Karnataka High Court
Annaraya S/O Sharanbasappa Ors vs The State Through Aland P.S. on 6 July, 2018
1 Crl.A.No.3524/2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3524/2012
BETWEEN:
1. Annaraya S/o Sharanbasappa,
Age 24 years, Occ. Agriculture,
2. Suresh S/o Mahadevarao,
Age 22 years, Occ. Driver,
3. Vishwanath S/o Subhash,
Age 30 years, Occ. Driver,
4. Vijayanand S/o Naganna,
Age 35 years, Occ. Agriculture,
5. Suresh S/o Nijappa Jari,
Age 21 years, Occ. Driver,
6. Gundappa S/o Shivappa,
Age 25 years, Occ. Agriculture,
All are resident of Bangarga,
Tq. Aland.
... Appellants
(By Sri Baburao Mangane, Advocate)
2 Crl.A.No.3524/2012
AND:
The State through
Aland Police Station,
Gulbarga.
... Respondent
(By Sri Md.Maqbool Ahmed, HCGP)
This Criminal Appeal is filed under Section 374(2)
of Code of Criminal Procedure praying to allow the
appeal and set aside the judgment and order passed in
Special Case No.561/2010 on the file of II Additional
Sessions Judge at Gulbarga dated 11.01.2012
convicting the appellants for the offences under
Sections 143, 148, 336, 323 and 324 read with Section
149 IPC and acquit the accused/appellants of the
alleged offences.
This Appeal is coming on for hearing this day, the
Court delivered the following:
JUDGMENT
This appeal of the accused is directed against the judgment and order of conviction and sentence dated 11.01.2012/13.01.2012 passed by the II Additional Sessions Judge, Kalaburagi in Special Case 3 Crl.A.No.3524/2012 No.561/2010. The appellants are the accused in the said case; they will be referred to hereafter with their ranks before the Trial Court.
2. The accused were tried in Spl.Case No.561/2010 for the charges for the offences punishable under Sections 143, 148, 336, 323, 324, 504 and 506 read with Section 149 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short 'the SC/ST (PA) Act'] on the basis of the charge sheet filed by Aland Police in Crime No.141/2010 of their police station.
3. The said case was registered against the accused on the basis of the complaint - Ex.P-1 filed by PW-1 Sopanrao. It was alleged that PWs-1 to 12 belong to Scheduled Caste and on 31.05.2010 at about 7.30 p.m when PWs-1 to 12 were proceeding in procession in front of Bangarga Gram Panchayat in celebration of Dr.Babasaheb Ambedkar Jayanti, the accused took 4 Crl.A.No.3524/2012 objection for the members of procession entering the village on the communal ground, abused them in foul language taking name of their caste, criminally intimidated them and pelted stones towards them. It is alleged that stones hit to PWs.1. to 12, caused them injuries.
4. It was alleged that accused have committed atrocity against the members of the Schedule Caste. Since the accused denied the charges framed against them, the Trial Court proceeded to hold the trial. The prosecution examined PWs-1 to 21 and got marked Exs.P-1 to P-18 and MOs-1 to 10 the stones.
5. The Trial Court after examining the accused under Section 313 of Cr.P.C., and hearing both the parties, by the impugned judgment and order convicted the accused for the charges for the offences punishable under Sections 143, 148, 336, 323 and 324 read with Section 149 IPC and acquitted them of the charges for 5 Crl.A.No.3524/2012 the offence punishable under Section 3(1)(x) of the SC/ST (PA) Act and Sections 504 and 506 read with Section 149 IPC.
6. The Trial Court sentenced the accused as follows :-
Fine Offences Imprisonment amount 143 IPC 3 months - simple Rs.3,000/-
imprisonment 148 IPC 1½ year - simple imprisonment Rs.5,000/- 336 IPC 45 days - simple imprisonment Rs.1,000/- 323 IPC 6 months - simple Rs.2,000/-
imprisonment 324 IPC 1½ year - simple imprisonment Rs.5,000/-
7. The Trial Court recorded its order of conviction and sentence on the following grounds ;- i. PWs-1 to 12 are the injured witnesses, therefore their evidence shall be believed; 6 Crl.A.No.3524/2012 ii. The evidence of PWs-1 to 12 is corroborated by the medical evidence of PW-17 and the wound certificates; and iii. Soon after the incident the complaint was filed and the accused are named in the complaint. Therefore, there was no scope for manipulation or concoction.
