Karnataka High Court
State Of Karnataka vs Basanagouda on 6 February, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
th
6
DATED THIS THE DAY OF FEBRUARY 2010
BEFORE
THE HON'BLE MRJUSTICE JAWAD RAHIM
O1922 2007
BETWEEN
STATE OF KARNATAKA
THROUGH SHORAPUR POLICE STATION
GULBARGA APPELLANT
(By Sri SHARANABASAPPA K BABSHETTY, ADV,)
AND
I. BASANAGOUDA
5/0 PARAMANNAGOUDA BONHAL
AGED ABOUT 40 YEARS
0CC: AGRICULTURIST
R/O BON HAL VILLAGE
SHORAPUR TALUK
GULBARGA DISTRICT
2. SANGANAGOUDA
5/0 PARAMANNAGOUDA BONHAL
AGED ABOUT 35 YEARS
DCC: AGRICULTURIST
R/D BON HAL V]. LLAGE
SH ORAPUR TALUK
GULBARGA DISTRICT
5. MALLIKARJUNA
S/0 KANTHAYYA SWAMY
AGED ABOUT 35 YEARS
0CC: AGRICULTURIST
RIO BON HAL VILLAGE
SHORAPUR TALUK
GULBARGA DISTRICT
4. SHIVAKUMAR
5/0 GURUBASAYYA HIREMATH
AGED ABOUT 28 YEARS
0CC: AGRICULTURIST
RIO BON HAL VILLAGE
SHORAPUR TALUK
GULBARGA DISTRICT
5. SHIVAPPA
S/0 VEERABHADRAPPA BANDAKUNDI
AGED ABOUT 30 YEARS
0CC: AGRICULTURIST
R/0 BON HAL VILLAGE
SHORAPUR TALUK
GULBARGA DISTRICT
6. BASANAGOUDA
5/0 NAGANAGOUDA MALI PATIL
AGED ABOUT 38 YEARS
0CC: AGRICULTURIST
R/O BON HAL VILLAGE
SHORAPUR TALUK
GULBARGA DISTRICT RESPONDENTS
CRLA. FILED U/S378(i) & (3') Cr,P.C BY THE STATE
P,P. FOR THE STATE PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DT592OO7 PASSED BY THE
SPLJUDGE & Ii ADDLSJ, GULBAR••GA IN
3
SPL.CASE.NO.177/04 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES P/U/Ss.143,
148, 323, 324 AND 504 R/W. SEC. 149 OF IPC & ALSO
UNDER SEC.3(1)(x) OF SC & ST (POA) ACT, 1989. ThE
APPELLANT/STATE PRAYS THAT THE ABOVE ORDER MAY
BE SET ASIDE.
THIS CRL.A COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DEUVERED THE FOLLOWING:
JUDGMENT
State is in appeal against Judgment in Special Case No.177/2004 on the file of Special Judge & II Addi. Sessions Judge at Gulbarga dated 6.9.2007, acquitting the respondents of the charges for the offences punishable under Sections 143, 147, 148, 324 and 504 read with SectIon 149 of IPC and also under Section 3(1)(x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Heard learned HCGP on merits.
3. Contextual facts are:
One Yamanappa lodged a report on 16.4.2004 at the jurisdictional Police Station alleging that at 3.30 p.m. at 4 the entrance gate [Agasi] of Bonhal Village, people had gathered for casting vote in an election. The respondents armed with rod, axe, stick and stone, abused the Complainant as also Basappa and Sangappa referring to their Caste as "Holeya Sule Makkale" and then prevented them from tying the banners in support of their candidate contesting the election. Thereafter, the accused, forming unlawful assembly chased the Complainant and others and assaulted them with deadly weapons like axe, rod, club & stone and caused injuries. The report was received by PW.9-Sharnappa, PSI of Shorapur Police Station who registered it in Crime No.103/2004 for the offences indicated above in FIR vide Ex P6 and submitted it to the designated Court and then sent Complainant-Yamanappa, Basappa and Sangappa to Government Hospital for treatment.
4. PSI-Sharnappa is said to have handed over investigation to Dy.S.P.Yadgir-Poovayya, who commenced investigation on 17.4.2004 and visited the place of 5 occurrence and recorded the Statement of witnesses. After securing Caste Certificate and other documents, he flied charge sheet against the respondents for the offences indicated above. The respondents were summoned and put to trial. The prosecution examined in all 10 witnesses, placed reliance on 7 documents and 4 material objects. The accused put up defence of denial simplicitor when confronted with incriminating aspects appearing in evidence during their examination under Section 313 of Cr.P.C., -
5. The learned designated Judge, found the evidence not sufficient to convict the respondents for the offences indicated above and acquItted them. Against the said judgment, the State is In appeal.
