Karnataka High Court
Rajappa S/O. Amarappa Halkavatagi vs State Of Karnataka on 6 March, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6th DAY OF MARCH 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRIMINAL APPEAL NO.2685 OF 2010
BETWEEN:
1. RAJAPPA S/O. AMARAPPA HALKAVATAGI
AGE: 50 YEARS, OCC: AGRICULTURE,
2. GULAPPA S/O. SANGAPPA GAGGARI
AGE: 45 YEARS, OCC: AGRICULTURE,
3. HANAMANTH S/O. SANGAPPA GAGGARI
AGE: 32 YEARS, OCC: AGRICULTURE,
4. BASAPPA S/O. SANGAPPA GAGGARI
AGE: 30 YEARS, OCC: AGRICULTURE,
5. MALLAPPA S/O. MARTHANADAPPA GAGGARI
AGE: 32 YEARS, OCC: AGRICULTURE,
6. HANAMANTH S/O. MARTHANDAPPA GAGGARI
AGE: 24 YEARS, OCC: AGRICULTURE,
7. THIPPANNA S/O. HANAMANTH CHAKARI
AGE: 24 YEARS, OCC: AGRICULTURE,
8. SIDDAPPA S/O. GULAPPA GAGGARI
AGE: 18 YEARS, OCC: AGRICULTURE,
9. HANAMANTH S/O. MALLAPPA ANDELI,
2
AGE: 20 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. KARADI VILLAGE, TQ: HUNAGUND,
DIST: BAGALKOT.
...APPELLANTS
(BY SRI. MAHESH WODEYAR, ADV.)
AND:
STATE OF KARNATAKA
BY ILAKAL POLICE STATION
REPTD., BY SPP,
HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. ANTHONY R. RODRIGUES, AGA)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND
ORDER OF CONVICTION DATED 02.06.2010 PASSED BY
THE LEARNED SPECIAL SESSIONS JUDGE, BAGALKOT, IN
SPL.CASE NO.86/2009.
RESERVED FOR JUDGMENT ON : 24.01.2019
JUDGMENT PRONOUNCED ON : 06.03.2019
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
JUDGMENT
This is an appeal preferred by the accused against their conviction and sentence dated 2nd 3 June 2010 passed by the Special (Sessions Judge) Court, Bagalkot in Special Case No.86 of 2009 wherein the accused are convicted for the offences punishable under Sections 143, 147, 323, 355 and 504 read with Section 149 of the Indian Penal Code (hereinafter referred to as the 'IPC') and under Section 3(i)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as the 'SC and ST' Act, for brevity).
2. Brief facts of the case are that on 23.06.2009 when the complainant was in the market place of Karadi village, one Kariyamma and one Shivappa Chalavadi were quarreling with each other. When the complainant tried to pacify the quarrel, at that time, the accused persons questioned him as to why he pacified the quarrel and abused the complainant with filthy language by touching his caste. They assaulted and 4 threatened to kill him. It is alleged that the accused knew that the complainant belonged to scheduled caste. They formed an unlawful assembly with a common object and abused him touching his caste and caused intentional insult to him. They assaulted him with dangerous weapon and caused injury to him. They also used criminal force on him and committed rioting. Therefore, he filed a complaint before the jurisdictional police. A case was registered against the accused for the offences punishable under Sections 143, 147, 148, 323, 324, 355, 504 and 506 read with Section 149 IPC and under Section 3(1)(x) of SC and ST Act. After completing investigation, charge sheet was filed against the accused for the aforesaid offences.
3. The Special Judge held trial of the case and convicted the accused for the offences punishable under Sections 143, 147, 323, 355 and 5 504 read with Section 149 of IPC and under Section 3(i)(x) of the SC and ST Act which reads as follows:
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4. Being aggrieved by the aforesaid judgment of conviction and sentence by the learned Special Judge, the accused have preferred this appeal.
5. Learned counsel for the appellants contended that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The Special Judge has wrongly appreciated the evidence on record. The judgment is perverse and capricious, resulting in miscarriage 8 of justice. The Special Judge wrongly believed the evidence of PWs.1, 4 and 5 who are all highly interested witnesses. It ought to have acquitted the accused of the offences alleged. Learned counsel further contended that there is no evidence on record to show that the accused had committed the offences alleged against them.
