an intention to humiliate this complaint by the accused. Why he has closed the Hotel immediately and went back to the house is not forthcoming. He has stated that he has not given statement before the police as per Ex.P.7. He has not seen any assault by accused. So, this type of evidence creates doubt about his presence.31
27. PW.8-Siddareddy another eyewitness for prosecution, has not supported the prosecution case was treated as hostile witness and cross-examination was made at length by prosecution, but nothing helpful to the prosecution case is elicited.
28. PW.9-Ashok is the coolie. Admittedly, he also belongs to complainant's caste and his ancestors and complainant ancestors are same. His evidence is contrary to evidence of PW.7-Maqsood. Because he has stated that other persons are also present at the Katta. He has stated that incident had taken place at about 07.00 to 07.30 p.m. when he was near the Hotel of Muslim at Panchayat at Ghodampalli. Why he has come there and why he was present there is not forthcoming. In the cross-examination he has stated that accused and complainant were quarreling with each other and accused abused as "Holiya Sulemagane" and both were abusing each other. So, according to him this 32 complainant-PW.4 also abused the accused and this accused also abused the complainant. The complainant abused him as only "Sulemagane". He has not stated any other abusive words as per Ex.P.5-written complaint. But only stated about abused by caste. In the cross-examination he has stated that both are quarreling with each other. The name of this witness is not mentioned in the complaint-Ex.P.5 nor mentioned by the Hotel owner. He has not stated, if at all he was present why he did not try to pacify the quarrel or tried to rescue the complainant, who admittedly belongs to his community and they are of same caste. Why he was simply watching this incident is not forthcoming. His conduct makes the prosecution case more doubtful. Why he was present there at the time of incident that to in the darkness?, how he has seen the incident in the darkness is not forthcoming. He being the chance witness, it is not safe to believe this witness regarding abusive words as stated by this witness. Even in the 33 examination-in-chief he has not stated where the complainant was sitting where the incident has taken place. Simply he has stated that on 16.08.2012 at about 07.30 p.m. when he was near Hotel of Muslim a Panchayat at Ghodampalli, the accused came there and abused the complainant saying that "Holiya Sulemagana". Where this complainant was sitting, where the incident has taken place, where was the Hotel and which place the abusive words or assault took place, nothing is forthcoming. So, scene of offence/place, itself is not stated by this witness. Therefore, it is not safe to believe the evidence of this witness about intentionally insult and causing humiliation to PW.4-compaliant by taking his caste and assault. His presence itself is doubtful.
29. Similarly, PW.10-Sharnappa has also given evidence. Admittedly, in the cross-examination he admits that he belongs to SC Holiya community and 34 complainant also belongs to SC Holiya community. In the examination-in-chief he has stated that accused belongs to Muslim caste and complainant belongs to SC Holiya community. He further stated that about a month back at about 07.30 p.m. when complainant was at panchayat near the Hotel of Maqsood, the accused abused the complainant as "Holiya Sulemagane" and assaulted with hands and caused fracture on his right thumb. Again it is not forthcoming why and how this witness came there. If at all it was 07.30 p.m. in darkness how he saw the incident. He has stated that the complainant was at panchayat near the Hotel. On the other hand it is case of PW.4-complainant that he was sitting under Neem Tree. So, this type of evidence shows that he is also chance witness. At 07.30 p.m. why he was present in that place is not forthcoming, what he was doing, why he was present, nothing is forthcoming. In the cross-examination he clearly admitted that he did not know any talks between 35 complainant and accused prior to the incident. Even he could not say the name of persons who were sitting at panchayat Katta. So, that itself creates a doubt about presence of this witness. It is suggested that he belong to complainant's caste and deposing falsely. He has also not stated about the abusive words as stated by complainant in his written complaint-Ex.P.5, which is given after long delay. Simply, these witnesses have stated that accused abused as "Holiya Sulemagane". That is not the only case of prosecution, there are other words of abuse threat on him and he has used threatening words as per Ex.P.5. Not a single word of threat is said to have been given by accused is stated, except stating that accused abused by taking caste of PW.4-Complainant. It is not safe to believe his evidence. Because, he has not stated the name of any of witnesses who were stated to be present at the time of incident nor he has stated that he tried to pacify the quarrel. What he was doing, why he was standing, why he was 36 watching the incident is not forthcoming. It is not safe to believe his evidence.
