Karnataka High Court
The State Of Karnataka vs Veeranagouda And Ors on 17 November, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17th DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.200045/2017
BETWEEN:
The State of Karnataka
Through Turuvihal P.S.
Raichur District.
...APPELLANT
(BY SHRI GURURAJ V. HASILKAR HCGP)
AND:
1. Veeranagouda S/o Hanumanagouda
Age: 65 years, Occ:
R/o Deen Samudra village
2. Amaregouda,
S/o Mudukappa @ Mudukanna
Age: 65 years,
R/o Deen Samudra village
3. Dasanagouda S/o Sharanegouda
Age: 39 years,
R/o Deen Samudra village
4. Amaregouda S/o Timmanagouda
Age: 39 years,
R/o Deen Samudra village
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5. Shantanagouda S/o Timmanagouda
Age: 33 years,
R/o Deen Samudra village
6. Shekargouda S/o Basangouda
Age: 43 years,
R/o Deen Samudra village
... RESPONDENTS
(BY SRI SHIVANAND V.PATTANSHETTI ADVOCATE)
This Criminal Appeal is filed under section 378 (1)
& (b) of Criminal Procedure Code, praying to set aside
the judgment and order dated:21-11-2016 passed by
the Addl. Sessions Judge Raichur dated: in SPL.A.C
No.69/2011 and further be pleased to convict and
sentence the respondents/accused for the under section
3(1) (x) of SC/ST (PA) Act, and for theoffences
punishable under sections 143, 147, 447, 355, 354 &
504 R/w Sec.149 IPC & in the interest of justice and
equity.
This Criminal Appeal coming on final hearing, this
day, the court delivered the following;
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JUDGMENT
This appeal is by the State challenging the Judgment of acquittal passed by the learned Addl. Sessions Judge, Raichur in Spl.AC Case No.69/2011 dated: 21-11-2016 acquitting the accused for the offences punishable under section 3(1) (x) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989 ((for short hereinafter referred as "SC and ST (PA) Act, 1989") and for the offences under sections 143, 147, 447, 355, 354 & 504 R/w Sec.149 of Indian Penal Code.
2. The brief case of the prosecution is that, the father of complainant/Renukamma had sold 1 acre 20 guntas of land in survey No.37/2 situated at Deen Samudra village to one Veeranagouda and remaining land of 3 acres 38 guntas was cultivated by them. The accused quarreling with them stating that, still half acre of land has to come to their share.
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It is further case of the prosecution that, on 27-
08-2011 morning at 10.45 a.m., this complainant/Renukamma and her parents Shamappa, Lachamma and Durgeppa were in the said land. At that time all the accused came there by forming unlawful assembly abused them by taking their caste abused them stating "Madiga Sule Makkale", still half acre of land has to come to them, why they are removing weed from the land. The accused also tried to destroy the paddy crop grown by the complainant in the said land. When the complainant asked the accused not to destroy the crop, accused Amaregouda and Shantangouda took chappal from their legs and assaulted with chappals her brother Durgappa. It is further case of the prosecution that, PW.1 when tried to rescue him, accused Nos.1 to 3 and 6 assaulted her and pulled her saree with intention to outrage her modesty. At that time, one Shivappa and Hulgeppa came and pacified the quarrel. 5
Thereafter-wards the PW.1/Renukamma lodged complaint/Ex.P.1 with Turvihal police station in this regard. On the basis of said complaint, a case in Crime No.147/2011 came to be registered for the offences punishable under sections 143, 147, 447, 354, 355 & 504 R/w Sec.149 of Indian Penal Code and under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. Then F.I.R was sent to Special Court.
3. Thereafter the Investigating Officer after completion of the Investigation had filed charge sheet before the Special Court against the accused for the offences referred above.
4. The Special Court took cognizance of offences. Thereafter furnishing the prosecution papers, charge was framed against the accused for the offences punishable under Sections 143, 147, 447, 354, 355 and 504 R/w Sec.149 of Indian Penal Code and under 6 Section 3(1) (x) of the SC and ST (PA) Act, 1989. The accused pleaded not guilty. Then the case was posted for prosecution evidence. The prosecution in all examined 11 witnesses as PWs.1 to 11 and got marked 08 documents as per Exs.P.1 to Ex.P.08 and identified M.Os.1 & 2 are identified.
05. After recording evidence, statement of accused as required under Section 313 of Code of Criminal Procedure was recorded. The accused have denied the incriminating evidence appearing against them. They have not chosen to lead defense evidence.
