Karnataka High Court
Siddappa And Ors vs The State Of Karnataka on 10 February, 2023
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 200016 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO.200016/2018
BETWEEN:
1. SIDDAPPA S/O MALAPPA MATIKAR
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O MADNALLI VILLAGE, TQ: SHAHAPUR,
DIST: YADGIR 585 201
2. MALAPPA S/O RAYAPPA NAIKODI,
AGE: 23 YEARS, OCC:AGRICULTURE,
R/O MADNALLI VILLAGE,
TQ: SHAHAPUR, DIST.YADGIR 585 201
3. SHARNAPPA S/O BASSAPPA KURUBAR
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O MADNALLI VILLAGE, TQ. SHAHAPUR,
Digitally signed DIST: YADGIR 585 201
by VARSHA N
RASALKAR
Location: High
...APPELLANTS
Court of
Karnataka (BY SRI SHIVASHARANA REDDY, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH SHAHAPUR POLICE STATION
(BY ADDL. SPP
HIGH COURT BUILDING) 585 103
...RESPONDENT
(BY SRI. GURURAJ V. HASILKAR, HCGP)
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CRL.A No. 200016 of 2018
THIS CRIMINAL APPEAL IS FILED U/S.374 (2) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASED BY
SESSIONS JUDGE SPECIAL COURT AT YADGIRI IN SPL CASE
No. 12/2013 DATED:19.12.2017 IN SO FAR AS CONVICTING
APPELLANTS NO.1 AND 2 HEREIN FOR THE OFFENCES
U/SEC.324 OF IPC AND U/SEC.3(1)(x) OF SC/ST (PA)
ACT,1989 AND CONVICTING APPELLANT NO.3 HEREIN FOR THE
OFFENCE 355 OF IPC AND ACQUIT THE APPELLANTS FROM THE
ABOVE SAID OFFENCES, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is directed against the judgment of conviction and order of sentence dated 19.12.2017 passed in Special Case No.12/2013 by the learned Sessions Judge, Special Court, Yadgiri, and sentenced the accused/appellants as under:
"Acting under Section 235(1) of Cr.P.C. accused persons are hereby acquitted of the offences punishable under Sections 143, 147, 148, 506, 109 R/w Section 149 of Indian Penal Code and accused Nos.3 to 7, 9 and 10 are also hereby acquitted of the offences punishable under -3- CRL.A No. 200016 of 2018 Sections 323, 324, 355, 504 of Indian Penal Code and under Section 3(1)(x) of SC/ST (P.A.) Act, 1989 R/w Section 149 of Indian Penal Code.
Acting under Section 235(2) of Cr.P.C. accused Nos. 1 and 2 are hereby convicted of the offences punishable under Section 324 of Indian Penal Code and under Section 3(1)(x) of SC/ST (P.A.) Act, 1989 and accused No.8 is hereby convicted of the offence punishable under Section 355 of Indian Penal Code,"
2. Heard Sri Shivasharana Reddy, learned counsel for the appellants and Sri Gururaj V. Hasilkar, Learned High Court Government Pleader for the respondent-State.
3. Brief facts of the case which are necessary for disposal of the appeal are as under:
Upon a complaint lodged by Mallappa Son of Doddappa, Shahapur police registered a case in Crime No.16/2013 on 14.01.2013 for the offence punishable under Sections 324, 109, 506, 504, 355, 143, 147, 148 and 149 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.-4- CRL.A No. 200016 of 2018
4. The gist of the complaint averments reveals that the complainant is a resident of Madnal village. On account of Makara Sankranti festival, the complainant and others participated in 'Pallaki Utsava' of Sangameshwara and Balabhimeshwara deities. People from Madnal and other devotees were also present. At about 4.30 p.m. on 15.01.2012, when the complainant and his relatives offered coconut to the deities, in the 'Pallaki Utsava', there was a huge rush and at that juncture, all the accused persons came there and picked up quarrel with the complainant and his villagers, abused them by taking out their caste name and threw chilli powder and assaulted them and whereby the complainant and others sustained injuries. The police after registering the case in Crime No.16/2013, investigation was carried out by the Deputy Superintendent of Police and after thorough investigation, charge sheet came to be filed against the respondents for the aforesaid offences. The presence of the accused was secured on receipt of the charge sheet and after complying Section 207 of Cr.P.C., the charges were framed against the accused for the aforesaid offences. Since the accused did not plead guilty, trial was held. -5- CRL.A No. 200016 of 2018
5. In order to bring home the guilt of the accused, in all examined 13 witnesses, who are the complainant and the injured persons. In all eight documents were relied on, which were exhibited and marked as Exs.P1 to P8. Five material objects are marked on behalf of the prosecution as MOs.1 to 5 comprising of Shirt, Towel, Stick, Stone and Slipper.
6. On conclusion of recording of the prosecution evidence, the accused statement as is contemplated under Section 313 of Cr.P.C., was recorded wherein the accused persons have denied all the incriminating circumstances and did not choose to offer any written submission as per Section 313(5) of Cr.P.C., nor adduced any defence evidence.
