Karnataka High Court
The State Of Karnataka vs Kenchappa Rayappa Yettingud on 24 November, 2022
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.2554 OF 2012
BETWEEN:
THE STATE OF KARNATAKA,
THROUGH SAUNDATTI POLICE STATION
REPRESENTED BY ADDL. STATE
PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH,
DHARWAD.
...COMPLAINANT/APPELLANT
(BY SMT. GIRIJA S HIREMATH, HCGP)
AND
1. KENCHAPPA RAYAPPA YETTINGUD,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O MATOLLI, TALUK: SAUNDATTI,
DISTRICT: BELGAUM
2. SHIVARAYAPPA KENCHAPPA YETTINGUD,
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O MATOLLI, TALUK: SAUNDATTI,
DISTRICT: BELGAUM
3. SOMAPPA KENCHAPPA YETTINGUD,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O MATOLLI, TALUK: SAUNDATTI,
DISTRICT: BELGAUM
...ACCUSED / RESPONDENTS
(BY SRI. LINGESH V KATTIMANI, AMICUS CURIAE)
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THIS CRIMINAL APPEAL IS FILED U/S 378 (1) & (3) OF
CR.P.C. SEEKING TO 1) GRANT LEAVE TO APPEAL AGAINST
JUDGMENT AND ORDER OF ACQUITTAL DATED: 26.07.2011
PASSED IN SPECIAL (III ADDITIONAL SESSIONS) JUDGE,
BELGAUM, AT: BELGAUM FOR OFFENCE UNDER SECTIONS 354,
427, 504, 506, 509 R/W 34 OF IPC AND SECTION 3(I)(II) OF
THE S.C./S.T(PREVENTION OF ATROCITIES) ACT, 1989; 2) SET
ASIDE THE ORDER OF ACQUITTAL DATED: 26.07.2011 PASSED
IN SPL.C.NO.171/2010 BY THE SPECIAL (III ADDITIONAL
SESSIONS) JUDGE, BELGAUM, AT: BELGAUM FOR OFFENCE
UNDER SECTIONS 354, 427, 504, 506, 509 R/W 34 OF IPC
AND SECTION 3(I)(II) OF THE SCHEDULED CASTES AND THE
SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT,
1989; AND CONSEQUENTLY CONVICT THE ACCUSED FOR THE
OFFENCE WHICH HE IS CHARGED.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 29.09.2022, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the State challenging the acquittal of the respondent Nos.1 to 3 for the offences punishable under Sections 354, 427, 504, 506, 509 r/w Section 34 I.P.C and Section 3(1) (x) and (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the SC & ST Act' for short). -3-
2. For the sake of convenience, the parties are referred to by their rank before the Trial Court.
3. A charge sheet came to be filed against accused Nos.1 to 3 alleging that accused belong to Hindu Lingayath community, whereas complainant Smt.Rukmawwa Talawar and her children belong to Hindu Madar coming under Scheduled Caste category. Accused No.1 used to visit the house of one Shidlavva Talawar which is situated near the house of complainant and while proceeding in front of the house of complainant, he used to pass lewd remarks against her which she used to protest. In this background, on 07.05.2010 at about 6.00 p.m, accused No.2 pulled the hand of complainant's daughter Nethravathi, aged about 14 years and tried to outrage her modesty, saying that she belong to Holaya community and that she should be subservient to him and she should love him or else he is going to throw acid on her face and kill her. It is further alleged that on 16.05.2010, at 7.30 p.m. accused Nos.1 to 3 gathered in front of the house of complainant, abused complainant and her daughters referring to their caste and demanded that the daughters of complainant should be subservient to accused -4- Nos.2 and 3. It is further alleged that on 20.05.2010, at 7.30 p.m. all the accused persons gathered in front of the house of complainant and pelted stones on the roof and again on 21.05.2010, at 7.00 a.m. once again accused persons gathered in front of the house of complainant and pelted stones on the roof causing damage to the tiles. They also gave threat to the life of complainant by referring to their caste and thereby accused Nos.1 to 3 committed offences punishable under Sections 354, 427, 504, 506, 509 r/w Section 34 I.P.C and Section 3(1) (xi) of SC & ST Act.
