Karnataka High Court
State Of Karnataka vs Mallappa Lakshmappa Dalawai on 21 January, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21ST DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
CRL.A.NO.1802/2007
Between:
STATE OF KARNATAKA
DEPUTY SUPERINTENDENT OF POLICE,
BAGALKOT.
... APPELLANT
(BY SRI K.S.PATIL, HCGP.)
And:
1. MALLAPPA LAKSHMAPPA
DALAWAI
AGED: 50 YEARS, OCC:AGRICULTURE,
R/O.RAMPUR.
2. SIDDAPPA MALLAPPA
DALAWI, AGED 35 YEARS,
R/O.RAMPUR.
3. NEELAPPA MALLAPPA
DALAWI, AGED 29 YEARS,
OCC:AGRICULTURE,
R/O.RAMPUR
... RESPONDENTS
(By MISS NANDINI SOMAPUR FOR SRI B.V.SOMAPUR, ADVS.)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) CR.P.C BY
THE STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DT.20.11.2006 PASSED BY THE SPECIAL/S.J.,
BAGALKOT IN SPL.CASE.NO.6/2005 - ACQUITTING THE
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RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/Ss.323, 355, 504, 506
R/W. SEC. 34 OF IPC AND U/S.3(1)(X)(XI) OF SC/ST (P.A.) ACT AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment dated 20.11.2006 passed by the Special Judge and Sessions Judge, Bagalkot in S.C.No.6/2005 acquitting the respondents of the offences punishable under Sections 323, 355, 504 and 506 IPC r/w. Section 34 of IPC and Section 3(1)(x)(xi) of SC/ST (POA) Act.
2. It is the case of the prosecution that on 16.12.2004 at about 9 p.m., accused No.1 - Mallappa accompanied by the sons of Siddappa and Neelappa, who are the accused Nos.2 and 3 armed with stick and axe went to the house of the complainant situated at Janata Plot at Rampur, picked up quarrel with him and assaulted with chappal and kicked him. When his wife came to her husband's rescue, she was assaulted with the chappal and accused abused them in provocative and intimidating language and also taking the name of their caste, -3- thereby they are alleged to have committed offences mentioned above.
3. On the basis of the complaint of PW.3, a case came to be registered in Crime No.256/2004 of Bagalkot Rural Police Station and after investigation, charge sheet came to be filed.
4. The prosecution in order to prove the case, has examined in all 10 witnesses and got marked Exs.P1 to P5 and produced MO.1. The defence of the accused was one of total denial. However at the stage of statement u/s.313 Cr.P.C., the accused have produced an order passed in O.S.No.165/2004 on the file of the Additional Civil Judge (Jr.Dn.) Bagalkot wherein, the Court has granted the permanent injunction against the complainant and his family members restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. The learned Special Judge having heard the arguments of both the sides, by the impugned order acquitted the accused. Aggrieved by the said order, the State has preferred this appeal.
5. Heard Sri K.S.Patil, learned High Court Government Pleader for the appellant - State and Miss.Nandini Somapur for -4- Sri B.V.Somapur, learned Counsel for the respondents - accused.
6. It is the case of the State that the incident has happened in the open space in front of the house of PW.3 and in the public view. The accused have uttered the abusive words taking the name of their caste and thereby, the accused have committed offence punishable under Section 3(1)(x)(xi) of SC/ST (POA) Act. It is further submitted by the learned High Court Government Pleader that based on the evidence of the prosecution witnesses, PWs.1 to 3, the offence punishable under Section 323 IPC is clearly made out against the accused persons, so also the offences punishable under Sections 504 and 506 IPC is made out and hence, the accused may be convicted by reversing the order of acquittal.