6. Sri Sharanabasappa K Babshetty, learned HCGP would contend that prosecution had lead sufficient, convincing and clinching evidence to establish charge against the respondents for the offences indicated above. But, the trial Court has ignored the unImpeachable 6 evidence of the Complainant and other victims, unjustifiably granted acquittal. He relied on the deposition of Yamanappa and Basappa to show that they had in unequivocal terms revealed the overtacts of the accused and had also supported their version through medical evidence. He contended that such evidence was consistent but the trial Court has Ignored it. He therefore, seeks reversal of the Judgment.
7. Since this is the appeal against acquittai necessarily the State has to make out a strong case, justifying reversal of the finding recorded by the trial Court. I have examined the records in supplementation to what is urged in support of the appeal.
8. At the outset, it is to be noticed Complainant Yamanappa is said to have reported about the incident to PW.9-Sharanappa at 9 p.m. through his report at Dc P1. The report-Dc P1 bears an endorsement of PW-9 that the statement given by Yamanappa was reduced to writing at 9 p.m. on 16.4.2004 and FIR was registered In Crime 7 No1O3/2OO4. Therefore, the time at which the First Information Report reached the Police Station is shown as 9 pm. on 16A 2OO4
9. PW 9Sharnappa, the said police officer has deposed to these facts in his evidence before the Court and has also in dear terms deposed that after registering the FIR at 9 pm he sent the injured to the Government Hospital for treatment and then handed over investigation to the jurisdictional DySP, Against the said evidence prosecution itself has examined two Doctors Dr Kishore Mankar PW7, to speak to the fact that he had examined Yamanappa PW,1 and treated him. PW7 Dr Kishore Mankar deposes that he examined Yamanappa on 16 42004 at S pm who was brought by PC No 2103 of ,horapur Police with a history of assault The Wound ertiftcate F P3 also ontains the same entries thereby h Va arippa 's ammed '' C' p 'ii 642004 $
10. DrChandrashekhar-PW8 speaks of having examined Basappa PW3 and also Sangappa PWA His version is that he examined Basappa and Sangappa at 130 atm. on 1642O04 and noticed the injuries and issued Ex P4 and Ex P5-Wound Certificates respectively Amongst the two persons, only Basappa had the small injury measuring ¼"x ¼" on the head while Sangappa PWA had no injury. The time at which, he examined him is stated as 130 am on 16A.2004 which is totally in contrast to the evidence tendered by PW9-Sharnappa that he registered the case at 9 pm. and then sent the victims to the hospital. The discrepancy in the evidence has remained an explained without the learned prosecutor making any effort to get it clarified that the time mentioned in the Wound certificate and in the evidence of odors a due t inadvertent mistake of fact herefore iden e has emined unclarified t II date and there is ii reason Ahy e should gnore the contention of accused to t med a den a d pli e t h ut f Ia 9
11. ComIng to the statement of PW.1-Yamanappa and another witness, It shows the Incident occurred at 3.30 p.m. on 16.4.2004 and they were armed with objects like rod, axe, stick and stone. If as alleged accused No.5- Shivappa assaulted Basappa on the head by the stone, accused No.4-Shivakumar had assaulted Basappa over his left hand with iron rod, accused No.2-Sanganagouda assaulted Basappa with a stick over his back and accused No.3-Mallikarjun had assaulted with axe, the injuries would not have been as noticed by the Doctor, but could have been grievous and even homicidal. The version given by PW.1 is undoubtedly an exaggerated version or total falsity. The medical evidence has negated all the allegations made by PW.1 rendering it totally unable to act upon. Similarly, PW.4-Sangappa, daims to have been assaulted and suffered InjurIes, whereas PW.8 in his evidence clearly deposes that he had found no injuries on the person of Sangappa and had Issued certificate vide Ex P5. There is no other evidence, which could be said as revealing incriminating against the accused or proving C',-' A I-..
1 () nexus between their acts and the alleged injuries suffered by the accused,
12. Learned HCGP would vehemently contend that prosecution was expected to establish sufferance of injuries by the victims which they have done. Learned HCGP seems to be fully satisfied with the evidence on record and his assertion shows that the filing of this appeal is the result of nonapplication of mind and ignoring the material on record, It is also necessary to notice at this juncture, the intent and purpose of Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 rRules' for short], It reads thus:
"7. Investigating Officer,(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy 3uoerlntendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into accou•nt his past experience, sense of ability and justice to perceive the implications I' of the case and investigate it along with right lines within the shortest possible time.
