Karnataka High Court
State Of Karnataka vs M. Chandrappa And Anr. on 7 February, 1986
Equivalent citations: ILR1986KAR1210, 1986(1)KARLJ338
JUDGMENT Patil, J.
1. The State has filed this appeal being aggrieved by the judgment and order of acquittal dt. 31-3-84 passed by the J.M.F.C., Mudigere, in C.C. No. 861/1984, on his file, acquitting respondents-accused (1) & (2) of the charge of the offences punishable under Ss. 504, 353 R/W 34 IPC, levelled against them.
2. A-1 M. Chandrappa is a teacher A-2 H. Manjula is his wife PW-5 Chikkegowda being police constable at the time of the incident was attached to Kalasa Police Station. PW-4 N. Shivanna, who is the Head Master of the school, where A-1 was working, it would appear, had given a complaint to the police. A1 was under an impression that some police had come to make inquiry into that complaint given against him. On 10-11-1982 when PW-5 who had gone out to Gummankhan Estate in search of some know depradator and while returning back from there was waiting at Hirebail to catch a bus, it is the case of the prosecution, A-1 accompanied by his wife A-2 went to the bus-stop, where PW-5 was waiting for bus, abused and questioned him if he was the police officer who had come for enquiry and while abusing him, he slapped him. It is stated A-2 who was accompanying him also abused him in indecent words and also threatened to beat him by means of brooms. In that process, due to mandhandling by A-1, the buttons of the uniform worn by PW-5 were also torn. He went to the police station and complained about the same. On the basis of the complaint given by him as per Ex. P-4, case was registered and after seizing the two buttons found lying at the bus-stop and after recording the statements of material witnesses who were present and witnessed the incident taking place, charge-sheet was sent against the accused.
3. The defence of the accused was one of denial. The further defence tried to be made out was that at the instance of PW-4, the PSI had got foisted a false cases.
4. The learned Magistrate, while appreciating the evidence adduced on behalf of the prosecution rejected the evidence as being highly discrepant and in that view he having acquitted, the State has filed this appeal.
5. Mr. Nanjundaiah, Additional Public Prosecutor, submitted that not only PW-5 P.C., Chikkegowda himself has stated the circumstances in which A-1 and A-2 came abusing, A-1 assaulted and A-2 threatened him to beat, as narrated in the complaint, but independent witnesses present near about the place of incident had also stated about the happening. Although there are some discrepancies in the evidence, but it cannot be said the evidence is so discrepant as to reject it altogether her and the court was not justified in acquitting the accused. He submitted, the offence committed has been proved and the accused deserve to be convicted. Mr. Chandrasekharaiah, learned counsel for the respondents-accused, submitted : so far as the charge of the offence under S. 504, IPC is concerned, neither there are any specific allegations in the accusation stated to the accused as to the manner and the words used by the accused, nor there is clear and satisfactory evidence to show in what actual words the accused had abused so as to hold that there was likelihood of breach of peace. The evidence adduced apart from being discrepant, as observed by the Magistrate, the offence if at all made out was one punishable under S. 352 and not S. 353 IPC.
6. PW-5 Chikkegowda, who is the complainant in the case, has stated in detail in his evidence consistent with the version of the incident as recorded in the complaint Ex. P-4 as to how A-1 and A-2 came to the bus-stop where he was waiting for bus, as also how A-1 assaulted him and A-2 also abused and threatened to beat him. PW-1 Vittalaraya, PW-3 Madava Bandari, PW-6 Vaikunta Bhatta and PW-7 Achutha Mastri, who have their shops close to the place of incident at the bus-stop, and PW-2 Razak who claims to be a cooly working at the bus-stop, have all stated not only about PW 5's presence there, but also as to the manner in which A-1 and A-2 came there abusing and A-1 assaulted. The evidence given by them, however, is discrepant in so far as the part played by A-2 in commission of the offence. While PWs-1 and 2 do not even refer to her presence there, PWs-6 and 7 do not speak of she having assaulted PW-5 himself. Although PW-3 has stated that she in fact picked up a stone threatening to assault, but PW-5 himself does not say that she had picked up any stone or threatened to assault him by means of stone. He however stated that she abused him in indecent words and threatened to beat him by broom-stick. Although the discrepancies are minor, in that they are not in uniform in saying about the presence and also the part played by her, such discrepancies in small incidents showed that either she was not present or if she was present, she had not played any part in the incident that allegedly took place. Therefore it cannot be said the prosecution has successfully proved the charge of the offence levelled against A-2. However, the evidence given by the complainant and all the witnesses who claim to have been present there unmistakably points to the direction that A-1 did assault and man-handled PW-5. The fact that the shirt of PW-5 was torn when his personal search was taken in the police station by the P.S.I. and two buttons of the shirt torn were also found lying on the scene of offence showed that the incident did take place and the presence of the buttons at the scene of offence lends assurance to the testimony of the witnesses as to the assault. The question, however, is whether the offence committed is one punishable under S. 353 IPC.
7. Although there is no doubt PW-5 has stated that he had been deputed on duty to search the known depradator and he was returning back to report about the efforts made by him, neither the fact that he had been so deputed on duty and was returning to report to the police station regarding the duty entrusted to him, nor the fact that he was in the uniform is sufficient to hold the offence committed is one punishable under S. 353 IPC. Of course, a police constable is a police officer and supposed to be so all the 24 hours of the day in as much as he can at any moment may be called upon to duty. But in order to sustain a charge of the offence punishable under S. 353 IPC, what has to be established is that the public servant was actually engaged in execution of the duty. Since at the time when the incident is alleged to have taken place PW-5 was merely waiting for a bus to reach the police station, it cannot be said he was engaged in executing the duty and in our view the charge of the offence under S. 353 IPC cannot be sustained. The view that we are taking on the facts of the case is also supported by the decision reported in the case of Richard Saldana v. State . However, as stated earlier, the evidence does show that A-1 did assault PW-5 and he is guilty of the offence punishable under S. 352 IPC and the court below was therefore not justified in making an order of wholesale acquittal of A-1.
8. Mr. Chandrasekharaiah, however, submitted that in the given facts and circumstances of the case as also taking into consideration the mental pressure under which A-1 was placed at the time of the incident because of the apprehension of the police enquiry on the complaint made by PW-4, there is possibility of he committing the acts of assault and therefore it is not at all necessary to sentence him to any punishment and the ends of justice would fairly be met if he is released on due admonition. We are inclined to accept this contention. There is no denial of the fact that PW-4 had made a complaint against A-1 and the possibility of A-1 coming to know that some sort of enquiry was made against him and thinking that PW 5 was the one who had come to enquire under such mental pressure he assaulting PW-5 cannot be ruled out. Therefore, it appears, it is not at all necessary to impose any sentence and the ends of justice would be fairly met if A-1 is released on admonition.
In the result and for the reasons stated above, we confirm the order of acquittal passed by the court below in so far as A-2 is concerned. We reverse the order of acquittal passed by the court below in so far as A-1 is concerned and convict him for the offence punishable under S. 352, IPC and instead of sentencing him, we release him on admonition under S. 3 of the Probation of Offenders Act. We also make it clear that as provided under S. 12 of the Probation of Offenders Act and as observed by their Lordships of the Supreme Court in the case of Rajbir v. State of Haryana his conviction shall not suffer disqualification for holding the post hand continuing in service.
10. Order accordingly.