4. In respect of the incident, a complaint came to be filed by Smt.Rukmawwa Shidleppa Talawar alleging that she is living along with her four children. The house of one Smt. Shidlevva Durgappa Talawar is situated near her house. Accused No.1 - Kenchappa Rayappa Yettinagudda is in the habit of visiting the house of said Smt.Shidlevva Durgappa Talawar. While so visiting her house and passing in front of the complainant's house, accused No.1 Kenchappa used to sing vulgar songs referring to the complainant and saying whether she is 'Garathi Gangavva' (UÀgÀw UÀAUÀªÀé) i.e., a chaste woman. However, she used to tolerate the same. -5-
4.1 It is further stated in the complaint that while complainant's daughter Nethravathi was proceeding to School, accused No.2 who is no other than the son of accused No.1 used to tease her that she belongs to Scheduled Caste community and she should be subservient to him and insisted her to love him. Similarly, on 07.05.2010, at 6.00 p.m. while Nethravathi was returning from Kirana shop, accused No.2 pulled her hand saying that she should love him or else he is going to throw acid and spoil her face and would see how she would cry and he is going to kill her and thereby gave threat to her life. Complainant brought this fact to the notice of Erappa Adaki and Mallappa Angadi and they advised both accused Nos.1 and 2 without any result. However, accused continued to trouble them.
4.2 It is further stated in the complaint that on 16.05.2010, at 7.30 p.m. accused No.1 - Kenchappa, accused No.2 - Shivarayappa and accused No.3 - Somappa came in front of the house of complainant and started abusing them referring to their caste and said that her daughter should be left in the name of son of accused No.1 -6- and they challenged how complainant is going to perform the marriage of her daughter and demanded who is dare enough to give complaint against them and left the place.
4.3 Again on 20.05.2010 at 7.30 p.m. all the three accused persons pelted stones and broke the roof tiles of the house of the complainant and abused referring to her caste. Once again on 21.05.2010 during morning hours all the accused persons pelted stones on her house and gave threat to their life and after consulting the elders, she is filing the belated complaint.
5. Based on the complaint, a case was registered against accused Nos.1 to 3. During investigation, the Investigating Officer visited the spot, drawn mahazar and seized stones and tile pieces. He has also prepared a rough sketch of the scene of occurrence. He has recorded the statement of the witnesses. Got prepared the sketch of the place of the incident. He also collected information regarding the caste of the complainant and her family members and also accused persons. Accused Nos.1 to 3 were arrested and produced before the Court and remanded to judicial custody. Subsequently, they secured bail. After completing the -7- investigation, charge sheet came to be filed against accused Nos.1 to 3.
6. The Special Court has framed charge against accused Nos.1 to 3 for the offences punishable under Sections 354, 427, 504, 506, 509 r/w Section 34 I.P.C, Section 3(1) (xi) and 3(1) (x) of SC & ST Act.
7. Accused have pleaded not guilty to the charge and claimed trial.
8. In order to prove the allegations against the accused, prosecution has relied upon evidence of PWs-1 to 12, Exs.P1 to 6 and MOs 1 and 2.
9. During the course of their statement under Section 313 Cr.P.C, accused Nos.1 to 3 denied the incriminating evidence led by the prosecution.
10. Accused have not chosen to lead defence evidence.
11. Vide impugned judgment and order the trial Court acquitted accused Nos.1 to 3, which is being challenged by the State in this appeal.
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12. During the course of arguments, learned High Court Government Pleader submitted that the findings of the trial Court are contrary to law, facts and probabilities of the case. The learned Special Judge has passed the impugned judgment and order mechanically without application of judicious mind. He ought to have held that the evidence of PWs-1 to 3 and 9 inspires confidence to convict the accused.
12.1 The learned HCGP would further submit that the learned Special Judge has failed to appreciate the fact that the prosecution has explained the delay in filing the complaint. The evidence placed on record unerringly points towards the guilt of the accused and consequently, the acquittal is not justified and prays to allow the appeal.
13. On the other hand learned counsel representing accused submits that based on the oral and documentary evidence, the trial Court has come to the correct conclusion that the charge levelled against accused are not proved beyond reasonable doubt and acquitted them and it is not a fit case to interfere in exercise of the Appellate jurisdiction and prays to dismiss the appeal.
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14. Heard elaborate arguments of both sides and perused the record.
15. The fact that PWs-1 to 3 belong to Hindu Madar community coming under the Schedule Caste category and accused Nos.1 to 3 belong to Hindu Lingayath caste is not in dispute. This fact is spoken to by PWs-1 to 3, who are the aggrieved persons and also PW-4-Mallappa Angadi, PW-6 - Shidlavva Talawar, PW-9 - Erappa Adaki and PW-10 - Yellappa Goravanakolla. PW-11 - Shivakumar Patil, who is the Investigating Officer has collected certificate at Ex.P-5 from the Tahsildar, Savdatti to the effect that PWs-1 to 3 belong to Hindu Madar community coming under SC category and that accused Nos.1 to 3 belong to Hindu Lingayath community coming under IIIB category. Thus, through the evidence of these witnesses, prosecution has proved that PWs-1 to 3 belong to Hindu Madar community coming under SC category.