7. Learned Counsel for the respondents / accused on the other hand submits that there is no medical certificate for having suffered injuries by PW.3 or PW.4 and therefore, the offence punishable under Section 323 is not proved. She further submits that the incident has taken place between 8 and 9 p.m., in the night. It is not the case of the prosecution that either the public were present or the incident has occurred in -5- the public place. No members of the public were present and the incident happening in the public view is ruled out and hence the learned Special Judge could not have legally convicted the accused for the offence punishable under Section 3(1)(x)(xi) of SC/ST (POA) Act. It is further submitted that even prior to the date of the offence, the accused have obtained injunction order against the complainant and family members as per the judgment produced before the Court by the accused in Section 313 Cr.P.C. statement. Obviously there is a dispute between the complainant and the accused and there are no independent witnesses supporting PW.3 or his wife. She submits that the learned Special Judge is right in acquitting the accused and no interference is called for in the judgment of acquittal passed by the learned Special judge. Learned Counsel for the respondents further submits that PWs.1 and 3 belong to the same political party and that accused No.1 was the Panchayath President. PWs.1 and 3 have worked together against accused No.1 and therefore, PW.1 is in enemical terms with the accused persons. Hence, his evidence cannot be taken as corroboration to the evidence to PW.3. PW.1 has not stated the exact words spoken by accused No.1 and others. Hence, she submits that -6- the order of acquittal cannot be disturbed in this appeal and prays for dismissal of the appeal.
8. The case of the prosecution is that on 16.12.2004 at about 9 p.m., accused held weapons and threatened the complainant and also abused them in filthy language taking the name of their caste. Out of 9 witnesses, PWs.1 and 4 are the material witnesses. PWs.1 has not mentioned the exact words spoken to by the accused and PWs.2 and 3 have discrepancy regarding the words used by the accused. Insofar as offence punishable under Section 3(1)(x)(xi) of SC/ST (POA) Act is concerned. It is further seen that while PW.1 says that Mallappa assaulted Ramachandra and his wife, PW.3 says that Mallappa assaulted Ramachandra and Siddappa assaulted his wife Irawwa. The evidence of these two witnesses is discrepant with each other. PW.4 - Irawwa has given a different version of the incident and words alleged to have been used by accused Nos.3 and 4. PW.4 has turned hostile to the prosecution. PW.6 has also not supported the case of the prosecution. PW.7 is the signatory to Ex.P.3, which is panchanama to the scene of occurrence. PW.8 is the head constable who has sent the FIR to the Court. PW.9 is the PSI who has arrested accused No.1. -7- PW.10 is the Investigating Officer who has conducted the investigation by securing the caste certificates of the complainant and of the accused and has filed charge sheet.
9. On a careful scrutiny of the materials on record, it is seen that the prosecution has not proved that the injured PWs.3 and 4 have sustained injuries and therefore, the order of acquittal so far as the offence punishable under Section 323 is concerned cannot be disturbed. So far as the offences punishable under Sections 504 and 506 IPC are concerned, the evidence of PWs.1, 2 and 4 are discrepant and there is no corroboration with the evidence of all these 4 witnesses. Therefore, even the order insofar as the offences punishable under Sections 504 and 506 IPC is concerned cannot be interfered with. So far as the offence punishable under Section 3(1)(x)(xi) of SC/ST (POA) Act are concerned, the incident has taken place in front of the house of PWs.3 and 4 and it is not the case of the prosecution that it is a public place nor the accused have abused in the public view. The evidence of PWs.3 and 4 does not attract the offence under Act. Therefore, so far as the fact of abusing the complainant by the accused is concerned, there is no corroboration of evidence and neither -8- there is any evidence to show that any such abusive words were spoken in public view. In that view of the matter, the offence punishable under Section 3(1)(x)(xi) of SC/ST (POA) Act is not made out. For the forgoing reasons, the learned Special Judge has acquitted the accused.
10. This is an appeal against an order of acquittal. The appellate Court would not interfere with an order of acquittal unless it is shown that the judgement is perverse against settled principles of law or contrary to the evidence on record. I do not find any such illegality or perversity in the judgement passed by the learned Special judge. Therefore, this appeal has no merits. Accordingly, the appeal is dismissed.
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JUDGE nvj