30. PW.11-Rajappa is another witness. He has stated in his evidence that about 07.00 to 08.00 p.m. prior one month of he giving evidence, he was sitting on Katta near the Temple and accused abused the complainant as "Holiya Sulemagane" and assaulted the complainant with hands and caused fracture on his thumb and PW.11 went back to his house. He never stated the scene of offence as near any Hotel where incident has taken place as per prosecution. He has not stated as to why he was sitting at Temple Katta is not forthcoming. But there is no Temple either in the scene of offence sketch map or any witnesses stated about any Temple. Even abusive words as stated in Ex.P.5- Complaiant is not forthcoming. How he was watching the incident is not forthcoming and why he returned to his house is also not forthcoming. He did not know 37 whether any other persons tried to pacify the quarrel. In the cross-examination he stated that distance between Temple Katta and Panchayat Katta is about 60 to 70 feet. Only he has heard the abusive language. So, that means he was for away i.e., 70 feet away from panchayat Katta. He never stated about Neem Tree or any Hotel. So, that Temple Katta is not at all stated by any of the witnesses. This type of evidence of PW.11 creates doubt about his presence. It clearly indicates that it is not safe to believe his evidence.
31. PW.12-Rajkumar is Village Accountant in his evidence he has clearly stated that on 17.08.2012 the son of the complainant told him that accused assaulted his father and abused him in filthy language. Thereafter he saw the complainant is having fracture on his right thumb. He enquired the complainant-Ramanna and he has narrated the incident. The complainant told that as they have stopped the construction of the house of the 38 accused on the information of the complainant, that is why the accused assaulted him. He never stated that complainant told before him that accused abused him by taking his caste as "Holiya Sulemagane" intentionally insulted or humiliated him as stated by other witnesses. Of course he has not seen the incident. He has stated that he has asked accused to stop the construction work about 06 months back. So, his evidence also does not corroborate to abusive words as used by accused and stated by other witnesses, thereby creates doubt about prosecution allegations for the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
32. There is a delay in lodging the complaint. The incident though has taken place on 16.08.2012 at about 07.00 p.m. The FIR was registered on 17.08.2012 at 17.30 p.m. As per the evidence of PW.4 the FIR is given to the Spl. Judge on 17.08.2012 at about 10.30 39 p.m. There is also endorsement as per Ex.P.9 in this regard. So, there is more than 24 hours delay in sending FIR to the Court. Names of none of the witnesses were mentioned in the complaint-Ex.P.5, which was at earliest point of time. The abusive words stated by the complainant by taking his caste with an intention to humiliate him are inconsistent with words mentioned in Ex.P.5-complainant, which is filed after long laps of time, which itself is doubtful.
33. The presence of other witnesses at the time of incident itself is doubtful. The abusive words stated by the witnesses do not indicate that he used word giving threat by accused as mentioned in Ex.P.5. It appears stereo type or parrot like story stated by all witnesses only taking his caste as "Holiya Sulemagane". The presence of these witnesses itself is doubtful at the time of incident.
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34. The pancha witness-PW.6-Prabhu has stated that panchanama is already prepared before he arrived at the spot and also stated that only police taken his signature. He did not know contents of the mahazar.
35. PW.5-Ramesh has also stated that the police have told him that the galata took place in the spot and shown the spot and prepared panchanama and he has signed in the panchanama. He never stated the presence of anybody at the time of panchanama.
36. On the other hand, Ex.P.6 spot panchanama clearly indicates that complainant himself was present and shown the scene of offence/place. But presence of complainant is not stated by the panchas. So, spot panchanama was drawn after two days of the incident. So, it may be that there was quarrel between them. It appears that complainant tried to make out a case of abuse by the accused by taking his caste. It is admitted, by complainant that there is ill-will against him and accused was having grudge over the complainant as he 41 had informed the village accountant about the accused constructing house at government place. The village accountant has also supported the complainant. But the possibility of this complaint taking advantage of his caste and trying to implicate the accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and assault also cannot be ruled out.
