Karnataka High Court
Maheshwarappa @ Maheshi vs State Of Karnataka By Channagiri P S on 27 October, 2010
Author: N.Ananda
Bench: N.Ananda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27'?" DAY OF OCTOBER 2010 BEFORE 1.
THE) HONBLE MRJUSTICE N.ANA1$:II)A.¢' "
CRIMINAL APPEAL No.1369/20'e{; A _E_3__E_'§__W_E_E_1\£ Maheshwarappa @ Maheshi A 8/0 Hosurappa Aged 33 Years Agriculturist R/at Bulasagara v'i2'iiw1'age';AA'""V_ 'IO; Channagiri Taiuk. ' --
H.Lakshmgf1a,_ @ 1:;gi1§sh:;;a§p«;§a.%_ O' 3/0 .
Aged 37 =Y'evars";._Agr11..A ' R/at Bu1.aSag'a_ra.OV'iEiéige', ' Channagiri ' --~ ., O" " 2 }3..H.Rarnappa7'@ RafneSh .~§3~/0OAH0sura'ppVa _ V" "Agéd 239. 'Years ,mAgri.
* OR/vat'~Bu1tasagara Village, C'i1?Hm'agiri~~~Ta1uk.
."~«._H0sL1rai;)pa 8/ 0 Thimmappa L Aged' 68 Years 'Agricuiturist
-R/at Bulasagara Vii., Channagiri Taiuk.
Smt.Lakkamma W/0 Hosurappa Aged 63 Years R/at Buiasagara Viilage, Charmagiri Tluk
6. Kum.B.H.Shaila S/o Hosurappa Aged 23 Years R/at Balasagara Village, Channagiri Taluk. p {By Sri.Y.S.Shivaprasad, Adv.) AND:
State of Karnataka By Channagiri RS. * g [By Sri Vij ayakumar Maj age," -- . _ This Crl..A is fil-cc£.j'11nde~r 'Se-_cti'e;ri 374(2) Cr.P.C against the Jiu'-dgment dated *06.lQ9,,2Q0A4i passed by The District andl'..,Se{ssio11s«Judge, Eavanagere in Spl.SC/ST Case No.46/{.02}, "'c'o.nvic'ti.ngV..appelIar1ts--accused for the offences "pu:n_isliabl.Ve"undvervsections 147, 323, 324 and 5fO6llr'/W5. section lPC"and under section 3[l][x] and 3v(1)(_x'i} Vof/S'i"={_P;A]' Act and sentencing them to undergo 53.1. and to pay fine of Rs.250/»*, in default to undergo for 10 days for an offence punishable" under section 147 IPC sentencing them to undergo S.I. fo-r6 months and to pay fine of Rs.200/--, in"'e--defaultyto undergo SI. for 10 days for an offence » punishablepgunder section 323 IPC, sentencing them to u.r_1dergo.._yS.I;e-.fo~r 1 year and to pay fine of RS.3O0/W, in 'default ' to. undergo SI. for 1 month for an offence pu.nish..ab_le»' under section 324 IPC sentencing them to undergo RI. for 1 year and to pay fine of RS600/~, in default..."to undergo SI. for 2 months for an offence ff punishable under section 506 part--II r/w section 149 lP»C..*and sentencing them to undergo S.I. for 6 months and to pay fine of Rs.5O0/W, in default to undergo S.I. ....-for 1 month for an offence punishable under section 3[1}[X) of SC/ST[PA) Act and further sentencing them to undergo RI. for 1 year and to pay fine of Rs.1,000/--, in default to undergo S.I. for 2 months for an offence punishable under section 3[l](xi) of SC / ST (PA) Act. All the sentences shall run concurrently with one another, This appeal coming on for hearing this day, the Court delivered the following:
JUDGMENT' The appellants No.1 to 6 were arrayed;"aS" _ No.1 to 6 in Sp1.C.C.No.46/2001 on Judge, Davangere. They "7€lT§ tried, and sentenced for offences pur1Vis«hable*-under=Set§tions_}14'f,,:* 323, 324, 506 1.p.c., and atg'ol i1c:porfé:l«¢¢s ptinishable under Sections 3 of the SC/ST (Prevention of Atrocities} Plot; short 'the Act') There:tore.'_'thley this appeal.
2;' have«Vheafti«..:':pv"Sfi.Y.S.Shivaprasad «~»~ learned counsel. appellants«accL1sed and Sri.Vijaykurnar leatjned Clovernment Pleader for the State. :I"_nv_ the case of prosecution is as fo11oWs:-- Tfieleaecused No.1 to 3 and 6 are the Children of 3 aCC.nsed.No.4 and 5. They are residents of Bhulasagara lkfilllage, Channagiri Taluk. They belong to Uppara caste.
