Karnataka High Court
Satisha vs State By Keragodu Police Station on 20 March, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
CRIMINAL APPEAL NO.90 OF 2011 (C)
BETWEEN:
SATISHA,
S/O. MUDDAVENKATAIAH (LATE)
@ MUDDUVENKATE GOWDA,
AGED ABOUT 43 YEARS,
VOKKALIGA BY CASTE,
R/O. MARAGOWDANAHALLI
VILLAGE, KEREGODU HOBLI,
MANDYA TALUK. ...APPELLANT
(BY SMT. ARCHANA MURTHY, ADVOCATE)
AND:
STATE BY KERAGODU
POLICE STATION,
THROUGH DY.S.P.,
MANDYA. ...RESPONDENT
(SRI. S.RACHAIAH, HCGP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 22.12.2010 PASSED BY THE ADDITIONAL
SESSIONS AND SPECIAL JUDGE, MANDYA, IN
SPL.C.NO.14/2009- CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 323 AND 325 OF IPC.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and sentence dated 22.12.2010 passed in Spl.C. No.14/2009 by Additional Sessions and Special Judge, Mandya.
2. The prosecution case in nutshell is that one Smt. Gowramma of Maragowdanahalli Village, had borrowed hand loan of Rs.5,000/- from complainant Smt. Shivamma who is the resident of the same village, but she had failed to repay the loan amount. Therefore, on 22.02.2009, morning at about 7.45 a.m., the complainant Shivamma and her son had gone to the house of Gowramma to ask for repayment of the loan lent by them. At that time, the accused by name Satish, s/o. Muddevenkataiah, picked up quarrel with the complainant's son Keshavamurthy by abusing him in a filthy language by taking the caste name 3 and assaulted him with a brick on his left eye and left side of the head. When the complainant tried to prevent the assault, the accused has also assaulted her with the brick. On the complaint filed by the injured victim - Shivamma, Keragodu Police have registered the case in PS. Crime No.29/2009 for the offences punishable under Section 324, 504 Indian Penal Code read with Section 3 (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
3. After completion of the investigation, the police have submitted the chargesheet against the accused for the offences punishable under Sections 326, 504 Indian Penal Code r/w Section 3 (1) (x) and 2 (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which was registered as C.C. No.3/2009.
4. After committal of the case to the Sessions / Special Court, and appearance of the accused, the charges were framed for the offences under Section 3 (1) (x) of Scheduled 4 Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Section 323 & 325 IPC. In view of the denial of the said charges by the accused, the trial was held. The prosecution has examined nine witnesses as PW1 to PW9. The documents are marked as Exhibits-P1 to P8. The material objects are identified as M.O. Nos.1 to 4.
5. On appreciation of oral and documentary evidence placed on record, the Special Court has held the accused guilty for the offences punishable under Sections 323 and 325 IPC and has sentenced the accused to pay a fine of Rs.1,000/- for the offence punishable under Section 323 IPC, in default to undergo one month's rigorous imprisonment. Further, the accused is also sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 325 IPC and to pay a fine of Rs.1,000/-, in default to undergo two month's rigorous imprisonment.
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6. Being aggrieved by the judgment of conviction and sentence passed by the Special Court, the accused has preferred the appeal.
7. Heard the learned counsel for the appellant and learned High Court Government Pleader. Perused the impugned judgment and records.
8. The learned counsel for the appellant submits that the trial Court has misread the evidence on record and has failed to consider the material evidence in proper perspective and has wrongly convicted the accused. Thus, it has resulted in miscarriage of justice.
9. On the other hand, the learned High Court Government Pleader appearing for the State, submitted that there is ample evidence to show that the accused has abused the complainant and her son in a filthy language by taking the caste name and has also caused grievous hurt by assaulting with a brick. The findings given by the 6 Special Court are justified and there are no valid grounds for interference.
10. Having heard the submission of the learned counsel for the appellant and the learned High Court Government Pleader, the point that arises for my consideration is:
Whether the Special Court was justified in convicting the accused and whether there are any grounds for modification of the judgment of conviction?
11. It is the duty of the Court to consider the trustworthiness of injured and eye witnesses, in order to ascertain whether their evidence is filled with any contradictions, improbabilities and variations, so as to come to the conclusion whether these witnesses can be relied on to convict the accused. Thus, I have given a cursory glance to the evidence of the prosecution witnesses.
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12. PW1 is the Medical Officer who has treated the injured victims namely the complainant and her son. PW2 and PW3 are the injured victims. PW4 is the independent witness present at the spot at the time of incident. PW5 is also the witness present at the spot and borrower of the loan from the complainant. PW6 and PW7 are the witnesses for Exhibit-P5, spot and seizure mahazar. PW8 is the Investigating Officer who has submitted the chargesheet on completion of the investigation. PW9 is the Station House Officer who has registered the case.
