Bangalore District Court
Kamakshipalya P.S vs A1 Yashoda on 17 August, 2024
KABC010250522016
IN THE COURT OF THE LXX ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 17th day of August, 2024.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXX Addl. City Civil and Sessions Judge and
Special Judge, Bengaluru.
Spl.Case.No.441/2016
COMPLAINANT: STATE
Represented by
Kamakshipalya Police Station,
Bengaluru.
(Rep.by Special Public Prosecutor).
-V/s-
ACCUSED : 1.Yashoda,
W/o.Venkatesh,
Aged about 42 years;
2.Venkatseh,
s/o.Bytappa,
Aged about 46 years;
3.Chethan,
S/o.Venkatesh,
Aged about 22 years;
All are R/at No.152, 7th A Main
road, Lakshmana Nagar,
2 Spl.C.441/2016
Sunkadakatte,
Bengaluru.
(Rep.by Sri.VK. for A1,3)
(A2-Proclaimed)
1. Date of commission of : 26.09.2015
offence
2. Date of report of Offence 27.09.2015
3. Name of the Complainant : Sri. Shashikala.B.N
4. Date of commencement of : 07.08.2018
recording of evidence
5. Date of closing of evidence : 15.11.2023
6. Offences Complained are : U/s.323, 504, 506
r/w.34 of IPC & Sec.3(1)
(x) of SC/ST(POA) Act,
1989.
7. Opinion of the Judge : A1 to 3 convicted for the
offence punishable u/s.
323 r/w.34 of IPC and
acquitted for the offences
punishable u/s.504, 506
r/w.34 of IPC & Sec.3(1)
(x) of SC/ST (POA) Act,
1989.
JUDGMENT
This case is registered on the basis of charge sheet submitted by ACP Vijayanagar Sub Division against the accused for the offences punishable 3 Spl.C.441/2016 under Section 323, 504, 506 r/w.34 of IPC & Sec.3(1)(x) of SC/ST(POA) Act, 1989.
2. The case of the prosecution is that on 26.9.2015 at about 3.30 p.m in Kamakshipalya, 4th main, 9th A Cross, while complainant was walking in the road, the accused persons with common intention stopped the victim assaulted her with hands and legs and abused as "ಬೋಳಿಮುಂಡೆ ಕೀಳುಜಾತಿಯ ಮುಂಡೆ ಈ ಜಾತಿ ಜನಗಳೇ ಇಷ್ಟು ನಾಯಕ್ ನನ್ನ ಮಗನ್ ಜಾತಿ ಹೊಲೆಯ ಮಾದಿಗರ ಜಾತಿ ಒಂದೇ ಜಾತಿ ಬುದ್ದಿ ಬಿಡಲ್ಲ " and abused in filthy language and threatened as "the mother of the complainant had filed cheque bounce case against the accused persons is to be withdrawn otherwise she will meet death", accordingly by giving life threat, assault is made on the victim.
3. On the basis of this, report has been made by the accused to the jurisdictional police on 4 Spl.C.441/2016 27.9.2015. Accordingly the jurisdictional police took up investigation and filed charge sheet.
4. At trial, the prosecution got examined PWs-1 to 5 and got exhibited Exs.P.1 to 10 and closed its side. The statement of the accused persons u/sec 313 recorded, read over and explained to the accused persons in vernacular language and the accused persons, denied all the incriminating evidence and they did not choose to lead defence evidence on their behalf.
5. Heard the arguments and perused the materials available on record.
6. The following points would arise for the determination of this Court are as follows;
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 26.9.2015 at 3.30 p.m when the complainant was going by walk on 9th A cross road, 4th Main road, Agrahara Dasarahalli, the accused Nos.1 to 3 in prosecution of their common intention, beat the complainant 5 Spl.C.441/2016 with hands and legs and thereby committed an offence punishable U/s 323 r/w.34 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, the accused Nos.1 to 3 in prosecution of their common intention abused C.W.1 in filthy language with an intent to insult her and to provoke breach of peace and thereby committed the offence punishable under Section 504 r/w.34 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, the accused Nos.1 to 3 in prosecution of their common intention criminally intimidated C.W.1 by giving life threat to her and thereby committed the offence Punishable under Section 506 r/w.34 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that aforesaid date, time and place, the the accused Nos.1 to 3 in prosecution of their common intention accused persons not being the member of SC/ST, intentionally insulted/intimidated with intent to humiliate the CW1, who being a member of SC-Adi Karnataka in a place within the public view and thereby committed an offence punishable under Section 3(1)(x) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act?
5. What Order?
7. My findings to the above points are as follows;
6 Spl.C.441/2016 Point No.1 : In the Affirmative Point No.2 to 4: In the Negative Point No.5: As per final order for the following;
REASONS
8. POINT No.1: The prosecution to prove the ingredients of alleged offence punishable u/Sec.323, 504, 506 r/w.34 of IPC basically relies on the complaint which is as follows:
The complainant in her complaint dated:27.9.2015 submits as on 26.9.2015 she after the pooja is completed in Shaneshwara Swamy temple of Agrahara Dasarahalli, she was returning home, at that time the accused persons came from back following the complainant, they stopped her, the accused suddenly attacked her with hands and legs, the accused No.1 held the hairs of the complainant, the accused No.2 assaulted with hands 3 to 4 times, and accused 7 Spl.C.441/2016 No.3 assaulted with legs on the abdomen of the victim.
