Karnataka High Court
Papanna S/O. Kariyappa vs State Of Karnataka Reptd By Its Public ... on 30 January, 2013
Bench: K.L.Manjunath, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 30th day of January 2013
:PRESENT:
HON'BLE MR.JUSTICE : K.L.MANJUNATH
AND
HON'BLE MR.JUSTICE : H.S.KEMPANNA
CRIMINAL APPEAL No. 312 / 2009
BETWEEN :
1. Papanna,
S/o. Kariyappa,
Aged 35 Years,
2. Kamaraju,
S/o. Rangappa,
Aged 32 years,
Both are residing at
Kambadahally,
Kasaba Hobli,
Madugiri Taluk,
Tumkur district. : Appellants
(By Shri. K. Hanumantharayappa, Advocate)
AND:
State of Karnataka,
Represented by its
Public Prosecutor,
High Court Buildings,
Bangalore-560 001. : Respondent
(By Shri. N.S. Sampangiramaiah, HCGP.,)
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This Criminal Appeal filed under Section 374 of the
Code of Criminal Procedure praying to set aside the
Judgment of conviction dated 06.04.2009 and Order of
sentence dated 08.04.2009 passed by the III Additional
Sessions Judge, Tumkur, in Special Case No.106/2007,
convicting and sentencing the appellants for the offences as
stated therein.
This appeal coming on for hearing this day,
Manjunath, J, delivered the following:
JUDGMENT
The appellants are questioning the legality and correctness of the judgment of conviction dated 06.04.2009 and order of sentence dated 08.04.2009, passed in Special Case No.106/2007 by the III Additional Sessions Judge and Special Court for trial of cases under the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 Tumkur, [herein after referred to as 'POA Act' for short].
2. The appellants, by the impugned Judgment and Order, have been convicted for the offences punishable under Sections 326, 506 read with Section 34 of the Indian Penal Code and Section 3 (1) (x) and 3 (2) (v) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act 1989 3 and sentenced to undergo simple imprisonment for a period of 4 years and to pay fine of Rs.1000/- each and in default of payment of fine, to undergo simple imprisonment for a further period of one month each for the offence punishable under Section 326 IPC. Further, they are sentenced to undergo simple imprisonment for life and to pay fine of Rs.1000/- each, in default to pay fine, they shall undergo simple imprisonment for a further period of one month each for the offence punishable under section 3 (2) (v) of SC/ST (POA) Act r/w. 34 IPC. However, the accused-appellants have been acquitted of the offence punishable under Section 506 IPC and Section 3 (1) (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
3. We have heard Shri. K. Hanumantharayappa, the learned counsel for the appellants and Shri. N.S. Sampangiramaiah, learned High Court Government Pleader for the state and perused the records.
4. It is the case of the prosecution that on 25.12.2006 at about 5.00 p.m, when the complainant (PW1) Kotekallappa S/o. Sannappa, resident of Akkenahalli 4 village was sleeping in his agricultural land bearing Sy.No.8/3A, accused persons came near the pump house of the complainant, picked up quarrel with him and threatened to kill him and Accused No.1 assaulted him with a chopper (MO.2), Accused No.2 assaulted him with club (MO.3) on his head and back and when the complainant tried to ward off the blows, his left hand index finger was cut and thereafter his mother Rangamma (PW.2) and his cousin brother Kotekallappa (PW.5) took him to the Government Hospital at Madugiri wherein he took treatment. According to the complainant, the accused person, belongs to Vokkaliga community, and he is a member of Schedule Caste, taking the caste name of the complainant they assaulted him. On the next day at 13.30 (1.30 p.m) he lodged complaint before Madugiri police as per Ex.P.1 and the same was registered in crime No.191/2006 for the aforesaid offences. After completion of the investigation, charge sheet was filed against the appellants for the aforesaid offences.
5. Since the appellants denied the charges leveled against them and pleaded not guilty, the prosecution, in order to bring home the guilt of the accused, examined PWs. 5 1 to 8 and got marked six documents Ex.P.1 to P6 and MOs. 1 to 3. No defence evidence was let in on behalf of the appellants. The case of the appellants was of total denial.
6. The learned Sessions Judge, after hearing the arguments of the learned Public Prosecutor and the learned defence counsel, formulated the following points for consideration:
i) Whether prosecution proves that on 25.12.2006 at about 5 p.m at Alenahally in Sy.No. 8/3A near electric room due to previous enmity the accused persons with the common intention have assaulted the complainant with machu and the said hit was fallen on the left hand finger and A2 Kamaraju assaulted with stick and thereby caused grievous hurt to complainant and committed the offence punishable under Section 326 r/w Sec. 34 of IPC beyond all reasonable doubts?
ii) Whether the prosecution further proves that the accused persons on the said date, time and place with common intention have threatened the complainant to kill and thereby committed the offence punishable under Sec. 506 r/w Sec. 34 of IPC beyond all reasonable doubt?