(2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thIrty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. (3)
The Home Secretary and the Social Welfare Secretary to the State Government, Director of ProsecutIon, the officer-in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investIgating officer."
13. From Rule 7, It is dear that report regarding offence committed under the Act, shall be investigated by the police officer not below the rank of Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of (1 12 Police/Superintendent of Police after taking Into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. Sub-Rule (2) of Rule 7 further mandates that the Investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority basis within thIrty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police of the State Government. Sub-Rule (3) of Rule 7 requires the Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer-in-charge of Prosecution and the Director General of Police shall review by the end of every qua rter the position of all Investigations done by the investigating officer.
14. ThIs means that the legislative intent was to entrust Investigation regarding offences under the Act to the officer not below the rank of Deputy Superintendent of 13 Police obviously with an intention that he will with his experience, ability and responsibility, investigate the case dispassionately and submit the report realistically. He was required under Sub Rule (2) to submit report to the Superintendent of Police who is required to submIt report to his superior officer. According to Sub Rule (3) report has to be forwarded even to Home Secretary and the Social Welfare Secretary for the purpose of review at every quarter, the position of all investIgation done. This case is example of how mandate of Rule 7 has been flouted and totally contravened. The very fact PW.1O. the then Dy.S.P., Poovayya, whom the investigation was handed over has acted virtuaiiy against the statute without sincerity of purpose.
15. From his testimony, it is evident he had merely collected caste certificate and wound certificate of the compiainant and has done virtually no further investigation. The provision to which I have adverted to requires all Investigations to be conducted in the method 14 as prescribed by the Act and Cr.P.C. It is for ascertainment of the truth or otherwise of the allegations in the report, particularly regarding the alleged offence punishable under the provisions of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. The 10 has failed to notice the intent and purpose of the enactment. While the victim has to be protected against atrocities, false Implication has to be avoided.
16. The Code of Criminal Procedure requires final report to be filed as spelled out In Section 173. 10 has been given unbridled power to investigate about the commission of the crime punishable under the Indian Penal Code or any other law for the time being in force. Undoubtedly, he has to conduct investigation dispassionately and in an unbiased manner for ascertainment of the truth or otherwise of the report. While the guilty shall not escape prosecution, innocent shall not be prejudiced unjustifiably. i.
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17. The evidence of PW1O-Poovaiah, Deputy Superintendent of Police, reveals nothing about the date and time of the occurrence. He has merely repeated what was entered In the FIR and statement of witnesses. He failed to notice the discrepancy in the time at which victims were examined by medical officers, PW7 and PW8. If we go by that version, the offence is alleged to have occurred in the early hours on 16.4.2004 and the victims were examined by those medical officers at 3.30 a.m. Against such entry in the medical records, it shows they were examined 5.30 p.m. on 16.4.2004 and FIR has been lodged at a different time. Report of occurrence has reached the police station at 9.00 p.m. on 16.4.2004. The evidence of the 10 is, only after registering FIR, he sent the victims to the hospital. If that be so, PW7 and PW8 could not have examined the victims at 3.00 a.m. on 16.4.2004.
18. Be that as it may, if there was any inadvertent error in entering the date by the medical officers, It had to b S S 16 be clarified. The prosecutor has also shown leastlnterest in the conduct of trial for clarifying certain discrepancies. It has remained on record till date.
19. Besides, as noticed by sub-rules (2) and (3) of Rule 7, after investigation of the complaint, the 10 is required to submit a report to the superior officer named in the provision, who in turn would submit it to the Home Secretary. There is no evidence to show compliance of sub-rules (2) and (3) of Rule 7. Investigation is slip-shod, truncated and is virtually against other material produce before court.
20. It needs to be reminded that when a person is accused of having committed an offence under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, he is deprived of the benefit of anticipatory bail which is otherwise permissible under Section 438, Cr.P.C. This would show the seriousness with which the investigation has to commence and reach a logical end.
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21. I have already referred to in paragraphs supra to the evidence on record which spells out no incrimInating aspect against the respondent-accused and the trial court has rightly granted them acquittal. The State has questIoned acquittal in this appeal without examIning the lapses committed by its own InvestigatIng officer in the conduct of investigation. It has failed to notice non compliance to the mandatory rules relating to investigation of offences under the special enactment and the action to be taken by the Government when such reports are received. It Is, therefore, desirable to mark a copy of the order to the Director of Prosecutions to ensure that the learned prosecutor who conducted the case under the Act are sensitIzed on this vital issue.
22. In the result, I find no merIt In the appeal. It Is accordIngly dismissed.
Sd/ RIDGE cp/vgh*