16. It is the definite case of the prosecution that the houses of PWs-1 to 3, 6 and 9 are situated in Janatha Plots (ºÀjd£À PÉÃj) and while visiting the house of PW-4, accused No.1 used to pass in front of the house of PWs-1 to 3. The
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testimony of PWs-1 to 3 establish that their house is situated in Janatha Plots (ºÀjd£À PÉÃj). Even though PW-6 - Shidlavva Talawar has turned hostile and not supported the case of the prosecution with regard to accused No.1 visiting her house and with regard to accused Nos.1 to 3 harassing PWs-1 to 3, she has supported the prosecution case with regard to the fact that she and PWs-1 to 3 are residing in houses situated in Janatha Plots (ºÀjd£À PÉÃj) of Mattolli. A suggestion is made to PW-2 that Shidlavva Talawar is not residing in Mattolli and she has left the village about three years back. However, accused have not disputed the evidence of PW-6 Shidlavva Talawar that her house and house of PWs-1 to 3 are situated in the same lane. They have also not made any suggestion to PW-6 Shidlavva Talawar that since three years, she is not residing in Mattolli.
17. According to the prosecution, PW-9 - Erappa Adaki is also resident of Janatha Plots (ºÀjd£À PÉÃj) of Mattolli and he has witnessed the incident dated 07.05.2010. During the course of his evidence, he has deposed that his house is situated opposite to the house of PWs-1 to 3 whereas the house of PW-6 - Shidlavva Talawar is situated adjacent to
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the house of PWs-1 to 3. During his cross-examination PW-9 has denied that his house is situated in Lingayathara Oni (°AUÁ¬ÄvÀgÀ NtÂ) and that his house is not situated in Janatha plots (ºÀjd£À PÉÃj). During her cross-examination PW-2 has denied that the house of PW-9 Erappa Adaki is not situated in Janatha plots (ºÀjd£À PÉÃj). It is not in dispute that the house of accused Nos.1 to 3 is situated in Hakari Oni (ºÀPÁj NtÂ) of Mattolli, which is away from the Janatha Plots (ºÀjd£À PÉÃj). In fact a suggestion is made to PW-1 that while her house is situated in Harijan Colony (ºÀjd£À PÉÃj), accused persons are residents of Hakari Oni (ºÀPÁj NtÂ). Both PW-1 and PW-9 have denied that PW-9 is residing in Lingayathara Oni (°AUÁ¬ÄvÀgÀ NtÂ). Their evidence prove that the house of PW-9 is situated opposite to the house of PWs-1 to 3. In fact PW-9 has deposed that though he is native of Hosur, he is permanently residing at Mattolli. Even though a suggestion is made to PW-1 that PW-9 is residing at Hosur, which she has denied, no such suggestion is made to PW-9. Even the rough sketch at Ex.P7 prove the fact that the houses of PWs-1 to 3, PW-6 Shidlavva Talawar and PW-9 Erappa Adaki are situated
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in Janatha Plots (ºÀjd£À PÉÃj). Thus, the evidence of PWs-1 to 3, 6 and 9 prove that they are residing at Janatha Plots (ºÀjd£À PÉÃj), whereas accused Nos.1 to 3 are residing at Lingayathara Oni (°AUÁ¬ÄvÀgÀ NtÂ) which is away from the Janatha Plots (ºÀjd£À PÉÃj).
18. It is definite case of the prosecution that accused No.1 used to visit the house of PW-6 Shidlavva Talawar and while passing in front of the house of complainant, he used to make lewd remarks referring to complainant by singing a Kannada song "¤Ã£ÀÄ UÀgÀw UÀAUÀªÀÄä K£ÀÄ" which means whether she is a chaste woman. It is pertinent to note that neither in the complaint nor during the course of evidence of PWs-1 to 3 it is stated as to why accused No.1 used to visit the house of PW-6 Shidlavva Talawar. During their cross-examination the defence has questioned PW-2 Nethravathi Talawar and PW-3 Pavithra Talawar who are aged 15 and 17 years as to the purpose for which accused No.1 used to visit the house of PW-6 Shidlavva Talawar. Of course they have expressed their ignorance on this aspect. However, the defence has purposely not chosen to question complainant who is an
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adult woman as to the purpose for which accused No.1 used to visit the house of PW-6 Shidlavva Talawar. A clue on this aspect is available in the suggestion made by the prosecution to PW-6 Shidlavva Talawar that accused No.1 was having illicit relationship with her and in that connection, he was visiting her house. Of course, one cannot expect PW-6 Shidlavva Talawar to admit the said fact.