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iii) Whether the prosecution further proves that the accused persons who belongs to Vokkaliga caste on the said date, time and place with common intention knowing fully well that the complainant Kallappa belongs to Adi Karnataka Caste which is Scheduled caste has abused the complainant in filthy language as ""zÀ£À w£ÀÄߪÀ £À£Àß ªÀÄUÀ£É ªÀiÁ¢UÀ £À£Àß ªÀÄUÀ£É" with a public view and thereby committed the offence punishable under Section 3 (1) (x) of the SC/ST (POA) Act, 1989 r/w Sec. 34 of IPC beyond all reasonable doubts?
iv) Whether the prosecution further proves that the accused persons on the said date, time and place with common intention have assaulted the complainant and committed the offence punishable for more than 10 years imprisonment and thereby committed the offence punishable under Sec. 3 (2) (v) of the SC/ST (POA) Act 1989 r/w. Sec. 34 IPC beyond all reasonable doubts?
7. On appreciating the entire evidence and the material placed on record, the Sessions Court held point Nos.1 and 4 in the affirmative, point Nos. 2 and 3 in the negative and accordingly, the appellants are convicted and sentenced as aforesaid for the said offences. Challenging 7 the judgment of conviction and the order of sentence, the present appeal is filed.
8. Shri. K. Hanumantharayappa, learned counsel for the appellants, contends that the appreciation of the evidence by the learned Sessions Judge is perverse and on account of wrong appreciation of the evidence, the appellants have been convicted. According to him, the incident is said to have taken place at about 5.00 p.m on 25.12.2006 when PW.1 was sleeping in the pump house and at that time, when A-1 attempted to assault him with MO.2 chopper on his head, the complainant warded off the same by raising his hand as a result of which, his left index finger has been cut and the said incident has been witnessed by Rangamma (PW.2), the mother of the complainant. Further according to PW.1, the accused person abused him by taking the name of his caste. It is also the case of the prosecution that PW.5 also witnessed the incident. He further submitted that though the incident is said to have taken place at 5.00 p.m and the complainant was taken to the hospital by PWs. 2 and 5 at about 5.30 p.m or 6.00 p.m, he has been examined and treated by PW.3 Doctor 8 Venkatesh Babu at 10.00 p.m on 25.12.2006. He further contends that though the Government hospital and the police station at Madugiri are located adjacent to each other, the complaint has not been lodged on the very date of occurrence i.e., on 25.12.2006 on which date, according to PW.1, he has taken treatment at Government hospital. On the contrary, the complaint was lodged by PW.1 on the next day i.e., on 26.12.2006 at 1.30 p.m. He further contends that in the wound certificate Ex.P.3, the doctor has not mentioned the names of the assailants. Later, as an afterthought, a false complaint was lodged on the next date at 1.30 p.m. He further contends that the learned Sessions Judge did not appreciate the evidence of PW.2, the mother of the complainant who did not depose that the accused persons assaulted her son by taking the name of his caste. According to PW.2, she went to the hospital at 5.00 or 6.00 p.m which is contrary to the evidence of the doctor (PW.3). He further contends that according to PW.2, police came to the spot at 9.00 a.m on the next day morning i.e., on 26.12.2006. If really the police visited the spot at 9.00 a.m on 26.12.2006, the question of complainant lodging 9 complaint at 1.30 p.m on 26.12.2006 does not arise and that PW.5 who is said to have taken the injured to the hospital has turned hostile to the prosecution. He further contends that the evidence of the complainant discloses that he was the President of Taluka DSS for more than 15 years. Taking advantage of the same, he has got filed a false complaint against appellants. On these grounds he submits that the learned Sessions Judge has not properly appreciated the evidence on record and requests this court to re-appreciate the entire evidence and to acquit the accused-appellants for the charges leveled against them.
9. Per contra, Shri N.S.Sampangiramaiah, the learned HCGP., supporting the Judgment of the Sessions Court contends that merely because the complaint is lodged on the next date of the incident, the case of the prosecution cannot be doubted. He also contended that solely on the basis of minor contradictions in the evidence of PWs. 1 and 2, the credibility of their evidence cannot be doubted. He further contends that in view of the undisputed fact that the injured complainant belongs to Scheduled caste and the accused-appellants belong to Vokkaliga community, the 10 possibility of the accused-appellant committing the offences leveled against them cannot be doubted and therefore, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties, what is to be considered in this appeal is:
"Whether the prosecution has proved the guilt of the accused beyond reasonable doubt and whether the appreciation of evidence by the Sessions Court is just and proper and whether the same requires to be interfered with?".