--~ A.K.Rangappa is the husband of PW.2 w~ Shanthamma. PW.4~« Neelappa is the br0ther__,:of PW.l. 4 \ "K :3".
,5--\; CL» iPW.6 M Ningappa is also the brother of PW.l. PW.7 W Nagendrappa is related to PW. 1. The father of PW:-1 had two wives. Through his first wife. he had a name Lakkavva. He had purchased the land 4 acre 30 guntas in the name she was not married. _She l'was_.gettj1;g"~vtl1e cultivated through accusedll'-anzd. she W.as'-alsol"'staying in' the house of this family members had taken. there were quarrels betwieeii parties 'regarding possession and cultixjfation' 0 th aidland.
4. 4:
7-." »l9'9_'7«at---abo.ut 8.80 a.m., accused No.1 to 6 formed unlayVfull:aslsembl.y in front of the house of
-2 A.K.lRa._ngapf)a and in furtherance of common .A objjectj unlawful assembly. they used criminal ~fo'rce an offence of rioting. Accused No.1. toll.""8. 'ltno\kl1ng fully well that PWs.I & 2 belong to "schedule caste, abused them by taking the name of caste in public with a View to insult them. In V lvlllfurtherancre of the common object of unlawful assembly, accused No.4 to 6 pulled the saree of PVVI2 »:
§'\'; \$n.
Shantharnma with an intention to dishonour or outrage her madesty and also bet. and kicked her. Thegfefore, the accused committed an offence punishable Section 3 (1) [X] [xi] SC/ST (Prevention offktjlriocvitiesl In the course of same transaction"and t'uftheranC,e bf ' commission of object of unla\2{iful--.'aSsernh.ly=c ac:;us'ect_ No.1 to 3 assaulted and and Voluntarily caused h.u"1"t=. and they also assaulted PW.l with cart committed an offence punishable ijun€dé..:- ~séetiQ1j§:'Vj'323 1.13.0. The aecusedlllalsbfheld'JOutvthreatswts the lives of PWs.l and 2 and'cQn1.mittetiA:_i;an"'silence punishable under Section 505 ape. ' Durin§'ti'ie"c0urse of trial, PWs.l to 14 were documents as per E3x.P1 to P8 were marked .. l " 'T ~. g_The defence of accused was one of total denial.
A l'he~«_.accused have denied that PWs.l and 2 belong to Schedule Caste. 5"\:= .:.'é<"'~ x if-*2 »«7ii~~.=«
7. The learned Trial Judge on appreciation of evidence and on hearing learned counsels for both parties, convicted accused for the aforesaid offencfesl; In View of the conviction of accused, foilhowiiig points would arise for determination ':- l
1) Whether the prosecution?' 771997 at about 8v'i3G_a.rn;,.. ;ac¢us'§3d'..,1i\1Q.m1jtgi 5,} had formed unlawful criminal force thereby .co,rr1mi't'tedroffence" punishable under Section 2] has proved that accused 1* to'.§"l'i1i.:ifurtherance of common object of _unlawlfu1,asseI_nbly, knowing full well that PWs.l va_indv2 belor1_gHt,o Schedule Caste, abused them by name of their caste Within public vision atn:.:*intention to humiliate them and in the of same transaction, accused No. 4 to 6 l ..pulled the saree of PW.2 with an intention to dishonour or outrage her modesty thereby, accused No.1 to 6 have committed an offence punishable under Section 3 (1) (X) and 3 (1) [xi] of SC/ST (Prevention of Atrocities} Act r/W Section 149 i.P.C. :2 W M 3] Whether the prosecution has proved in the course of same transaction, accused No.1 to 3 assaulted PW.1 and accused No.2 to 6 assaulted PWi,'2"--.with a cartpeg thereby, accused con1n1itted":lo'f-fences punishable under Sections 823 and section 149 IPC ?
4) Whether the prosecution:'»has'~proved-.tl1at"liI1A course of same transaction".._ accused5Athreat'en'ed_"', PW.1 and 2 with direleonsequencesu to their lives thereby accusedpcomrniittjed an offence. punishable under Section See' yr/wp 1:49 -2 5] Whetherfihe has properly record '.9 6} W1iQlh,€F' judgment calls for
- interfer¢hcev"?