There are material contradictions in the first information report and the evidence stated by the witnesses before the Court. As per Ex.P-1- complaint, the assault was said to be with stones and chappals whereas there is a bald allegation by the witnesses that the accused abused him in filthy language. PW-1 has admitted that he was in the business of sale of sheep, accused Nos.7 and 9 had sold sheep to him. Money was not paid and when they demanded money, a false case has been filed against them. None of the witnesses have deposed any specific overt act against the accused. There is a bald allegation of assault and 9 abuse by taking caste. PWs.5, 10, 11 and 13 have not supported the case of the prosecution. PW-8 has also not supported the case of the prosecution. Investigation has been done by an unauthorized officer i.e., Sub-Inspector of Police. The provisions of Rule 7 of the SC and ST Rules, 1995 is a mandatory one and as per the said Rule, it is the Deputy Sub-Inspector who was required to conduct the investigation. But the Dy.S.P has simply endorsed to the investigation which was completely done by the PSI. Therefore, the investigation by the PSI is illegal and the accused could not have been convicted on the basis of the investigation which is not valid. Further the ingredients of Section 3(1)(x) of the SC and ST Act that the incident happened within the public view has not been proved. There is a delay of more than 2 days in filing the complaint. There is material variance in the evidence of the prosecution witnesses which does not corroborate 10 with each other. Hence, learned counsel sought to allow the appeal by acquitting the accused.
6. Learned Additional Government Advocate submitted that the evidence on record clearly prove the guilt of the accused. Names of accused Nos.1 and 2 were mentioned in the FIR. The delay cannot be a ground to acquit the accused. All the accused have committed the offence under common object. The ground that the investigation was done by an unauthorized officer has not been taken before the trial Court. The incident occurred within the public view and therefore, the ingredients of Section 3(1)(x) of the Act are also proved beyond reasonable doubt. Therefore, AGA sought for dismissal of the appeal.
7. Having heard the learned counsel for the appellants and learned Additional Government Advocate, the points that arise for consideration is 11
1. Whether all the accused Nos.1 to 9 had formed an unlawful assembly under a common intention to commit offences as alleged in the charge sheet?
2. Whether the prosecution had proved beyond any reasonable doubt that the accused Nos.1 to 9 committed the offences punishable under Sections 143, 147, 323, 355 and 504 of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in furtherance and under a common object of unlawful assembly so as to attract section 149 of IPC?
3. Whether the investigation conducted in this case is in contravention of Rules 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995?
My answer to the above points are as under:
1. In the negative.
2. In the negative so far as offences punishable under Section 143, 147 read with Section 149 of the Indian Penal Code and under section 3(1)(x) of the Scheduled Castes and the 12 Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the affirmative in respect of Accused Nos.1, 2 and 5 for the offences punishable under Sections 323, 355 and 504 read with section 34 of the Indian Penal Code.
3. In the Affirmative.
8. PWs.18 and 20 are the Investigating Officers. According to the evidence of PW-18-
Deputy Superintendent of Police, he had gone to Navalgund court to give evidence. He received information about the incident of the present case. Therefore, he directed the Sub-Inspector of Police to go and maintain the law and order and to collect the evidence. Then after returning to Bagalkot, on the same night, he proceeded to investigate another case in Crime No.74 of 2009. This incident had occurred on 23.06.2009. A complaint was filed before the Investigating Officer at about 11.00 p.m. whereas the Dy.S.P. initially takes the further investigation on 13 25.06.2009. By that time, PW-20-Investigating Officer had conducted spot panchanama as per Ex.P-4 and seized the material objects as per M.O.3. He had recorded the statement of CWs.2 to 5, 14, CW-14, PWs.10, 11, 16 and 19. Hence, there was nothing left for the Dy.S.P.to investigate in the matter. He has recorded the statement of few witnesses namely PWs.12, 13 and obtained the caste certificate. He has arrested some of the accused persons, obtained wound certificate as per Ex.P-11, obtained caste certificate and arrested other accused persons, who had already obtained anticipatory bail. He has recorded the voluntary statement of accused No.1 and recovered the right leg slipper under mahazar Ex.P-5. Thereafter, filed a charge sheet. In the cross-examination, the Investigating Officer has specifically admitted that the witnesses admit before him as what they had stated before the PSI. That does not become the statement 14 recorded by him. He has not conducted any spot panchanama. He further deposed that he had not handed over any portion of the investigation because he was involved in giving evidence in another case before other court and was engaged in investigation of heinous crime. He had authorized PSI to do further investigation.