37. None of the witnesses have stated about threatening words used by the accused. There is darkness the prosecution have not explained how those witnesses have seen the incident. It is not safe to believe their evidence regarding intentional insult and abuse or assault by the accused by taking his caste with an intention to humiliate him within a public view cannot be accepted at all.
38. In fact since complainant and other witnesses admitted that the complainant belongs to 42 Scheduled Caste community, but there is no evidence has been placed before the Court to show that the complainant belongs to Scheduled Caste community. Because, Tahasildar has stated that he has given report on the basis of report of the revenue inspector. But no such revenue report or caste certificate is produced before the Court. No notification has been produced to show the caste of the accused and complainant. But accused admitted in the cross-examination that PW.4 belongs to Scheduled Caste community and other witnesses they are also belongs to Scheduled Caste community. So, from that cross-examination it may be inferred that the complainant also belongs to Scheduled Caste community. Exact Scheduled Caste cannot be made out. Otherwise, there was no legally admissible evidence in this regard. But anyway, it appears that this witness try to make out a case by making allegation under atrocities act which is not proved by the prosecution. Therefore, it is not safe to believe the 43 evidence in this regard about offence under Section 3 (1)
(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
39. Regarding offence punishable under Section 325 of IPC it is evident that the evidence of PW.4- Injured-Ramanna is to be considered in the light of admitted fact that the accused has ill-will against the complaint. PW.4-Ramanna has stated in his evidence that the accused when he was sitting under Neem Tree near Hotel the accused came there and abused him and twisted his right thumb and assaulted him and kicked him. But in his complaint-Ex.P.5 he has stated that the accused and his son came there when he was sitting near Neem Tree near Hotel and assaulted the complainant and pushed him on the ground by abusing threatened him and hit him. So, he lodged the complaint against this accused and his son. Of course accused son name is not mentioned. Subsequently, son of the accused was dropped. In Ex.P.6 i.e., spot 44 panchanama dated 19.08.2012 the scene of offence which is shown by the complainant-Ramanna, wherein it is mentioned that at that time this accused-Anismiya and his son Saddam both came there and abused and assaulted and caused internal injuries. So, nowhere either in Ex.P.-5-complaint or in Ex.P.6-spot panchanama which is said to be reported on 19.08.2012 there is nothing about the causing of any fracture. But it is only mentioned caused simple hurt.
40. PW.3-Dr. Prashant is the medical officer Government Hospital, at Bidar. He stated on 17.08.2012 at about 01.32 a.m. night Ramanna- complainant came to the Hospital with a history of assault and he has examined him and found following injuries;-
i) Contusion over right thumb base 1 x 1 cm.
After x-ray it is detected that dislocation of terminal interphalageal joint right thumb and
ii) Abrasion over right knee joint measuring 1 x 1 cm.
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41. The doctor opined that injury No.1 is grievous in nature and injury No.2 is simple in nature. He has issued the wound certificate and the same is marked as per Ex.P.3. Injuries are within 05 hours and they are fresh. There is fist of thumb, injury No.1 can be caused with quarrel and by kicking injury No.2 can be caused. The MLC report is marked as per Ex.P.4.
42. The Doctor has issued the wound certificate as per ExP.3 on 23.08.2012 and same is received by PW.13-ASI-Namdev on 25.08.2012. Of course date of x- ray is also not mentioned in Ex.P.3. Learned counsel for the accused-appellant stated that x-ray is not produced. Even in the MLC report as per Ex.P.4 there is nothing about the fracture.