"order '.9 'Bvelfore adverting to the oral evidence of PW's.1 toyp is necessary to consider the documentary 'evidence adduced by the prosecution in proof of the
-»-elaste of PW1 and PW2. The prosecution has produced the document as per E1x.P7', which is not a caste certificate, but it is a reply sent by the Tahsiidar' {CW.16 it ~§1v~5é-
3..\; 4
-- B.S.'I'alwar) of Channagiri Taiuk. CW. 16 -- B.S.'};'alwar was not examined before the Trial Court. The doctiment as per EXP'? does not fall under Section Therefore. the document cannot be read' evidence. The examination of C.WA.1_6' fcaéste PW's.1 and 2 and production orcaéteii ce1"t_ificate manner known to law was atjsoluteiy.neceVssar\fto prove"
the caste of PW} and..PW2A.-more 'partict11ar13r.-arhen the accused have denied' -2 belong to a schedule caste.' adduced by prose:-;ci'1htViVo11..irlivs safficient to prove offences punishabie 3 (1) (X) and 3 [1] (Xi) of the Act._. _v .
FromAthe....eVidence of PWs.1 to 6, I find that iirjroof of offences under sections 323, 324, 'i_isr:incredib1e and inconsistent. Accused No.5 is thevimother of accused No.6 -- Kurnshyiaja. At the time, Kun1.Shylaja was aged about 16 years and her mother Lakshmamrna [accused no.5} was aged X:
A ;'
3.\i \~ k {Li "'L[£1'\-..' about 50 years.
l0. PWs.l. 2 and 4 have deposed that accused No.1 to 6 pulled the Saree of PW.2. This evidence looks improbable for two reasons. Accused No.1 to Eitogeither could have pulled the saree of improbable as accused No.5 and,"6_who_--'are=§vorf1'er1.Vha_d""
attempted or used criminal lforcfe .. outrage the modesty of V l _ V ' V is V l PW.5 has not Vnniorolsecution. PW.7 has deposed 6 pulled the saree of This improbable.
Accused._NoV;5l'».an:di women. Therefore, it looks ridiculous that' accu»s.e"c} 'No.5 and 6 had intention to dislionoiir ornloultrage the modesty of PW.2. Before adverting to the evidence of prosecution witnesses";infproof of offences under sections 323, 324, 506 1.'/llV'«[ section l49 IPC, it is necessary to state that and 2 and their family members had grievance against accused No.1 who was cultivating the land "downed by Lakkavva {elder sister of PW.l). She was staying in the house of accused No.1. These facts are 3\s ».. .«:"3"'x 'M's-C%;x* deposed by PW. I. It is also in the evidence of PW1 that accused No.4 had lodged a complaint against that PW.1 and his family members had been warned police not to enter the land held by Lakkawja in the'possession of accused. ,~I:o._4the." cii9c'ufmsta_neei'sV, it evidence of PW's 2 and 4 that the house of PW.1 and piciied-.up ci;.i1a__1"1*elVglVw:ith;Vhin'i"jw"ith"' V regard to possession.' of Vt-he."gaforestatleciv-..lahd looks improbable. PW's.;i that accused No.1 and hisgvfailnily 1if1enib'ers.x5ve';feV in "possession of land belonging " , _v the Circumstances, the evider1.ce'-- of that family members of accused ..No.1 lcaIne"riea_1_f"the house of PW.1 and picked up gguarre4l"'with,..PW'v1 looks improbable. On the other ha.'rI§:i, l.ooks'.""p1'.Qbably PW.1 and 2 who had grudge . against 'Aacciused No.1 and his family members for being and cultivation of land belonging to concocted a story to lodge a false case against}..accu.sed No.1 and his family members, with a it View dispossess them from the land owned by l"I.,akl?:a\Wa. 3/\i t 5"' '""'€*"
PW.1 has deposed that the first accused assauited him with a ciub and the accused abused his} as "Madiga Sulemagane".
PW.2 has deposed that accused assa_ufl'£:ed with. a cart peg.
PW.4 has gone a step further toggdepose accused dragged PW's.1 and"'2:from hiSV_house'§'.:which is not the case of proseedution PW.6 has deposed_"thsat" 'abused PW's.1 and 'of their caste. They had assaulted sI?VVTVs.x1 PW6 was not a witness for the occu;rrei'xce.
deposed that accused No.1 to 6 tre'spas_seddA.71hto the house of PW's 1 and 2 and pulled of their house. Accused No.1 abused PW.2 as '-7f_I*iada1'agithi". Accused No.5 and 6 pulled the saree of PW.'7 has given altogether a different version, even otherwise, he was deCIareci as a hostiie witness. ;"\f%, 1-5 Lu:?{ ...