06. After hearing both sides, learned Addl. Sessions Judge, Raichur acquitted the accused for the offence punishable under Section 3(1) (x) of the SC and ST (PA) Act, 1989 and under sections 143, 147, 447, 354, 355 & 504 R/w Sec.149 of Indian Penal Code and
7. Aggrieved by the said acquittal, the appellant/State has preferred this appeal on the ground 7 that, the reasons assigned by the trial court in acquitting the accused are erroneous. The evidence of the injured /PW.1 is corroborated by the evidence of PW.2, PW.3 & PW.4. The trial court has given importance to minor contradictions. The offence under the provisions of prevention of Atrocities Act have been proved by the prosecution. Giving benefit of doubt by the trial court to the accused is not proper. The Judgment of the trial court is contrary to the facts and law. With these grounds the appellant/State prayed to set aside the Judgment of the acquittal and convict the accused.
08. The accused/respondents appeared through counsel.
09. Heard Sri.Gururaj V.Hasilkar learned High Court Government Pleader for the appellant/State and Sri.Shivanand V.Pattanshettti learned counsel for accused/respondents.
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10. The learned High Court Government Pleader for the appellant/State argued that, the prosecution by examined the complainant/PW.1 who supported the prosecution case. Her evidence is corroborated by the evidence of PW.s 2 to 4 who have supported the prosecution case. The learned Addl. Sessions Judge, Raichur is wrong in acquitting the accused. With these contentions the learned High Court Government Pleader prays to convict the accused.
11. As against this, the learned counsel for accused/respondents argued that, the trial court has considered the evidence meticulously and arrived at just and proper conclusion based on the sound principles regarding appreciation of evidence in criminal cases and came to right conclusion that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The said finding cannot be interfered 9 unless the material evidence is discarded. With these contentions he prayed to dismiss the appeal.
12. I have perused the Judgment, records of the trial court and appeal Memo.
13. From the above materials, evidence and arguments the point that would arise for my consideration are as under:-
01. "Whether the learned Sessions Judge has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in criminal?
02. Whether the Judgment passed by the learned Sessions Judge in Spl. AC Case No.69/2011 is illegal, perverse and needs interference by this court?
14. My answer to the above points are as under
for the reasons given below.10
15. It is evident from the prosecution evidence that, the accused have purchased the land in survey No.37/2 situated at Deen Samudra village from the father of the complainant. It is also evident that, there is dispute between the complainant and accused in respect of half acre of land in the said survey number. It is also admitted by PW.1/complainant that civil suit is pending at Sindhanur Court and in the said suit on 22-08-2011 an injunction order was passed against complainant. It is also evident that, PW.1 to PW.4 are all father, mother, sister and brother. PW.5 Hulgeppa and PW.6 Shivappa have admitted that, they also belongs to same caste to that of the complainant. PW.7 Lingappa, PW.8 Suleminraj and PW.9 Jikarayya have not supported the prosecution case. PW.10 Dr.Ramesh who examined the victim and witness in this case clearly opined that, there was no injury on this complainant or PW.4 Durgappa and he issued wound certificates as per Ex.P.6 & Ex.P.7. It is also evident 11 that, the Investigating Officer who has done investigation in this case has not appeared before the court to give evidence. So in the light of these undisputed contentions let me consider the evidence of prosecution witnesses.
16. PW.1 Renukama in her evidence has stated that, about three years prior to she giving at about 11.00 hours she along with CW.2, CW.3 & CW.4 were removing weed in the scene of offence land, at that time accused came there and abused them by taking their caste stating in kannada language "Madiga Sule Makkale" why you are removing weed from their land. The accused tried to destroy the grown up crop. Accused Nos.2 & 5 assaulted CW.4 Durgeppa with chappals and when PW.1 tried to rescue him, accused pulled her and pushed her on the ground. If the evidence of the PW.1 is perused evident that, it is a general and vague evidence about incident. No 12 particular act or particular overtact is attributed against accused. It is a general statement stating that, accused came, abused by taking their caste and tried to destroy the crops. Which accused abused the complainant by taking their caste? Where these accused Nos.2 & 5 assaulted CW.4 Durgeppa is also not stated by PW.1 in her examination in chief. Such omni bus statement cannot be accepted as legally admissible evidence or evidence beyond reasonable doubt to prove the charge leveled against the accused. PW.1 in her cross- examination clearly admitted that the said 1 acre 20 guntas of land had fallen to the share of Veerangouda. PW.1 has also admitted that, accused have filed civil suit in respect of said land and there is injunction order operating against them. PW.1 admitted that their land comes towards northern side of the water canal and admitted that, incident had taken place on the southern side. So it is not in the land of the complainant. 13
17. PW.2 Laxamma is the mother of PW.1/complainant. She has also stated that as per the version of PW.1 when they were removing weed in the land at about 3.00 p.m accused came to the land in a Tractor asked them as to why they were removing weed from their land and abused in filthy language as "Madiga Sule Makkale" and they will assault with chappal. Accused tried to destroy the crops by tractor. Accused pulled the saree of PW.1 and pushed her on the ground and abused her as "Madar Sulere". On perusing the evidence of PW.2 it is evident that, according to her the incident has taken place at 3.00 p.m. But as per Ex.P.1/complaint in the incident has taken place in the morning at 10.45 a.m. The evidence of PW.2 is also a omni-bus statement without giving particular act of accused like which accused abused?, where they assaulted CW.4/Durgappa? nothing is forthcoming. PW.2 also admitted about civil suit pending between them and the accused. The abusive 14 words stated by her are not stated by PW.1. Therefore the presence of PW.2 at the place and time of incident itself is doubtful and her evidence is not in corroboration with the charges leveled against the accused.