19. Though PWs-1 to 3 are cross-examined at length, as to their evidence regarding accused No.1 passing in front of their house while visiting the house of PW-6 Shidlavva Talawar, the defence is not able to dislodge their evidence on this aspect. Absolutely, PWs-1 to 3 are not having any ill will or motive to falsely depose about accused No.1 passing in front of their house while visiting the house of PW-6 Shidlavva Talawar. Their evidence prove the fact that while passing in front of the house of PWs-1 to 3 accused No.1 used to make lewd remarks against the complainant. Though accused No.1 has denied that he used to visit the house of PW-6 Shidlavva Talawar, he has no explanation as to passing in front of the house of complainant. Even if it is held that the testimony of PWs-1 to 3 is not sufficient to prove that
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accused No.1 was visiting the house of PW-6 Shidlavva Talawar, their evidence prove the fact that while passing in front of their house, he used to make lewd remarks against complainant/PW-1.
20. Even though PW-4 Mallappa Angadi is not a witness to accused No.1 making lewd remarks against PW-1 while passing in front of her house, his evidence reveal that after coming to know about it and also about accused No.2 harassing PW-2 Nethravathi, he and PW-9 Erappa Adaki advised accused persons not to harass them and thereby, he came to know about the said fact. Though PW-9 Erappa Adaki has not directly stated about accused No.1 making lewd remarks against complainant, he has specifically deposed that he and PW-4 Mallappa Angadi advised accused No.2 not to harass PW-2 Nethravathi Talawar and in addition they also advised accused No.1. Thus, the evidence of PWs-4 and 9 supports the testimony of PWs-1 to 3 that accused No.1 used to make lewd remarks against PW-1 Rukmawwa Talawar and in that connection, they had advised accused No.1.
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21. It is the definite case of the prosecution that in addition to accused No.1 making lewd remarks against the PW-1 Rukmawwa Talawar, accused No.2, who is no other than the son of accused No.1 used to harass PW-2 Nethravathi Talawar, who was aged about 14 years and studying in 9th standard, while she was going to and returning from school, by demanding that she should love him. He used to say that since they belong to Holeyara community, they should be subservient to him and in fact on 07.05.2010, at about 6.00 p.m., while PW-2 Nethravathi Talawar was returning from Kirana shop, accused No.2 pulled her hand demanding that she should love him or else he is going to throw acid on her face and see how she is going to live and on hearing the commotion, PW-1 Rukmawwa Talawar and PW-9 Erappa Adaki rushed to the spot and rescued her and in this regard, PWs-4 and 9 advised accused Nos.1 and 2.
22. PWs-1 to 3 have deposed to this effect. Even though PWs-1 and 3 are not eye witnesses to the accused No.2 harassing PW-2 Nethravathi Talawar while she was going to and returning from the school and PW-3 is not an
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witness to the incident dated 07.05.2010, as immediate members of her family, they have come to know about the same. PW-9 Erappa Adaki is the witness to the incident dated 07.05.2010 and deposed that on that day around 6.00 p.m., while PW-2 Nethravathi was returning from Kirana shop, accused No.2 pulled her hand and when she cried for help, he and PW-1 Rukmawwa Talawar rescued her. The defence has cross-examined PW-9 suggesting that he is not at all resident of Janatha Plots (ºÀjd£À PÉÃj), thereby, suggesting that he is not a witness to the said incident. As already discussed the prosecution has proved that the house of PW-9 is situated in Janatha Plots (ºÀjd£À PÉÃj) opposite to the house of PWs-1 to 3.
23. It is pertinent to note that during the course of her evidence, PW-2 Nethravathi has deposed that on 07.05.2010, in addition to pulling her hand, accused No.2 also squeezed her body. This fact is not forthcoming in the complaint as well as statement of PW-2 Nethravathi and also PWs-1 and 9 have not deposed to this effect. As held by the Hon'ble Supreme Court in various pronouncements including
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in the case of Mukesh Vs. State (NCT of Delhi)1, an FIR cannot be an encyclopedia of the case of prosecution. On hearing the cries of PW-2 Nethravathi Talawar, when PWs-1 and 9 rushed to her rescue, it cannot be expected that accused No.2 would still continue to squeeze her body and therefore, in all probabilities, PWs-1 and 9 might not have observed what happened before they reached the spot. Since complaint came to be lodged in respect of series of incidences, PW-2 Nethravathi Talawar might not have disclosed the fact of accused No.2 squeezing her body on 07.05.2010 and while giving evidence, she has disclosed the said fact. It is to be remembered that when the complaint was filed, she was a girl of 14 years and having regard to the fact that complaint came to be filed belatedly after 3 more incidents took place and the probability of she having not paid attention to this detail cannot be ruled out. This itself would not make her evidence doubtful or unreliable. Thus from the above discussion I hold that through the testimony of PWs-1 to 3 and 9, the prosecution has proved that on 07.05.2010 at about 6.00 p.m., while PW-2 Nethravathi Talawar was returning from Kirana shop, accused No.2 1 (2017) 6 SCC 1
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wrongfully restrained her and pulled her hand and also squeezed her body and gave threat that if she fails to love him, he is going to splash acid on her face and kill her.