PW. 11 is related to PW. 1. PW.l1 has deposed that accused picked up quarrel with PW.1 regarding possession of land held by Lakkavva. demanding PW.l to give up the land a1'}.f;'l:--- telling that he will not give up the .landj.lh allll the accused surrounded PW's.;l; ':2 them. Accused No.6 pu11ed.,l:tia.¢ sate? ofu~PW.11=7 was also declared as ,a hostile ljfiwitriess. l'l1€. Evidence of PW1l that accused hlad.cgoi1.ef':'r2:lealr 'house of PW} to demand to part' with:jdossessjioifgpf of Lakkavva is contrarv"ltoc* of » .l5W1. _ V PW. 10 is all-§g.ed'»»h ave witnessed the occurrence. He has not "stated'-- aljout the assault. He appears to be a l -. pos«tl'oe"currence Witness. 1 1'"2.,_AlFrosrn_j..the evidence of above witnesses, We find that no consistency in their evidence. The entire vinlcident is distorted. The evidence of F~'W's.4» and accused No.6 pulled the same of PW.2 with an ..._inteni:ion to dishonour or ouiirage her modesty is ridiculous. Even with regard to words uttered by 5"\) "X *~- 57* accused to insult PW's.1 and 2 by taking the name of their caste is ridiculous. Added to this, the Inedical evidence of PW.9 does not support the egrea/fit.ness account of incident. PW.9 we Medicai Officer of Channagiri_.ha.s cienovsletiy' on 7.7.1997 at about 4.15 p.m., Pxivfs hospital. PW9 examined and 'fot1nd"~.ll'oi'1oiwingl"V injuries:
1) Abrasion beneatl'1'th'e
2) Complaint of pgfii' ia:;m. :sfir£er1ln§. behind the head . _' » Q examined PW.1 --
Ranggiappa anti. the following injuries:
(_vfoni:tisivon on the left fore arm 3 C,on.tVus;ion on the neck ' of pain on the back
4) ..Cc-intlusion on the left thigh lll"~,However, PW.9 has not given the dimension of injuries. PW's.1 and 2 and other eyewitnesses have deposed that accused No.1 to 6 had assaulted PW1 and PW2 with a club and cart peg however, we do not find «F 5! axi 1;" ,é'5''\. \.
corresponding injuries on PW} and PW2. Added to this. there vvas inordinate delay in lodging the con'1pla,int. The occurrence took place on _ 8.30 am. The jurisdictional police «at distance of 10 Kms from the place of .inciedent";- information was lodged atab-out for which there is noV'_satisfa_cto1fy less the explanation. 1 d
13. Thuei __On re' V.oi»"'evidence, I find that PW's. «i accused for being in by Lakkavva (elder sister of PWI]. 'In was living in the house of th.e.{:acc~used.d "Accus,ed No.1 to 6 were in possession of ' land Lakkavva. There was no need for accused . near the house of PW's.1 and 2 to pick up with them regarding possession of land. The VA prosecution ha.s failed to prove that PW's 1 and 2 belong 'to schedule caste. The document as per EX.P7 cannot be read as per evidence in absence of examination of Tahsildar (CW16) as a witness. The evidence of PW.4 that a,».::(;:useci Nof: .21r1.d 8 had outraged the rriodesty of PW2 looks ridiculous, as accused No.5 and 6 araalso women. The evidence of PW's TI to 5, PWI7 not supported by medical evidence and K , their evidence is highly discrepant;"«PW's-;5.,A.:_'7--_Vari'd'v were declared as hostile gwitnesses. T.f'_;e:"1";1eCl.icala certificate and evidence show grievous injuries, thevmpersons of PW's.l and 2, that ,".iIfjv':itlf1ey had been assaulted There was inordinate first information for which there pifoper' explanation. It appears' 1 and 2 had grudge against accused No.1 a1'1d___Ij1_i5 family members for being in belonged to Lakkavva who is the elder.'«sisvter7.'of It appears that PW.l had lodged "first information against accused No.1 and his family "meiriibers vvith a view to dispossess them from the land _ -fiieiii by Leikkawa.
The learned Trial Judge without noticing these discrepancies has held accused guilty of aforesiated £3 /3,' 5:-j"'*' V"
3. ,_ ._ offences. On re appreciation of evidence, I find that none of the offences for which the accused wereuciharged is proved. Therefore, the impugned _ Sustained.
14. In the result, I pass the 4' ' b The appeal is accepted,4_i:'f'he jtidgment is set aside. Accused 2001, on the file of Special irate acquitted of offene'es'i'pL"1,f1iSh:2§i??J1euiidersections 147. 323, 324. 506 r/W "offences punishable under Sectionsb3~»(1') [xV]'V-.afn.d3"iiV[1) (xi) of the SC/ST (Prevention oi-",,.f§trocities) bail bonds executed by accused "shall ciapcelled. The fine amount, if any, deposited byééjibthe. shall be refunded to them. Office is Adirecte_d to send back records along with a copy of this ju_dgme11t.
gel; *' EEEGE