8. The Trial Court imposed various terms of default sentences in case the accused commits default in payment of fine amount. The Trial Court also ordered that all the sentences shall run consecutively.
9. Sri Baburao Mangane, learned counsel for the appellant/accused seeks to assail the impugned judgment and order of conviction and sentence on the following grounds ;-
i. The evidence on record shows that there was political rivalry between accused and the complainant party;
7 Crl.A.No.3524/2012ii. Trial court failed to note that except PWs-1 to 12, the interested witnesses, no other independent witnesses are examined; iii. Specific overt acts of each accused are not narrated by the witnesses;
iv. The evidence of Doctor PW-17 is totally unreliable;
v. The seizure of MO-Nos.1 to 10 under the mahazar is highly doubtful ; and vi. Filing of the complaint itself smacks doubts.
10. Sri Md. Maqbool Ahmed, learned High Court Government Pleader seeks to support the judgment on the following grounds:-
i) PWs-1 to 12 are the injured witnesses; there is no reason for them to spare the true culprits and falsely implicate the accused.
ii) PW-17 the Doctor is independent witness; there is no reason to suspect his credibility.
iii) PWs-18 to 21 are also independent injured witnesses, they have no reason to falsely implicate the accused.8 Crl.A.No.3524/2012
11. Having regard to the rival contentions, the point that arises for consideration is:-
"Whether charges brought against the accused were proved beyond reasonable doubt and the impugned order of conviction and sentence warrants interference by this Court?"
12. As per the prosecution, the source of incident is a communal hatredness amongst the accused and PWs-1 to 12. According to the prosecution, the entry of procession party of PWs-1 to 12 in the village irked the accused, therefore, they assaulted the victims near Gram Panchayat.
13. The trial Court acquitted the accused of the charges under Sections 504 and 506 IPC and Section 3 (1) (x) of the SC/ST (PA) Act. The State has not preferred any appeal against such acquittal and therefore that order has become final. 9 Crl.A.No.3524/2012
14. Then the question is whether the evidence of PWs-1 to 12 and doctor PW-17 is acceptable as held by the trial Court. The victim parties, according to PWs-1 to 12, were 12 in number. Except accused Nos.1 to 6, they do not implicate any other persons as assailants. According to them six persons by pelting stones towards them caused the injuries mentioned in Exs.P-4 to 15. According to the prosecution MOs-1 to 10 were the stones used to commit the offences and they were seized under mahazar Ex.P-2.
15. PW-21 states that on taking investigation, he visited the spot and spot was shown to him by one Nagesh the eyewitness, and stones MOs-1 to 10 were seized under mahazar Ex.P-3. The said Nagesh is neither cited as the charge sheet witness nor examined before the Court. Ex.P-3 states that six hand size stones were produced by the eyewitness and they were seized. Whereas, the Investigating Officer PW-21 states that the stones seized were 10 in numbers and he sent 10 Crl.A.No.3524/2012 them for opinion of the Doctor PW-17. Then in his cross-examination PW-21 admits that as per Ex.P-3, the seized stones were only 6. That itself goes to show that there is an attempt of exaggeration and lack of fairness looms large.
16. PW-13 Sugrev, the alleged seizure mahazar witness-cum-eyewitness, states that police conducted the mahazar on June 1st and seized MOs-1 to 10 in his presence. In the cross-examination he says that he does not know what all written in the mahazar. He states that he has only subscribed his signature on the mahazar as was directed.