11. The entire prosecution case mainly rests on the evidence of PWs. 1, 2, 3 and 5 and the complaint (Ex.P.1), the mahazar (Ex.P.2) and the wound certificate (Ex.P.3). On careful scrutiny of the evidence of the injured-complainant (PW.1), it is seen that he has claimed that his mother was very much present at the scene of occurrence at the time of incident and has witnessed the incident. According to him accused abused him by taking the name of his caste and when accused No.1 tried to assault him with chopper (MO.2) he tried to ward-off by raising his hand and at that time, his left index finger was cut and Accused No.2 assaulted him 11 with club (MO.3) on his head and on his back. There is material contradiction in the deposition of PW.1 before the court and there is an improvement from the complaint Ex.P.1 wherein he has not stated the reason for assault except by taking the name of his caste; Accused Nos. 1 & 2 assaulted him. In his evidence, it is his specific case that the accused were demanding him to work in their land without any wages and since he refused to do so, they assaulted him. But such an allegation is not found in the complaint Ex.P.1. Further, he has admitted in his cross- examination that he is the President of Dalit Sangarsh Samity of Madugiri Taluk.
12. When we examine the evidence of Smt. Rangamma (PW.2), the mother of the complainant, in her testimony before the Court, she has categorically stated that the accused-appellants have not abused her son (PW.1) by taking the name of his caste. According to her, on account of assault made by the accused, PW.1 fell in the pump house and immediately, with the assistance of PW.5, she shifted the complainant to the hospital and she further deposed that the police visited the spot at 9.00 or 10.00 a.m on 12 26.12.2006. On the contrary, PW.5 Kotekallappa, who is none other than the cousin brother of the complainant has deposed before the Court that when he was in his agricultural land, PW.2 came and informed him that her son PW.1 has become unconscious and asked his assistance to shift him to the hospital and therefore, he shifted him to the hospital, but he has not supported the case of the prosecution and he is treated as hostile. There are a material contradictions and discrepancies in the evidence of PWs. 1, 2 and 5.
13. PW.3 Dr. Venkatesh Babu is the doctor who treated the injured-complainant (PW.1) on 25.12.2006 at 10.00 p.m. According to the doctor, he examined and treated the injured-complainant (PW.1) at 10.00 p.m on 25.12.2006. On the contrary, according to PW.2, her son was taken to the hospital at 5.00 or 6.00 p.m. On perusal of the wound certificate Ex.P.3 it is seen that the doctor has described only the injuries on the left index finger of the complainant, but it does not disclose the name of the assailants and the opinion of doctor as to the possibility of causing such injuries by using MO.2 or Mo.3. When the 13 accused was a President of the DSS, Madugiri Taluk and when it was in the knowledge of the injured-complainant that it is these accused-appellants are the assailants, nothing prevented him from disclosing the names of the assailants before the Doctor (PW.3). Added to this, Madugiri government hospital and police station are located side by side. If really the injured-complainant was taken to Madugiri hospital on 25.12.2006 at 6.00 p.m, there was no reason for the complainant not to lodge complaint before the jurisdictional police on the same day or at least on the next day morning. On the contrary, he has lodged the complaint on 26.12.2006 at 1.30 p.m. When PW.3 the doctor who has stated that he examined the injured at 10.00 p.m on 25.12.2006 and if it is really a Medico Legal Case, he would have informed the same to jurisdictional police. On perusal of the spot mahazar Ex.P.2 it is seen that the mahazar at the place of occurrence was drawn between 4.30 p.m to 5.15 p.m on 26.12.2006. But PW.2, the mother of the complainant who attested the spot panchanama has deposed before the court that the police visited the place of occurrence at about 9.00 or 10.00 am on 26.12.2006. If 14 complaint is lodged at 1.30 p.m on 26.12.2006, the question of police drawing mahazar at 9.00 a.m on 26.12.2006 i.e., 3- 4 hours before lodging complaint does not arise The learned Sessions Judge, without noticing all these material contradictions and discrepancies in the evidence of the prosecution witnesses and without appreciating the evidence on record in a proper perspective has arrived at wrong conclusion and consequently has erred in holding that the accused are guilty of the aforesaid offences.
14. On re-appreciation of the evidence on record, we are of the considered view that there is no cogent reliable evidence adduced on behalf of the prosecution to prove the guilt of the accused beyond all reasonable doubt. The appreciation of the evidence by the learned Sessions Judge is perverse and consequently, the findings arrived at by the learned Sessions Judge are liable to be set aside. Accordingly, we answer the point for determination. In the result, for the foregoing reasons we proceed to pass the following Order.
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15. The appeal is allowed. The impugned Judgment of conviction dated 06.04.2009 and the Order of sentence dated 08.04.2009 passed by the III Additional Sessions Judge Tumkur and Special Court for trial of cases under SC/ST (Prevention of Atrocities) Act, 1989, in Special Case No. 106/2007 is hereby set aside. The accused-appellants are acquitted of all the charges levelled against them. The bail bonds if any executed by them and their sureties shall stand discharged.
Sd/-
JUDGE Sd/-
JUDGE VR