24. It is further case of prosecution that the fact of accused Nos.1 and 2 harassing PWs-1 and 2 was brought to the notice of PWs-4 Mallappa Angadi and PW-9 Erappa Adaki, who also belong to forward community and even though they advised accused Nos.1 and 2, they did not stop the harassment and on the other hand, on 16.05.2010, 20.05.2010 and 21.05.2010, accused Nos.1 to 3 came near the house of complainant, abused them in filthy language referring to their caste and also threw stones on their house causing damage to the tiles.
25. Speaking with regard to the incident dated 16.05.2010, PWs-1 and 2 have deposed that at around 7.30 p.m., accused Nos.1 to 3 came near their house, abused them referring to their caste and they went to the extent of saying that as they belong to Holeyara community, the daughters of complainant should be subservient to the sons of accused No.1 and they will see how complainant is going to perform the marriage of her daughters and they will also
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see who is going to file complaint against them. It is pertinent to note that though in her examination-in-chief PW-3 has failed to depose with regard to the incident dated 16.05.2010, during her cross examination, she has spoken to about the said incident. Thus, the evidence of PWs-1 to 3 prove the incident dated 16.05.2010.
26. Speaking with regard to the incident dated 20.05.2010, PWs-1 and 2 have deposed that on that day at 7.30 p.m, accused Nos.1 to 3 came near their house and pelted stones and damaged the roof tiles. They demanded that the youngest daughter of the complaint i.e., PW-2 Nethravathi should be left in the name of accused No.2. They abused them referring to their caste and challenged as to how complainant is going to perform the marriage of her daughters. It is pertinent to note that in the complaint, complainant has not stated that at the time of the said incident, accused Nos.1 to 3 were drunk. However, she has deposed this fact before the Court. Though PW-2 has also spoken to about the said incident, she has deposed as though the incident dated 20.05.2010 took place on the next day of the incident dated 16.05.2010. However, her
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deposition makes it evident that she is referring to the incident dated 20.05.2010. It appears since a series of incidences took place, PW-2 who was aged about 14 years was not able to recollect the exact date.
27. PW-3 Pavithra has also deposed with regard to the incident dated 20.05.2010 and stated that at 7.30 p.m, accused persons came and abused them with in filthy language referring to their caste. The evidence of PWs-1 and 2 prove that when the incident dated 20.05.2010 took place, it was evening. During her cross-examination, PW-1 has denied that the incident dated 20.05.2010 and 21.05.2010 never took place and accused did not threw stones and damage the tiles of their house in an inebriated condition. It is pertinent to note that though PW-3 failed to depose with regard to the incident dated 16.05.2010 and 21.05.2010, during her cross examination, she has specifically referred to these dates and deposed that on 07.05.2010 at 6.00 p.m. accused No.2 pulled the hands of PW-2 Nethravathi demanding that she should love him and that as belonging to Hindu Holayara community, she should be subservient to him. She has specifically deposed that again on 16.05.2020,
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in the evening, all the three accused persons came near their house and demanded the complainant that her youngest daughter should be left to the name of accused No.2 and that she should be at the feet of his son. Again on 20.05.2010, accused Nos.1 to 3 came and after abusing them, threw stones on their house. She has specifically deposed that on 21.05.2010 in the morning, once again all the accused persons came near their house, threw stones and also abused them by referring to their caste.
28. Thus the testimony of PWs-1 to 3 establish the fact that they were being harassed by accused Nos.1 to 3 for belonging to Scheduled Caste community and accused were abusing and demanding that PW-2 Nethravathi should be left in the name of accused No.2 and that as belonging to Hindu Holayara community, they should be subservient to them and the high handed attitude of the accused persons was mainly on account of PWs-1 to 3 belonging to Schedule Caste community. It has come in the evidence of PW-1 that her husband is working as a Conductor and it appears because of this reason, he was not available in the house on daily basis and that gave an advantage to the accused
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persons to harass the women folk in the house. Inspite of there being minor discrepancies and contradictions in the evidence of PWs-1 to 3, through their testimony and supported by the evidence of PWs-4 and 9, the prosecution has proved the allegations against accused Nos.1 to 3 beyond reasonable doubt.
29. The accused persons have taken up a defence that in village panchayath election, one Yellavva Talawar a relative of complainant and Neelavva Harijan had contested and in the said election, complainant supported Yellavva Talawar whereas accused persons supported Neelavva Harijan and because of this reasons, complainant has chosen to file a false complainant against the accused persons. Though PWs-1 and 2 have denied that complainant has supported Yellavva Talawar, during her cross-examination PW-3 Pavithra Talawar has admitted the said fact. However, this itself would not be accepted as a reason for complainant to falsely implicate the accused persons in the light of over whelming, credible and trustworthy testimony of PWs-1 to 3.