7. Thereafter, the learned Special Judge heard the parties in detail and on cumulative consideration of oral and documentary evidence placed on record, passed the judgment acquitting all the accused persons for the aforesaid offences.
8. Being aggrieved by the same, appellants have preferred the present appeal on the following grounds. The following grounds are as follows, -6- CRL.A No. 200016 of 2018 That the order passed under appeal in special case No.12/2013 is wholly illegal and arbitrary and opposed to law and facts and probabilities of the case.
The court below failed to carefully scrutinized the cross examination of PW.1
wherein complainant categorically states after his treatment at 11:00 PM he himself went to police station and lodged complaint by signing the complaint, which is contrary to his own evidence since complaint was registered at 09:30 PM itself with a thumb impression on it which clearly demonstrates that complaint itself was not lodged by complainant which is basic requirement to set in motion for prosecution case and in absence of the same any further proceedings cannot be sustained in eye of law.
The court below failed to consider the evidence of PW.13 1.0, wherein he had clearly stated that even though police personals, independent persons and poojaris were witness to incident, but their statements were not recorded to substantiate truth of the matter on the contrary all the close relatives of the complainant who are interested witnesses have been made as witness to prosecution case. -7- CRL.A No. 200016 of 2018
That when there are other independent witnesses including police personals available what necessitated prosecution to make only interested witness who are close relatives of complainant to make witness to prosecution case is totally unanswered by prosecution and court below since alleged incident is stated to have taken place in a big Fair (Jatra) with thousands of independent persons and police personals present on the occasion.
The court below failed to consider that injured witness PW.5 had categorically stated in his evidence that, only two persons i.e., he himself and complainant went to Fair (Jatra) and no other witnesses attended the Fair (Jatra) by which it clearly establishes that all the interested witnesses to prosecution case are added without their presence to support prosecution case which itself is based on false complaint.
The court below failed to consider evidence of PW7 who is father of complainant wherein he clearly states that accused persons are performing puja of deity regularly and others don't touch their deity by which it clearly shows complainant and others might have created trouble while performing puja due to which some people present their might have raised -8- CRL.A No. 200016 of 2018 objections for their acts, due to which to satisfy their ego and political rivalry a false complaint is lodged to harass the accused persons.
The court below failed to consider that as per evidence of prosecution witness themselves that thousands of people from 8 Villages had gathered to attend Fair (Jatra) and to offer coconut to deity causing huge rush and noise arising, that in such situation it is humanly impossible to carefully hear words uttered by any persons when this being situation hearing the words of accused persons resulting in scuffle seems to be imaginary story and court below without analyzing the situation carefully and believing complainant's false complaint convicted the appellants resulting in miscarriage of justice.
That none of the prosecution witnesses have stated that they along with complainant were moving as a group in Fair (Jatra) and witnessed the incident, but to the contrary to their evidence it shows, they visited the place at different point of time and attended the Fair (Jatra) independently with no persons of their community accompanying them when this being the true fact and each witnesses placed at different locations in large crowd the story of witnessing the incident and scuffle is totally -9- CRL.A No. 200016 of 2018 unbelievable which the court below failed to scrutinize it carefully resulting in injustice caused to appellants.
The court below failed to consider that even as per evidence of own prosecution witness PW.7 accused persons are poojaris of deity and performing puja regularly and there was no occasion for accused person to engage themselves in scuffle with complainant and others leaving performing of puja to deity unattended when thousands of people waiting in queue to offer their prayers and coconut to deity and entire complaint seems to be falsely filed against accused persons to satisfy their ego due to political rivalry.
The independent witnesses PW3 and PW10 who are witness to spot Panchanama and seizure Panchanama have completely turned hostile to prosecution case and in absence of any evidence of any independent witness and believing in one sided story without analyzing the facts and truth of the matter and convicting the appellants is bad in law and liable to be set aside.
The accused/appellants had no intention or motive to humiliate complainant and others
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CRL.A No. 200016 of 2018 and engage themselves in scuffle with complainant and others when they are pre- occupied with their duty to perform puja of deity with thousands of people waiting in queue to offer their prayers.
The evidence of doctor who opines that injuries are simple in nature and could be caused if person falls to ground or from a tractors that by analyzing the situation due to presence of huge crowd and stamped like situation such simple injuries occurs to many people in Fair (Jatra) and complainant giving colour to utilize their simple injuries to satisfy their ego had resulted in filing of false complaint and proceedings thereof.
That there are major omissions and contradictions in the evidence of prosecution witnesses which is major lapse which goes to roots of the prosecution case.
That the prosecution has not proved the charges leveled against accused beyond all reasonable doubt, but the court below erred in convicting the appellants based on statements of interested witnesses creating doubt about veracity of truth about such statements.
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CRL.A No. 200016 of 2018
That the trial court has erred in
convicting the appellant even though the
evidence of the prosecution witness suffers from cogent and clear evidence against appellant the same is liable to be set aside.
The court below has not given any valid or proper reasons for convicting the appellant for the alleged offences.
That viewed from any angle the Judgment and order passed by Court below convicting the appellant is illegal, improper and deserves to be set aside.