43. The contents of Ex.P.5 which is filed after long delay does not contain any fracture to PW.4- Ramanna. Further, regarding fracture what is the treatment he has taken is not forthcoming. No medical 46 records were produced before the Trial Court to show the nature of treatment taken by this injured. The Doctor in his examination-in-chief stated that the injury No.1 can be caused with quarrel. The doctor has not stated that by twisting the hands, such injury can be caused. So, in his examination-in-chief no suggestion is made whether twisting the right hand thumb such injury could be caused. The doctor is of the opinion that injuries can be caused in quarrel cannot be believed at all. Because, in what type of quarrel such injuries can be caused must be stated by the doctor. Nothing has been stated regarding the injury sustained by the injured by twisting right hand thumb by this accused. So, the second injury is abrasion over right knee joint. The doctor stated that by kicking the injury No.2 can be caused. The oral evidence does not corroborate with the theory of assault as stated by doctor. As per Ex.P.5, none of the witnesses stated about kicking by the accused to the complainant. The doctor has stated that 47 injury No.2 is simple in nature. The doctor has not stated that such injuries can be caused if a person was pushed on the ground and assaulted. How such injury caused by kicking is not forthcoming. It is not the case of prosecution that accused kicked the complainant and caused that injury. Therefore, oral and documentary evidence are inconsistent with medical evidence.
44. PW.7-Maqsood who is having Hotel has stated that he has not seen any assault or twist of right hand thumb. The prosecution has treated him as hostile. Nothing is elicited from him about the twisting of right hand thumb nor did he pacify the quarrel. Even he has no complain about the injury.
45. PW.8-Siddaraya who is eyewitness is also not supported the evidence with regard to twist of right hand thumb or causing any injuries.
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46. PW.9-Ashok has also not stated about that accused has twisted the thumb of right hand of the complainant. Simply, in the cross-examination he stated that both accused and complainant are abusing each other. So, that means even complainant also abusing and quarreling with accused. Simply, he has stated that his right thumb was broken, which cannot be believed. How can he say that the thumb of the right hand was broken, is not forthcoming.
47. PW.10-Sharnappa is another witness whose evidence is not believable. He has stated about the assault by accused to the complainant and he assaulted on his right hand thumb. How can he ascertain the fracture was caused, is not forthcoming. The accused has abused the complainant's caste and his presence itself is doubtful. He has stated that the police have not enquired him.
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48. PW.11-Rajappa has stated that he was sitting near the Temple of Katta. He has stated that accused assaulted the complainant with his hands and complainant sustained fracture and he went to his house. So, how the complainant has sustained fracture is not stated or twisting by his thumb, is not stated by this witness.
49. PW.12-Rajkumar-Village Accountant is only hearsay witness. Though he is a village accountant, he has not stated anything about the abusive words. The complainant's son informed him on the next day about the incident. He has also not stated because of assault by this accused, the complainant has sustained injuries.
50. As already stated if at all the complainant sustained injuries or fracture, he could not have kept quiet for such long time. Here already as discussed above, there is inconsistency in the oral evidence of 50 PW.4 and Ex.P.5-complaint regarding contents of Ex.P.5 and nature of assault. Though complainant all along contended that it is accused and his son both came and assaulted him, but son of the accused was left out for the reason known to Investigating Officer and complainant.
51. Though as per the prosecution documents the panchanama was drawn on 09.08.2012 the name of son of the accused appears as Saddam, but nothing has been stated by this witness. He has stated that accused suddenly assaulted and pushed him on the ground and assaulted all over his body. But there are no hurt or pain anywhere in the body. If he had fallen on the ground, there should be some injuries on his back. None of the witnesses has stated that this accused pushed the complainant on the ground.
52. Since, FIR has been lodged after long time of the incident, in view of the enmity and ill-will it is not 51 safe to believe uncorroborated evidence of PW.4. Because, theory of assault as stated by him is inconsistent with the contents of Ex.P.5-complaint. Both of them abused and there is possibility of fall on the ground and due to fall there is possibility that complainant may be sustained serious injuries. But it is not safe to believe the evidence of PW.5-Ramesh regarding this accused caused fracture by twisting his hands. The evidence of prosecution in this regard is doubtful and particularly in view of the delay of more than 24 hours in sending FIR to the Court, it creates further doubt.