9. On perusal of Rule 7 of the Rule, an offence committed under the provisions of SC and ST Act shall be investigated by any police officer not below the rank of Dy.S.P. Further, an investigating officer shall be appointed by the State Government, Dy.S.P. Hence, in view of the aforesaid Section, the Dy.S.P could not have directed the PSI to investigate the case. The PSI had completed major portion of investigation by the time the Dy.SP took further investigation. Therefore, the investigation made by the PSI i.e.PW-20 is an unauthorized investigation, as he 15 was not authorized under the aforesaid Act. The investigating officer had no power to delegate the investigation in respect of a crime registered under the provisions of SC and ST Act.
10. PW-1 in his examination-in-chief has deposed that on the relevant day, Shivappa and Kariyamma were quarrelling with each other. He intervened and pacified the quarrel. At that time, accused Nos.1 and 2 questioned him as to why he has come and abused him as "nee nyakale banda le hole sule magane". While he was near the pan shop of one Hussain Sab, along with CW-6- Ramanna Chalawadi, accused Nos.1 and 2 came there and along with them immediately accused No.3 to 9 also came. Accused No.1 assaulted PW- 1 on his ribs and back with chappal. Accused Nos.2 and 5 assaulted with stones on his ribs and face. Other accused assaulted him with hands and abused him as "hole sule magane". The witnesses 16 Ramanna Durgappa, Sangappa and Mallappa came and rescued him. Though he went to the police station, he did not file a complaint on the ground that the elders in the village would resolve the matter. Since it was not compromised, therefore, on the next day, he went to the police station at about 10.00 am and lodged a complaint as per Ex.P-1. He had taken treatment in the hospital. Stones and chappal used for commission of the offence were seized as per M.Os.1 and 2. Though in the cross examination PW-1 has admitted that he sells sheep, he denied that all the accused are rearing sheep. He denied that accused Nos.1 and 9 had transaction with him and he was due to pay any amount to them. He denied that he has filed a complaint against one Ramanna Kambali and on his instigation he has filed this complaint against the accused. He admits that there are about 15 shops in and around in his village at Basaveshwara 17 Circle and those shops will be kept open on sandy day.
PW-2 partly supported the case of the prosecution by identifying the accused as the person who were quarreling with PW-1. The accused abused and beat PW-1 with hands. He has further deposed that he has not deposed before the police that the accused assaulted by using slipper and stones and so also abusing the complainant by touching his caste.
PW-3 is another eyewitness. According to him, the complainant had pacified the quarrel between Shivappa and Kariyavva. When the accused had caught hold of Shivappa, PW-1 went and rescued him and when PW-1 was near the pan shop of Hussain Sab, the accused went there and assaulted the complainant. Accused No.1 assaulted PW-1 with Chappal. Accused Nos.2 and 5 assaulted PW-1 with stones and other accused 18 assaulted PW-1 with hands. They also abused him as " Hole Sule Magane". He has further deposed that himself and other witnesses rescued Pw-1. He has identified the stones and chappal marked as M.Os.1 to 3 which were used for the commission of the offence. He is a relative of the complainant and so also Shivappa is relative of PW-1.
PW-4 has stated that he saw the accused assaulting PW-1 with hands, chappal and stones. Accused No.1 assaulted PW-1 with chappal. One Gulappa and Mallappa, who are accused Nos.2 and 5 respectively assaulted PW-1 with stones and other accused persons assaulted Yallappa-PW-1 with hands and abused him as "Holeya". He has identified M.Os.1 and 2. He admits that he is a friend of the complainant.
PW-5 has deposed that he witnessed the incident of quarrel between the accused and PW-1 19 and later when he was rescuing PW-1, some one slapped PW-1 and they pacified the quarrel. Thereafter, PW-1 sat near the pan shop and he was also sitting at a distance. At that time, he came to know that galata took place and PW-1 was beaten. He denied that he has stated before the police as per Ex.P-3 about the incident in question. At this stage, this witnesses was treated as hostile and was cross-examined by the prosecution.