The appellants crave leaves of this Hon'ble Court to urge additional grounds at the time of arguments.
9. Re-iterating the grounds urged in the memorandum of appeal Sri Shivasharana Reddy, learned counsel vehemently contended that State having not preferred any appeal as against the other accused persons especially when the prosecution has invoked Section 149 of IPC, the conviction as against the present appellants are impermissible and sought for allowing the appeal. He also contended that the learned Trial
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CRL.A No. 200016 of 2018 Judge has not properly appreciated the material on record and therefore, sought for allowing the appeal.
10. Per contra, Sri Gururaj V. Hasilkar, learned High Court Government Pleader, vehemently contended that there is no bar for convicting few of the accused persons even if the offence under Section 149 IPC is invoked if there are sufficient materials as against the other accused persons.
11. This Court in the light of the arguments putforth by the parties perused the records meticulously. On such perusal of the records, the following points would arise for consideration:
1. Whether the finding recorded by the learned Special judge that the appellants are guilty of the alleged offences is suffering from patent factual defect, legal infirmity and perversity and thus, calls for interference?
2. If so, whether the sentence is excessive?
3. What order?
12. In the case on hand, complainant-Mallappa is examined as PW.1 and Sri Saibanna examined as PW.5. Doctor
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CRL.A No. 200016 of 2018 who examined these two witnesses is examined as PW.9 and he has issued the wound certificate as per Exs.P5 and P6 have supported the case of the prosecution.
13. PWs.1 and PW.5 deposed before the Court and explained the incident with graphic details. Despite such cross- examination also, no useful material is elicited so as to disbelieve the evidence of these witnesses.
14. Doctor who issued Exs.P5 and P6 is examined as PW.9. In her cross-examination also no useful material is elicited so as to suspect the genuineness of Exs.P5 and P6.
15. On cumulative consideration of the oral testimony of these witnesses and the oral testimony of the doctor and investigating agency and the material objects being marked, the Trial Court formed an opinion that appellants are guilty of the aforesaid offences.
16. Sri Shivasharana Reddy, learned counsel for the appellants contended that in respect of the same incident, the very same judge has passed an order of acquittal in respect of another group of people and few of the accused persons in the
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CRL.A No. 200016 of 2018 present case itself and in respect of another case, the State has preferred an appeal in Criminal Appeal No.200059/2016 arising out of Crime No.05/2012 and this Court dismissed the appeal of the State and therefore, the present appeal also needs to be allowed.
17. On considering the material evidence on record, the contention of the counsel for the appellants that few of the accused persons in the present case being acquitted by the learned Special Court in Crime No.05/2012 cannot be a ground for acquittal of the present appellants also, there are individual overt-act specifically alleged against the present appellants by the injured eyewitness and their testimony is kept on higher pedestal.
18. However, having regard to the fact that thousands of persons have gathered in the 'Pallaki Utsav' on the eve of Sankranti festival on 14.01.2013. Therefore, the allegations levelled against the appellants herein that they have indulged in abusing the complainant party in filthy language, taking out their caste name so as to degrade their dignity in the public view, could not have been attributed to only present appellants
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CRL.A No. 200016 of 2018 especially when the prosecution has invoked section 149 of IPC. Further the very same complainant had also filed a similar case in the Sankranti festival which was held on 14.01.2012 which resulted in acquittal and this Court confirmed the order of acquittal. Therefore, it could be considered that the complainant is a habitual complainant.
19. Taking note of these aspects of the matter and the wound certificate, the impugned judgment is suffering from legal infirmity insofar as offence under Section 3(1)(x) of SC/ST PA Act and the same needs to be interfered by this Court by setting aside the conviction order insofar as those offences are concerned. Since injured witnesses have deposed before the Court and identified the accused persons who have assaulted and coupled with wound certificate Exs.P5 and P6, this Court is of the considered opinion that conviction of the appellants for the offence punishable under Section 324 of IPC needs to be confirmed.
20. Accordingly, Point No.1 is answered partly in affirmative.
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CRL.A No. 200016 of 2018 Regarding Point No.2
21. In view of the finding of this Court on point No.1, sentence of imprisonment ordered for the offence punishable under Section 324 of IPC also needs modification as the appellants are first time offenders and they are entitled for grant of probation. Hence, point No.2 is answered partly in affirmative.
Regarding Point No.3
22. In view of the finding of this Court on point Nos.1 and 2 above, the following order is passed:
ORDER
1. The Criminal appeal is allowed in part.
2. Appellants are acquitted for the offence punishable under Section 3(1)(x) of SC/ST PA Act, 1989.
3. Conviction of the appellants for the remaining alleged offences is maintained and they have been granted probation under Section 4 of the Probation of Offenders Act and ordered to execute a
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bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the Trial Court which shall be in force for a period of two years for their good behaviour.
4. Time is granted to execute the bond till 06.03.2023.
Office is directed to return the Sessions Court Records with a copy of this judgment forthwith.
Sd/-
JUDGE PL/VNR List No.: 1 Sl No.: 57