18. PW.3 Durgappa is the brother of PW.1/Renukamma. He also stated that, in the morning at 11.00 a.m., when himself and CWs. 1 to 3 were working in their land accused came there, abused them by taking their caste as "Madiga Sule Makalle" and asked why they are removing weed from their land. Accused tried to destroy the paddy crop. When he tried to stop them, accused No.1 Ameragouda and accused No.5 Shantagouda assaulted him with chappal on his back. So for the first time PW.3 has stated where he was assaulted. This is not stated by PW.1 & PW.2. PW.3 has further stated that, accused Nos.3, 4 & 6 pulled the saree of PW.1/complainant and outraged her 15 modesty. PW.3 never stated nature of outraging the modesty by accused. PW.3 has clearly stated that because of civil dispute between accused and themselves this incident had taken place. The police have recorded his statement. He has stated before the police that, his name is Durgappa S/o Shamappa. He has stated he do not know that, the police have recorded his statement as one Durgappa S/o Dyamappa. The statement of Durgappa S/o Shamappa is not available as per the Investigating Officer. The Investigating Officer has not come before the court to explain the same. PW.3 has stated that, the police have registered the case as stated by him. So the evidence of this PW.3 is not helpful to the prosecution.
19. PW.4 Hussainappa and PW.5 Hulgeppa, according to the prosecution are the eyewitnesses. PW.4 Hussainappa in his evidence has stated that, on 27-08- 2010 at 9.00 a.m., he had been to Maski for work and 16 in the evening. He came to S.N.Camp. His sister/PW.1 informed him about the incident that took place. It appears that, he is also brother of PW.1 and it is evident that, he is only a hearsay witness. So his evidence will not help the prosecution. PW.4 has clearly admitted that, he has not seen the incident. PW.5 Hulgeppa is another witness for prosecution. He has stated that, incident had taken place in the morning at 10.30 a.m. He also not stated any particular overtact of particular accused. His statement is also general i.e. like omnibus statement. PW.5 has stated that, accused Nos.4 & 5 have assaulted PW.3 Durgeppa which is contrary to the very evidence of said PW.3 Durgeppa who has stated that, accused No.1 Amregouda and accused Shantagouda assaulted him with chappal. So the presence of this PW.5 itself is doubtful. In the cross- examination PW.5 has admitted that, he has gone to the police station on that day. He is active worker of DSSN society. Police did not meet him. He has admitted that 17 his land is about 2 kilo meters away from the place of incident. He also belongs to the same caste to that of the complainant. So PW.5 being a chance witness, his evidence will not help the prosecution to prove the charges.
20. PW.6 Shivappa is another eyewitness to the prosecution. He has stated that only accused No.2 Amregouda and accused No.5 Shantagouda abused Durgappa as "Madiga Sule Magane" and assaulted him with chappal. Other accused pushed complainant /Renukamma due to that she fell down in the water. PW.5 Hulgeppa has stated that, incident took place for about one hour, but this PW.6 states that incident was over within ten minutes. So the presence of PW.6 at the time of incident is doubtful.
21. PW.7 Lingappa and PW.8 Soleminraj have not supported the prosecution case and nothing is elicited from their mouth by the prosecution.
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22. PW.9 Jakaraya panch witness to Ex.P.3 spot panchnama and Ex.P.4 seizure panchnama also not supported the prosecution case. Nothing is elicited from his mouth.
23. PW.10 Dr.Ramesh who examined PW.1 Renukamma and PW.3 Durgappa on 27-08-2011 at 9.05 p.m., has issued wound certificates as per Ex.P.6 and Ex.P.7 stating that no injuries were found either on Renukamma or Durgappa.
24. PW.11 Sharanappa ASI has stated that, on 27-08-2011 at 6.00 one injured Renukamma D/o Shamappa appeared before him and submitted written complaint as per Ex.P.1 on the basis of which he registered a case in Crime No.147/2011 and sent FIR / Ex.P.8 to the Court. He sent said Renukamma and Durgappa to the hospital for treatment along with police constable. Thereafter handed over case papers to the 19 Deputy Superintendent of Police for further investigation of this case.