13. According to the prosecution version, PW2 and PW3 had gone to the house of PW5 - Gowramma for recovery of the hand loan, at that time, the accused who is said to be the relative of Gowramma, has abused and assaulted them.
14. PW2 has stated that on 22.02.2009, in the morning at about 7.45 a.m., she had gone to the house of 8 Gowramma along with her son. At that time, the accused came there and abused them in a filthy language and also assaulted them with a brick. As a result of which, they sustained the injuries. They were taken to the Hospital for treatment, thereafter, the police have conducted the mahazar and have seized the banian, shirt and brick pieces, which are marked as MO Nos.1 to 4.
15. In the cross-examination, she has admitted that there was no rivalry or enmity between them and the accused and the accused is not connected with the loan transaction. Further, she has stated that when she had gone to the house of Gowramma along with her son, the said lady was alone at home. The bricks had fallen near the house of Gowramma. The neighbours were watching the incident of assault. But, she did not know whether the said neighbours had brought the accused to the spot. She has denied the suggestion that both of them had used physical force and pulled her for the purpose of recovering 9 the excess amount loan. She has also denied the suggestion that since accused was the guarantor for the hand loan borrowed by Gowramma, he has been falsely implicated in this case.
16. PW3 - Keshavamurthy, is the son of PW2, who had accompanied his mother - PW2 to the house of Gowramma for recovery of the loan amount. He has given the similar version that on 22.02.2009, morning at about 7.45 a.m., when they had gone near the house of Gowramma, the accused came there and abused them in a filthy language and also assaulted him with a brick piece on his left forehead, left arm and right leg. Then, the accused assaulted his mother with a brick piece on her left wrist, as such, she sustained the fracture. The police have conducted the mahazar near the house of Gowramma in the presence of panchas and have seized the material objects.
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17. In the cross-examination, PW3 has stated that their house is at a distance of 250 feet from the house of Gowramma. At the time of incident, the neighbours of Gowramma were not present at the spot. Two persons by name Panchalingaiah and Kitty came later after the assault and pacified the accused. Further, this witness has stated that the accused came by the same road when they had gone to the house of Gowramma to ask for repayment of the loan. He has denied the suggestion that they had taken the accused as a guarantor for the loan, as such, they had quarreled with him. He has also denied the suggestion that since the accused did not advise Gowramma to pay higher rate of interest, he has been falsely implicated in this case, by making frivolous allegation of abuse by taking caste name.
18. PW1 is the Medical Officer of District Government Hospital, Mandya, who has treated PW2 and PW3. He has stated in his evidence regarding the four injuries caused to 11 PW2 - Shivamma and four injuries caused to PW3 - Keshavamurthy. Exhibits-P1 and P2 are the Wound Certificates of PW2 and PW3. According to the Medical Officer, three injuries caused to PW2 - Shivamma are only tenderness over left arm, right scapular area and right thigh distal third. According to Exhibit-P2, all the four injuries caused to PW3 - Keshavamurthy are only abrasions over ring and little finger, right knee, left foot and zygomatic area. In the cross-examination, he has stated that the injury to the wrist of PW2 - Shivamma may be caused due to falling on the ground and the injuries found on PW3 - Keshavamurthy may be caused on account of fall on the ground having rough surface or on the bricks.
19. PW4 is the independent eye witness. He has stated in his examination-in-chief that on 22.02.2009, morning at about 7.30 or 7.45 a.m., PW2 and PW3 were standing near the house of Gowramma, CW4 - Kitty was also going 12 towards his paddy field, there was a galata between the accused and PW2 and PW3. But, he did not see as to who abused and who has assaulted PW2 and PW3. This witness was treated hostile. In the cross-examination, he has denied the suggestion that the accused has abused and assaulted PW2 and PW3.
20. PW5 is the borrower of hand loan from PW2 and PW3 and also the relative of the accused. This witness has not supported the prosecution version and has stated that on the date of the incident, the accused was not there and she has not seen the accused abusing or assaulting PW2 and PW3.
21. In the cross-examination by the learned Public Prosecutor, she has denied the suggestion about the statement given by her narrating the incident of abuse and assault done by the accused to PW2 and PW3. 13
22. PW6 and PW7 are the witnesses for spot and seizure mahazar. These two witnesses have only admitted their signature on Exhibit-P5 and have stated that as per the direction of the police, they have put their signature and material objects have not been seized. The evidence of these two witnesses do not prove the recovery of material objects at the spot.
23. PW8 and PW10 are the police officials. PW8 being the Investigating Officer has submitting charge-sheet after completion of the investigation. PW9 is the Station House Officer who has registered the FIR.
24. During the course of arguments, the learned counsel for the appellant / accused would contend that there are glaring discrepancies between the evidence of the injured victims and also the eye witnesses. PW5 who is also the eye witness has not supported the case of the prosecution. The recovery of material objects namely the bricks and blood stained clothes of the injured, has not 14 proved. Under these circumstances, the finding given by the Sessions Court holding the accused guilty is erroneous.