30. There is no evidence that on account of the election, there was any ill will or bad blood between Yellavva
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Talawar and Neelavva Harijan, on account of which complainant has chosen to file a false complaint against the accused persons. Having regard to the fact that PWs-4 and 9 belong to the same community as that of the accused persons and have no motive to falsely implicate the accused and they have supported the case of the prosecution goes to show that the incident as alleged has in fact taken place. As belonging to the same community as that of the accused persons, PWs-4 and 9 had no reason to falsely implicate Therefore, the fact that in the election, accused persons and complainant supported different candidates is not a sufficient ground to disbelieve the reliable, cogent and convincing testimony of PWs-1 to 3, which is supported by the evidence of PWs-4 and 9.
31. So far as the earlier incidences are concerned, there is delay in filing the complaint. As discussed earlier, the husband of complainant is working as a Conductor in Nargund depot and it appears he was not available in the house for the support of women folk. From the complaint averments and the testimony of PWs-1 to 3, 4 and 9, it is evident that initially though accused No.1 used to make lewd
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remarks against the complainant, she ignored and did not chose of file complaint. Only after accused No.2 started harassing her daughter, she complained to the elders of the village viz., PWs-4 and 9 who also belong to the community of accused persons and they tried to use their good office to counsel accused Nos.1 and 2. Even after the advise by PWs- 4 and 9 accused Nos.1 and 2 did not stop the harassment. On the other hand, emboldened accused Nos.1 to 3 started coming near the house and abusing the complainant and her daughters in filthy language, referring to their caste and going to the extent of saying that complainant should leave her youngest daughter as a keep of accused No.2. During the incident dated 20.05.2010 and on the very next day i.e., 21.05.2010 accused Nos.1 to 3 have pelted stones on the house of the complainant and damaged the tiles. Only after the conduct of the accused persons went out of control, the complainant has chosen to file the complaint. When it became unbearable for the complainant to tolerate the conduct of accused Nos.1 to 3 anymore, she has chosen to file the complaint. In the complaint itself and also during the course of evidence of PWs-1 to 3, the reason for filing the complaint belatedly is given and deposed to.
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32. Thus the prosecution has explained and justified the delay in filing the complaint. The precarious situation in which PWs-1 to 3 were placed, being persons belonging to Scheduled Caste and without having any support from anyone and even after the counseling by PWs-4 and 9 did not yield any reason, as a last resort complainant has chosen to lodge the complaint. As a women with three daughters and without her husband being around all the time, complainant has chosen to ignore the earlier conduct of accused No.1. Only after things went out of control, she has chosen to lodge the complaint. From the perspective of the complainant and her helpless daughters, the delay in filing the complaint is perfectly justified. Having regard to the fact that accused persons are residents of the same village and known persons, there was no occasion for PWs-1 to 3 to take advantage of the delay in filing the complaint to falsely implicate the accused persons.
33. Since complainant is semi-literate having studied upto 6th standard, she has got the complaint written through PW-10 Yellappa Goravanakolla. PW-1 has deposed to this effect. Her evidence is supported by the testimony of PW-10.
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He has deposed that at the request of complainant he went to the police station and wrote the complaint and identified his signature at Ex.P1(c). During his cross-examination he has denied that after discussing with the concerned police, they have lodged a false complaint. He has specifically deposed that at the time of filing complaint PW-2 Nethravathi was also with them. In fact during the course of her evidence PW-2 Nethravathi has deposed that she also accompanied the complainant to lodge the complaint.
34. PW-7 Prashanth Suresh Nayak, PSI has registered the case and transmitted the FIR to the Court. He has deposed that on 21.05.2010, at 10.30 p.m, while he was in the Police Station, complainant came and lodged a written complaint and on the basis of it he registered the case in Cr.No.228/2010 and transmitted the FIR to the Court. The jurisdictional Magistrate has received the complaint and FIR on the next date at 12.15 p.m. in the open Court as per the endorsement on the FIR. During his cross-examination PW-7 has denied that complaint was prepared after discussing with the writer of the police station. In fact he has specifically deposed that complainant lodged a written complaint. Thus,
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the evidence of PW-7 prove the fact of registering of the case on the basis of complaint lodged by PW-1 and the FIR was transmitted to the Court at the earliest available opportunity.