PW-6 is a panch witness to mahazar Ex.P-4 under which M.Os.2 and 3 were seized.
PW-7 is also a panch witness to mahazar Ex.P-4 and seizure of M.O.s 2 and 3.
PW-8 and 9 are panch witnesses to seizure panchanama of slipper from the accused under Ex.P-5. They have not supported the case of the prosecution.
20
PWs.10 and 11 are the hearsay witnesses. PW-10 is a business man and PW-11 is the owner of the tea shop which is near the place of incident. They have deposed that they have not given any statement before the police regarding the incident and that they came to know about the incident as per Exs.P-6 and 7. Both have not supported the case of the prosecution. Admittedly, they are hearsay witnesses.
PW-12 is the pan shop owner. He has deposed in his evidence that accused Nos.2 and 3 came to their shop and also assaulted PW-1. Thereafter, other accused also came and assaulted PW-1 with stones and out of them accused Nos.2 and 3 assaulted PW-1 with stones and other accused assaulted PW-1 with hands and abused him by touching his caste. He has identified MOs.2 and 3. He has further deposed in his examination in chief that he has not stated before 21 the police that accused No.1 assaulted the complainant with chappal but he has deposed that he had stated before the police about accused Nos.2 and 5 assaulting PW-1 with stones.
PW-13 has denied that he has stated before the police about the incident as per Ex.P-8.
PW-14 has deposed that Shivappa stamped her leg in the sandy and she had quarreled with him and PW-1 had come and pacified the quarrel. She is not a witness to the incident in question. In her cross-examination she has deposed that she came to know that the accused beat PW-1.
PW-15 is the photographer.
PW-16 is a witness who carried FIR.
PW-17 is the doctor who found 4 injuries and issued wound certificate as per Ex.P-11 stating that the injuries are simple in nature. He has 22 deposed that if a person falls on the surface facing sky, injury Nos.3 and 4 caused on the back of the injured could be caused.
PW-18 is the investigating Officer. PW-19 is a person who had drafted Ex.P.1. Pw-20 is the investigating officer who registered the crime on the basis of the complaint by PW-1 as per Ex.P-1 and lodged FIR as per Ex.P14. He has also visited the scene of offence and filed charge sheet.
On perusal of the above said evidence on record, the overt act that has been spoken to by PW-1 is only with respect of accused Nos.1, 2 and 5 i.e assault with slippers on his left rib and back and assault by accused Nos.2 and 5 with stones. Regarding other accused, a bald allegation of overt act is made that they beat PW-1 with hands. 23
11. As regards abuse by touching the caste of PW-1 is concerned, it is deposed against all the accused baldly without pin pointing particular accused. Slippers and the stones have been identified as Mos.2 and 3. The evidence of PW-2 does not corroborate the evidence of PW-1 with regard to the assault with slippers and stones is concerned. It also does not corroborate with regard to abusing PW-1 by touching his caste. Mere bald statement that accused abused PW-1 by touching his caste itself would not amount to an offence under Section 3(1)(x) of SC and ST Act. within in the public view. Moreover, he is found to be a friend of the complainant. Contradiction has occurred in his evidence as per Ex.P-2 and P-2(a). The evidence of PW-1 is corroborated to an extent of assault by accused Nos.1, 2 and 5. With regard to other accused abusing and assaulting Pw-1 is concerned, a bald statement has been made. He is a close relative of the complainant. 24 His presence at the spot is not shown to be natural and it could be by chance.
12. PW-4 also speaks about assault by accused Nos.1, 2 and 5. As regards abuse by the accused is concerned, particular name of the accused is not mentioned. PW-5 has not supported the case of the prosecution. PWs.6 and 7 are the panch witnesses to Ex.P-4 and the said portion of the investigation has been done by the PSI who is not authorized to conduct the case. Pw-8 has also not supported the case of the prosecution. PW-9 has not supported the case of the prosecution with regard to recovery of slipper. PW-10 has not supported the case of the prosecution. PW-12 has stated that accused No.2 assaulted PW-1 with stone and accused No.9 assaulted PW-1 with stone and other accused with hands. He also does not specifically say any overt act against any one of the accused and does not 25 speak about specific abuse by the accused. PW- 13 has not supported the case of the prosecution and contradiction is marked at Ex.P-8. PW-14 is not an eyewitness to the incident. PW-15 is a photographer to Ex.P-9. PW-17 is the doctor who treated the complainant. Though PSI was not authorized to conduct investigation with regard to the offence punishable under SC and ST Act but his efforts could be appreciated with regard to the investigation made by him in this regard.