25. Per contra, the learned High Court Government Pleader in order to prove the presence of the accused at the spot on the date of the incident, has placed reliance on the evidence of the independent eye witness namely PW4 and the evidence of PW1, the Medical Officer who has treated the injured victims and Wound Certificates.
26. In the present case, even though there are doubtful circumstances, variations and glaring discrepancies in the evidence as pointed out by the learned counsel for the appellant, what is required to be seen is whether the evidence of PW2 and PW3, who are the interested witnesses, can be disbelieved.
27. PW2 - complainant has admitted in the cross- examination that the accused is not connected with the 15 loan borrowed by PW5 - Gowramma and there was no rivalry between them, thus, it is evident there was no motive or preplan to commit the crime. It is pertinent to note that the evidence placed on record disclose that, when PW2 and PW3 had gone to the house of PW5 for recovery of the hand loan, the incident has taken place. In the cross- examination of PW2 and PW3, the defence counsel has made a suggestion that the accused was a guarantor for the said loan, but the said suggestion has been denied by them. PW2 and PW3 had gone to the house of PW5 for recovery of the loan, at that point of time, PW5 had not anticipated that they would come and quarrel with her for recovery of the loan. Thus, there was no premeditation whatsoever for commission of the crime.
28. In the instant case, PW4 alone is the independent eye witness. He has stated that on the date of the incident, there was a clash between them in front of the house of PW5. His evidence goes to prove the presence of 16 the accused at the spot and there was a clash between PW5 and accused on the one side and PW2 and PW3 on the other side. According to the prosecution version, the accused has assaulted with brick pieces and has caused grievous hurt to PW2 and PW3, but, the recovery of these material objects has not been proved. Both mahazar witnesses have only stated about the signature taken by the police and they have denied the suggestion that the police have collected the brick pieces at the spot.
29. On reappreciation of the entire oral and documentary evidence placed on record, I am of the considered view that on the date of the incident, the accused has quarreled with PW2 and PW3 who had gone to the house of PW5 - Gowramma for recovery of the loan. At that juncture, due to heated discussion and on the sudden and grave provocation, the accused must have used physical force or both parties might have used physical force against each other, as a result of which, both PW2 17 and PW3 have fell on the ground having rough surface or bricks which has resulted in injuries. At any rate, there is no convincing or clinching evidence to show that the accused had come to the spot with premeditation to commit or cause grievous hurt. As could be seen from the evidence, the clash had taken place when PW2 and PW3 had gone to the house of PW5 for recovery of the loan and at that point of time, the accused had intervened in support of PW5 - Gowramma. Even the recovery of the material objects namely the bricks and the blood stains, have not been proved. Even though PW2 - Shivamma has stated about the fracture of left arm, the X-ray films and reports are not forthcoming. Under these circumstances, no definite conclusion can be drawn that the victim Shivamma sustained the fracture or grievous injury on account of the assault done by the accused. On the basis of the evidence placed on record, two views are possible. One is that, the accused has assaulted PW2 and PW3 with brick or during the clash, PW2 and PW3 have sustained 18 the injuries by falling on the ground. Under these circumstances, the one which is favourable to the accused shall have to be accepted. However, the evidence placed on record confirms that on account of clash between them, PW2 and PW3 have sustained injuries which is mainly because of the physical force used by the accused on account of provocation made by PW2 and PW3. Thereby, the accused has committed the offence punishable under Section 335 IPC. Accordingly, I pass the following:
ORDER i. Criminal Appeal filed by the appellant is allowed in part.
ii. The judgment of conviction and sentence dated 22.12.2010 passed in Spl.C. No.14/2009 by the Additional Sessions and Special Judge, Mandya, convicting the accused for the offences punishable under Sections 326, 504 IPC r/w Section 19 3 (1) (x) and 2 (5) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and sentencing the accused to pay a fine of Rs.1,000/- for the offence punishable under Section 323 IPC, in default to undergo one month's rigorous imprisonment and further, sentencing the accused to undergo rigorous imprisonment for six months for the offence punishable under Section 325 IPC and to pay a fine of Rs.1,000/-, in default to undergo two month's rigorous imprisonment, is modified as under:
a. The accused is held guilty for the offence under Section 335 IPC.
b. The accused is sentenced to pay a
sum of Rs.2,000/- (Rupees Two
Thousand only) for the offence
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punishable under Section 335 of IPC,
in default to pay the fine amount, he
shall undergo simple imprisonment
for a period of one month.
c. Out of the fine amount, a sum of
Rs.1,000/- (Rupees One Thousand
only) shall be paid to PW2 -
Shivamma, the injured victim.
Sd/-
JUDGE
SJ