17. Coming to Ex.P-1, PW-1 deposes that after the incident somebody took him to the hospital at about 09-00 p.m., and police recorded his statement there. In his cross-examination, PW-1 states that his complaint was written by the police and he was asked to subscribe his signature on the same and accordingly he signed. 11 Crl.A.No.3524/2012 But, Ex.P-1 the complaint shows that it is scribed by one Surendra Pandurang Bangaraga. The said Surendra is not cited as the chargesheet witness.
18. Contrary to such recital in Ex.P-1, PW-20 the PSI states that he visited the hospital at 9-15 p.m., and wrote the complaint of PW-1. In the cross examination he takes a different stand and states that complaint was already written and kept ready by one Suresh and he received that. But surprisingly, in the examination-in-chief he says that he had subscribed his signature as per Ex.P-1(b) on Ex.P-1 as the scribe of the complaint. That is contrary to recital in Ex.P-1 about Surendra being the scribe.
19. PW-1 states that they reached hospital at 9 p.m. Thereafter police visited the hospital and recorded his statement. PW-20 says that he visited the hospital at 9.15 p.m. and recorded the complaint Ex.P-1. The endorsement of PW-20 in Ex.P-1 shows that he returned 12 Crl.A.No.3524/2012 to the police station and registered the FIR at 10.30 p.m. Column No.15 of the FIR states that the same was dispatched to the Court at 9.30 p.m. The FIR was received by the jurisdictional Court on next day at 10.45 a.m. This shows there is something foul about filing of the complaint and registering the case.
20. The Trial Court says that the evidence of PWs-1 to 12 regarding they suffering injury in the hands of accused Nos.1 to 6 by stone pelting is corroborated by the evidence of PW-17, the Doctor. PW-17 says that while he was working as Medical Officer in the Government Hospital, Aland, he examined PWs-1 to 12 who had come with the history of assault and issued Wound Certificates Exs.P-4 to P-15 and that the victims had suffered the injuries mentioned therein.
21. Firstly, the MLC Register extracts were not produced before the Court to substantiate Exs.P-4 to P-15. The accused denied the entire case of the 13 Crl.A.No.3524/2012 prosecution and when suggested to PW-17 that he has issued false certificates at the behest of police, PW-17 says that PW-3 had suffered tenderness on calf region in both legs and pain in private part and that no external injury was found. He still says that PW-3 was treated as in-patient for 10 days. For PW-1 he says that PW-1 had suffered contusion on the left popliteal region and abrasion on the left calf region and for such injury, he was treated as in-patient for three weeks. Regarding PWs-4, 5, 7, 8, 9 and 10, he says that they had suffered simple injuries and were treated as in-patients for 10 days.
22. PW-17 - the Doctor does not produce MLC Register, Discharge Summary and any Outpatient Slip or Inpatient Slip. In the Wound Certificates produced by him, no IP number is mentioned. Having regard to these facts and circumstances, the Trial Court fell in error in relying on the evidence of PW-17. It has come in the evidence that the accused supported the rivals of 14 Crl.A.No.3524/2012 PW.1 party in an election. The motive is double-edged weapon. Having regard to that and discrepancies in the Doctor's evidence regarding injuries and the evidence of PWs-1 to 12, in the complaint and the seizure mahazar, prosecution case becomes doubtful.
23. Another thing to be noted is, injured were twelve in number and accused were six in number. As per Ex.P-2, the stones used were only six in number. It becomes hard to believe for any person of ordinary prudence that six persons could cause injuries with six stones to 12 persons as mentioned in Exs.P-4 to P-15. Therefore, the case of the prosecution was full of doubts. In such doubtful case, the Trial Court was not justified in convicting and sentencing the appellants based on evidence of PWs-1 to 12 and 17.
24. Therefore, the appeal is allowed. The impugned judgment and order of conviction and 15 Crl.A.No.3524/2012 sentence is hereby set aside. The accused/appellants are acquitted of all the charges brought against them.
The bail bonds of the appellants and their sureties shall stand cancelled.
The fine amount deposited, if any, by the appellants shall be refunded to them.
Sd/-
JUDGE sn/RSP/Srt