35. After registering the case, the Investigating Officer has visited the spot and drawn the mahazar and seized the stones and tile pieces. PW-5 and 8 are independent witnesses to the seizure mahazar while PW-12 is the Investigating Officer. PW-8 Mallappa Buradakatti has supported the prosecution case and deposed that when the police visited the spot he and PW-5 Ismail Natagatti were present and the place of incident was pointed out by the complainant and the concerned police seized four stones and tile pieces from the spot as per MOs-1 and 3 and he has affixed his LTM to the mahazar. However, PW-5 Ismail Natagatti has not supported the prosecution case and during his examination-in-chief he has deposed that Dy.S.P. took his signature to blank paper. During his cross-examination by the prosecution he has denied that when the mahazar was drawn he was present and seen the recovery of stones and tile pieces and he has signed the mahazar after it was read over and explained to him. However, the evidence of
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PW-8 coupled with the testimony of the Investigating Officer establish and prove the spot/seizure mahazar at Ex.P2. A suggestion is made to PW-12 who has drawn the mahazar that he took the signatures of the witnesses to a previously prepared mahazar. This very suggestion made to PW-12 falsifies the evidence of PW-5 that his signature was taken to a blank paper and probabilise that in order to help the accused persons, he has concealed the truth and turned hostile. Thus through the testimony of the PWs-8 and 12, the prosecution has proved that after registering the case, on the next day the Investigating Officer has visited the spot and drawn the mahazar and in the presence of complainant and mahazar witnesses he has recovered the incriminating articles from the spot.
36. As already noted PW-12 has conducted further investigation. During the course of his evidence, he has deposed to that effect and stated that in the spot mahazar, he has noted the details of the place of incident. The spot mahazar also refers to the house of PW-9 Erappa Adaki, who is also a witness to the incident dated 07.05.2010.
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37. PW-11 Shivakumar Basavanthappa Patil, Dy.S.P has conducted further investigation and filed charge sheet against accused Nos.1 to 3. He has deposed to this effect and stated that he has recorded the statement of witnesses, collected the caste certificate of PWs-1 to 3 and accused persons as per Ex.P5 and also got the sketch of the scene of occurrence prepared through the Engineer, PWD as per Ex.P6 and after concluding the investigation filed charge sheet against the accused. PW-11 has been cross-examined as to whether he has conducted any investigation with regard to the enemity on account of Panchayath election. It is not the case of the prosecution that there was enemity between the two contestants and their supporters and that was the reason for the incident. Since it is the defence of the accused, the Investigating Officer is not expected to conduct any investigation from that angle.
38. The accused have also taken up a defence that the only son of PW-6 Shidlavva Talawar has died and except the complainant and her family members, she is not having any other relatives and therefore, complainant was insisting upon her to transfer the property standing in her name to
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the names of her children and since she did not agree for the same, a false complaint is filed against the accused persons. Though a suggestion is made to PWs-1 to 3 to this effect, the accused persons have not cross-examined PW-6 Shidlavva Talawar and thereby they have failed to make such suggestion to her. It has come in the evidence of PW-9 Erappa Adaki that PW-6 Shidlavva Talawar is living with her husband. Admittedly, accused are not related to PW-6 Shidlavva Talawar. The very defence that for Shidlavva Talawar not agreeing to transfer her property to the children of complainant, she has filed a false complaint against accused is absurd and meaningless. If complainant is angry with PW-6 Shidlavva Talawar then it would be expected that she would file a complaint against her and not the accused persons who have nothing to do with PW-6 Shidlavva Talawar. Therefore, the defence that PW-6 Shidlavva Talawar having failed to transfer her property to the children of the complainant is the reason for the complainant to falsely implicate the accused persons cannot be accepted.
39. Thus, from the above discussion, I hold that the evidence placed on record by the prosecution prove the
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allegations against accused persons beyond all reasonable doubt. However, the trial Court by giving undue importance to the minor discrepancies in the testimony of PWs-1 to 3, has disbelieved the case of the prosecution. The findings of the trial Court are perverse and contrary to the evidence placed on record. PWs-1 to 3 being helpless women folk and without any support from any of the villagers have chosen to complain only after the conduct and behaviour of the accused persons became unbearable. On the other hand, the accused persons being emboldened by the fact that they belong to forward community and looking to the helplessness of PWs-1 to 3, have acted in a high handed manner and harassed PWs-1 to 3 only for the reason that they belong to Scheduled Caste.