25. On perusing the entire evidence of the prosecution witnesses with reference to the charge leveled against the accused it is evident that, there is civil dispute between the accused and the complainant in respect of the extent of the land. There is also an injunction order operating against them prior to filing of this complaint i.e., on 22-08-2011 and this complaint was lodged on 27-08-2011. There is no particular overtact of the accused stated by any of the prosecution witnesses. The property extract of the scene of offence is not produced, nor the Investigating Officer is examined. This case is not only for the offence under Indian Penal Code but also under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. The investigation is to be done by the Senior Officer, not below the rank of Deputy Superintendent of Police. But 20 the Investigating Officer has not appeared before the Court. There are material contradictions about the time of the incident, nature of the assault and the abusive words stated to have been used by the accused.
26. The witnesses are all belong to same caste to that of complainant and there were no other persons who belongs to other caste were present according to the prosecution. Ofcourse the accused have not denied about the caste of the complainant. But it is the duty of the prosecution to produce legally admissible document/evidence to show to which caste actually accused belongs to. It is the primary duty of the prosecution to show that the accused caste notification issued by the Government defining a particular caste as SC/ST. But no such notification is produced Moreover if at all PW.3/Durgappa was assaulted by accused No.2 Amregoua and accused No.5 Shantangouda definitely there could have been some contusion or abrasion or 21 some tenderness on his body. But nothing is forthcoming from the medical evidence. If at all PW.1/Renukamma was pushed and she fell down on the ground atleast she should have sustained some abrasion or some minor injury. But the evidence of Dr.Ramesh/PW.10 discloses that, there is no injury sustained by PW.1/Renukamma.
27. It is pertinent to note that, though according to the prosecution evidence, the incident had taken place in the morning. But the FIR came to be registered in the evening at about 6.00 p.m. and it appears that it reached the Special Court on 28-08-2011 on the next day. The panchnamas are not proved and there is absolutely no evidence to prove that, the accused have any intention to insult the complainant by taking their caste in the public view. The general, vague evidence and omnibus statement that, the accused came assaulted and abused cannot be accepted as legally 22 admissible evidence to convict the accused. The learned Session Judge after considering the evidence has come to the proper conclusion that the prosecution has failed to prove the guilt of the accused.
28. It is settled principle of law that, ill-will or enmity is like doubled edged weapon. It cuts either way. Admittedly in this case there is civil dispute and stay order is obtained prior to the incident by complainant side. There is possibility of falsely implicating the accused in this case due to ill-will against the accused and in view of the civil dispute also cannot be ruled out. There are material contradictions and inconsistencies in the evidence of the prosecution and there is no corroboration to the charge leveled against the accused.
29. The Hon'ble Supreme Court of India in decision reported in of Satish Kumar and another vs. State of Himachal Pradesh and another reported in AIR 2020 SC 1766 has stated to the approach of the 23 first appellate court in an appeal arises out of the Judgment of the acquittal passed by the trial court wherein at para 24 held that -
24. The trial court has recorded an order of acquittal. Such order of acquittal could be interfered with only if there was perversity in the findings recorded by the trial court. Mere fact that the High Court has a different opinion will not be sufficient to enable the High Court to set aside the order of acquittal. The High Court in appeal took a different view than what was taken by the trial court to set aside the judgment and convict the appellants herein. While exercising the jurisdiction under Section 389 of the Code of Criminal Procedure, 1973, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person. The High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was taken by the learned trial court. This Court in Chandrappa and Others v. State of Karnataka considered the scope of powers of the appellate court against an order of acquittal passed by the trial court under the Code and held as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or 24 condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds" "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of"
flourishes of language" to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must
bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
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30. So, in the light of the principles stated in the above decision and also in view of the ingredients of section 143, 147, 447, 354, 355, 504 of Indian Penal Code and under section 3(1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 against which the charge framed against the accused, if the evidence of the prosecution is considered, then in my considered view absolutely there are not grounds to interfere with the Judgment of acquittal passed by the learned Sessions Judge. The learned Sessions Judge after considering both oral evidence and documentary evidence has come to definite conclusion that in view of the civil dispute and enmity between them and evidence of the prosecution does not inspire the confidence. There is no medical evidence to corroborate the evidence of the witnesses and in view of the non examination of Investigating Officer and the timing and place of the incident as stated by the witnesses it creates a doubt in the mind of the court and that benefit of doubt shall 26 goes to the accused. The trial court has rightly acquitted the accused. The appeal being devoid of merits and liable to be dismissed. Therefore, I answer Point No.1 in the Affirmative and Point No.2 in the Negative. Accordingly, I proceed to pass the following:
ORDER Criminal Appeal is dismissed.
The Judgment and order passed by Addl. Sessions Judge, Raichur, in Spl. AC Case No.69/2011, dated 21.11.2016 is hereby confirmed.
Send back the records of the trial court forthwith.
Sd/-
JUDGE MNS