13. From the aforesaid evidence on record, I find that the prosecution has proved beyond reasonable doubt that accused 1, 2 and 5 assaulted PW-1. Looking at the nature of injuries, particularly, the assault on the back and left rib of PW-1 and tenderness over the occipital region sustained by PW-1, the Special Judge has acquitted the accused of the offences punishable under Sections 148, 324 and 506 read with 26 Section 149 of IPC and had convicted all the accused of the offences punishable under Sections 143, 147, 323, 355 and 504 read with Section 149 of IPC.
14. Now on appreciation of the evidence on record, I find that the prosecution has miserably failed to prove that the accused by forming an unlawful assembly had committed the offence. Looking at the overt acts deposed by the witnesses, it is specifically only against accused Nos.1, 2 and 5 and as against other accused, it is only bald in nature. Further, assaulting a person with slippers amounts to dishonour. offences that are proved against accused Ns.1, 2 and 5 are under Sections 323, 355 and 504. So far as other accused persons are concerned, there is no clinching evidence on record. Therefore, the benefit of doubt has to be extended to them. 27
15. Acquittal of the accused for the offences punishable under Section 148, 324 and 506 is concerned, the prosecution has not preferred any appeal against the said acquittal.
16. No pre-existing dispute is found to be there between the parties so as to draw a presumption under Section 8 of the SC and ST Act. Further, the entire investigation made with regard to the offense under SC and ST Act is concerned, the same is totally illegal as it was done by an officer who was not authorized to do so. The Dy.S.P had no power to delegate the investigation on the ground that he was busy with the other investigation. There was no heinous offence so as to hold that there was possibility of destruction of evidence and therefore he allowed PSI to do the investigation. After all, it was a simple case of quarrel and assault. Therefore, the investigating officer should have done the investigation in 28 accordance with Rule 7 of the Rules. Moreover the caste abuse does not appear to be proved beyond reasonable doubt. The evidence deposed by the witnesses do not corroborate with each other. Merely stating that PW-1 was abused by taking his caste does not amount to an offence. In fact what exactly the words used should have been deposed. In addition to that, the accused cannot be convicted for the offence under Section 3(1)(x) of the SC and ST Act as the investigation has been done by PSI who is not an authorized person to investigate the case. The fact that the subsequent investigation was made by the Dy.S.P. does not cure the defect that has occurred or would enure to the benefit of the prosecution.
17. As regards other offences under Sections 323, 355 and 504 IPC is concerned, overt act spoken against only 3 accused persons would only show that there was common intention. 29 Therefore, they are liable to be convicted for the offences punishable read with Section 34 and not under 149 of IPC. Hence, conviction of accused for the offences punishable under Section 355, 504 and 323 shall be read with Section 34 IPC.
Having regard to the evidence and material on record, I answer the point No.1 in the negative. Point No.2 partly in the negative so far as offences punishable under Sections 143, 147 read with Section 149 of the Indian Penal Code and under section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned. Point No.2 is partly answered in the affirmative in respect of accused Nos.1, 2 and 5 for the offences punishable under Sections 323, 355 and 504 read with section 34 of the Indian Penal Code. Point No.3 is answered in the affirmative.
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Accordingly, the appeal is allowed in part. The judgment of conviction and sentence dated 2 n d June 2010 passed by the Special (Sessions Judge) Court, Bagalkot, in Special Case No.86 of 2009 is partly allowed. All the accused are acquitted of the offences punishable under Sections 143 and 147 of IPC and of the offence punishable under Section 3(1)(x) of the SC and ST (Prevention of Atrocities) Act, 1989.
The impugned judgment of conviction and sentence passed against accused Nos.1, 2 and 5 for the offences punishable under Sections 323, 355 and 504 of IPC is confirmed by applying Section 34 of IPC instead of Section 149 IPC.
Fine amount, if any, paid by the accused for the acquitted offences shall be refunded to them.
Send back the records to the trial Court with copy of the Judgment.
Sd/-
Kmv JUDGE