40. Thus, from the above discussion I hold that the prosecution has proved the allegations against accused No.1 beyond all reasonable doubt that he has committed the offences punishable under Section 504, 506, 509, 427 of I.P.C and Section 3(1)(x) of the SC & ST Act. The prosecution has also proved beyond all reasonable doubt that accused No.2 has committed the offences punishable
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under Section 354, 504, 506, 427 of I.P.C, 3(1) (x) & 3(1)
(xi) of SC & ST Act. Similarly the prosecution has proved beyond all reasonable doubt that accused No.3 has committed the offences punishable under Section 504, 506, 427 I.P.C and Section 3(1) (x) of the SC & ST Act and accordingly I proceed to pass the following:
ORDER
i) The appeal filed by the State under section 378 (1) and (3) of Cr.P.C., is allowed.
ii) Accused No.1 is convicted for the offences punishable under Section 504, 506, 509, 427 of I.P.C and Section 3(1)(x) of the SC & ST Act.
iii) Accused No.2 is convicted for the offences punishable under Section 354, 504, 506, 427 of I.P.C, 3(1) (x) & 3(1) (xi) of SC & ST Act.
iv) Accused No.3 is convicted for the offences punishable under Section 504, 506, 427 I.P.C and Section 3(1) (x) of the SC & ST Act.
Appreciation is placed on record for the valuable assistance rendered by the learned Amicus Curiae representing the respondents/accused. The fees of learned Amicus Curiae is fixed at Rs.10,000/-. The High Court Legal Services Committee is directed to pay the same.
Sd/-
JUDGE RR/MDS
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JMKJ: Crl.A.No.2554/2012 01.12.2022 ORDER ON SENTENCE Heard accused Nos.1 to 3 and the learned Amicus Curiae representing the accused, as well as the learned Addl. State Public Prosecutor on sentence.
2. The learned Amicus Curiae for accused Nos.1 to 3 submits that accused No.1 is aged about 75 years and prays to impose lenient punishment on the accused. He also submits that the provisions of Probation of Offenders Act, may be applied.
3. On the other hand learned Addl SPP submits that for the reason that the complainant and her daughters belong to Scheduled Caste and taking undue advantage of the fact that the husband of complainant is working as a conductor and used to be away from residence, accused have committed the offences in question and they do not deserve any leniency. He also submitted that as per Section 19 of the SC & ST Act, the provisions of Section 360 Cr.P.C. Probation of Offenders Act is not applicable to accused persons above the age of 18 years and prays to impose stringent punishment.
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4. When the incident took place, accused No.1 was aged 50 years. Now, he is aged about 62 years. Accused Nos.2 and 3 were also major.
5. Section 19 of SC & ST Act provides that the provisions of Section 360 of Code of Criminal Procedure or the provisions of Prohibition of Offenders Act are not applicable to persons above the age of 18 years who are found guilty of an offence under the Act.
6. The accused Nos.1 to 3 are convicted for the offences punishable under Section 504, 506, 427 I.P.C. and Section 3(1) (x) of SC & ST Act. In addition to it accused No.1 is also convicted for the offence punishable under Section 509 I.P.C. Similarly, accused No.2 also convicted for the offences punishable under Section 354 I.P.C and Section 3(1) (xi) of SC & ST Act.
6.1 The offence under Section 504 I.P.C shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
6.2 The offence under Section 506 I.P.C, if threat is to cause death or grievous hurt, or to cause destruction of any property by fire or to cause an offence punishable with death or
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imprisonment for life or with imprisonment for a term which may extend to seven years or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both.
6.3 The offence under Section 427 I.P.C shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
6.4 The offence under Section 509 I.P.C shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both.
6.5 The offence under Section 354 I.P.C shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
6.6 The offence under Sections 3(1) (x) & 3(1) (xi) of SC & St Act shall be punished with imprisonment for a term which shall be not less than six months, but which may extend to five years and with fine.
7. Having regard to the fact that as per Section 19 of the SC & ST Act, the provisions of Section 360 Cr.P.C. and
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Probation of Offenders Act are not applicable to accused persons above the age of 18 years and taking into consideration the gravity of the offences committed by them, accused Nos.1 to 3 are sentenced as under:
7.1 Accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,000/-
each, in default to undergo simple imprisonment for three months each, for the offence punishable under Section 504 I.P.C.
7.2 Accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months each, for the offence punishable under Section 506 I.P.C.
7.3 Accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months each, for the offence punishable under Section 427 I.P.C.
7.4 Accused Nos.1 to 3 are sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.5,000/-
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each, in default to undergo simple imprisonment for six months each, for the offence punishable under Section 3(1) (x) of SC & ST Act.
7.5 Accused No.1 is sentenced to undergo simple imprisonment for six months and pay fine of Rs.1,000/-, in default to undergo simple imprisonment for two months, for the offence punishable under Section 509 I.P.C.
7.6 Accused No.2 is sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months, for the offence punishable under Section 354 I.P.C.
7.7 Accused No.2 is sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.5,000/-, in default to undergo simple imprisonment for six months, for the offence punishable under Section 3 (1) (xi) of SC & ST Act.
8. All the substantive sentence shall run concurrently. Registry is directed to send back the TCR along with copy of the judgment and order.
Sd/-
JUDGE RR