53. PW.4-Ramanna-Complainant is not a uneducated person and he is the Gram-Sevak. In fact he met the village accountant on the next day. In spite of that the complaint came to be registered only in the evening at 05.30 p.m. nearly after 22 hours of the incident. It reached to the learned Magistrate only after 24 hours after the incident.
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54. Whenever there is ill-will or enmity Court is to consider the prosecution witnesses evidence carefully. Admittedly, in this case according to PW.4 this accused is having ill-will against the complainant. According to the complainant he has informed about the construction of house to the village accountant about one year back. So, complainant himself stated that he is not in good terms with the accused. Therefore, his evidence is to be considered as interested witness. Accused is having ill-will against him, as the complainant informed about the encroachment of government land to the village accountant. But there are no records in this regard. There may be some quarrel taken place between the accused and complainant. But it is not like so as alleged by the prosecution. There is lot of difference between must be true and may be true. If there are two views possible then the view favourable to the accused is to be accepted. The ill-will is like a double edged weapon it 53 cuts either way. So, when the complainant or accused are having ill-will their evidence will have to be scrutinized carefully. There are material contradiction and inconsistency in the evidence of prosecution witnesses about the material particulars. In my opinion very presence of eyewitnesses is doubtful. The theory of oral evidence about the threat and twisting of right- hand thumb does not corroborate with the medical evidence. In view of the unexplained and abnormal delay in lodging the complaint, the evidence of prosecution suffers from inherent improbabilities.
55. In the light of the principles stated by the Apex Court in the decision referred above if the evidence of prosecution is considered, then it is evident that somehow complainant wants to implicate the accused. But prosecution failed to prove the same by legally admissible evidence. Therefore, possibility of complainant sustaining any such fracture, is not due to 54 incident but it may be for some other reason and some other place. Therefore, as the evidence of prosecution witnesses creates doubt in the mind of the Court, the accused is entitled for the benefit of doubt.
56. However, learned Sessions Judge misdirected himself in believing the prosecution witnesses about the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is totally inconsistent and contradiction in the evidence of prosecution about the exact words of abused by the accused when compared to statement of complainant i.e., Ex.P.5, which itself is filed after long time of delay which is not satisfactorily explained. It is fatal to the case of prosecution case.
57. The learned Sessions Judge has not appreciated the evidence of prosecution in a proper prospective. The learned Sessions Judge has not 55 assigned the proper reasons regarding long delay in lodging FIR. The learned Sessions Judge has not considered the inconsistency about the assault as per medical evidence. The learned Sessions Judge has not given any reasons as to how these witnesses were present at the time of alleged incident. The learned Sessions Judge has not given proper reasons for believing the chance witnesses, whose names were not mentioned in complaint-Ex.P.5. The learned Sessions Judge has not appreciated the evidence of prosecution witnesses in the light of the settled principles regarding appreciation of evidence cases and as per the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also in considering the theory of assault.
58. If the evidence of prosecution is considered then in my considered view the charges that accused intentionally insulted or intimidated with an intention to 56 humiliate the complainant knowing that he belongs to Scheduled Caste community within a public view, is not forthcoming. The prosecution has failed to prove that intentional insult or intentional to humiliation to this complainant by the accused taking his caste. So, the order passed by the learned Sessions Judge needs interference. Accordingly, points No.1 and 2 are answered in the Negative and point No.3 is answered in the Affirmative.
59. For the reasons stated above, I proceed to pass the following...
ORDER The appeal is allowed.
The judgment of conviction and sentence passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Special C.C. (SCs/STc) No.54 of 2012 dated 15.11.2012, is hereby set-aside. 57
The appellant-accused by name Anishmiyan s/o Mehemoodmiyan @ Mamusab is hereby acquitted of the offence punishable under Sections 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and also of the offence punishable under Section 325 of Indian Penal Code.
The bail bond of the accused and the bond executed by the surety, if any, is hereby cancelled.
The amount of fine if any is already deposited, the same is ordered to be refunded to the accused- appellant.
Send back the records of the Trial Court forthwith.
Sd/-
JUDGE KJJ/MNS