During the incident the accused persons abused her as "ಬೋಳಿಮುಂಡೆ ತತ್ತಿ ಮುಂಡೆ ಕೀಳುಜಾತಿ ಮುಂಡೆ ಈ ಜಾತಿ ಜನಗಳೇ ಇಷ್ಟು ನಾಯಕ್ ನನ್ನ ಮಗನ್ ಜಾತಿ ಹೊಲೆಯ ಮಾದಿಗರ ಜಾತಿ ಒಂದೇ ಎಷ್ಟೇ ಹೊಡೆದರು ಎಷ್ಟೇ ಬೈದರು ಈ ನನ್ಮ ಗಂದ್ಕೀಳ್ಜಾತಿ ಬುದ್ದಿ ಬಿಡುವುದಿಲ್ಲ , ನಿಮಮ್ಮ ಏನಾದರು ನಮ್ಮ ಮೇಲೆ ಹಾಕಿರುವ ಚೆಕ್ ಕೇಸನ್ನು ವಾಪಸ್ ತೆಗೆಯದಿದ್ದ ರೆ ನಿಮೆಲ್ಲ ರನ್ನು ತೆಗೆದುಬಿಡುತ್ತೇನೆ " The accused by threatening with dire consequences assaulted and went away. The victim had fallen on the ground in the road, one auto driver Sathish S/o.Shivappa Poojari who was coming there, rescued the victim from the hands of the accused persons. He took her to Madhu hospital where the complainant took treatment, after returning from hospital she reported the same before the jurisdictional police, on the basis of the complainant Investigating Officer took up investigation by registering Cr.No.587/2015.
8 Spl.C.441/2016
9. The prosecution in proof of this case got examined the complainant as P.W.1. In the evidence of complainant, complainant deposed similarly that on 26.9.2015 during the afternoon in Agrahara Dasarahalli after attending pooja in Shaneshwariswamy temple she was returning at 1.30 to 2.00 p.m. at that time, the accused persons coming from behind stopped the victim, assaulted her, the accused No.1 held the hairs of the victim, accused No.3 assaulted with legs on her abdomen thrice, accused No.2 with his nails scratched on the forehand and also gave blow on the back of the victim 3-4 times. After abusing the victim by accused No.1, all of them by abusing as "¨ÉÆýªÀÄÄAqÉ, PÀvÉÛªÀÄÄAqÉ, QüÀÄeÁwªÀÄÄAqÉ, £ÁAiÀÄPÀ£À£ÀߪÀÄUÀ¼ÀÄ, £ÁAiÀÄPÀ £À£ÀߪÀÄUÀ£ÀeÁw, ºÉƯɪÀiÁ¢UÀgÀ eÁw, JµÀÄÖ ºÉýzÀgÀÆ PÉýªÀÅ¢®è, QüÀÄeÁwAiÀĪÀ¼ÀÄ JAzÀÄ ¨ÉÊzÀ¼ÀÄ" and went away. The complainant has deposed accused No.3 has mentioned mother of 9 Spl.C.441/2016 the victim had filed cheque bounce case, the same is to be withdrawn, otherwise she will meet dire consequence. Accordingly all of them went away, one auto driver Sathish who stopped the auto and took the victim to the hospital. The victim submits she got treatment and her mother came to the hospital, from there she went to K.C.General hospital, after getting surgery done, she went to Kamakshipalya police to lodge complaint.
10. The victim on seeing the complaint identified her signature which are marked as Ex.P.1(a) on Ex.P.1. She further deposes drawing of spot Mahazar and submits her mother by filing cheque bounce case against accused persons for non-payment of amount in that regard only they have abused and assaulted her. In her cross examination dated: 8.4.2024 specifically denies the suggestions made by learned counsel for the 10 Spl.C.441/2016 accused. This witness deposes she cannot give the date and the case number that mother had filed. This witness deposes while her mother went to police to lodge complaint against accused, her mother was advised by police Balegowda to file cheque bounce case. This witness deposes she does not know whether her mother had filed cheque bounce case or any. This witness deposes accused never came to her and talked about the cheque bounce. However this witness deposes she knows the accused only through her mother. This witness deposes she does not know whether cheques have been given by the accused to her mother. This witness admits her mother was well with the accused persons before the incident. This witness deposes she does not know since how many years her mother was knowing the accused persons. This witness admits her mother had no relationship with accused so as to give amount and receive cheque. This witness deposes 11 Spl.C.441/2016 accused No.1 is belonging to 'madivala' caste. Witness replies she does not know. This witness deposes accused persons are belonging to 'Christian caste' as she knows from her mother. This witness deposes by denying accused Nos.2 and 3 are belonging to schedule caste. This witness deposes her mother was not introduced by accused. This witness denies the suggestions made no any incident happened. This witness denies only to have early payment of the amount, she has made false complaint. This witness gave time when she went to the temple and at what time she has been assaulted. This witness denies all the suggestions made by the learned counsel for the accused. This witness deposes Sathish is the person who came to her rescue. This witness deposes on the date when she gave complaint on the same day police have conducted spot Mahazar. She denies other suggestions.
12 Spl.C.441/2016
11. The P.W.2 Lakshmamma is another witness who deposes about assault being made on her daughter by the accused persons in Agrahara Dasarahalli Circle. This witness submits she knows the accused persons and her daughter has been assaulted and abused by the accused persons, she shifted her daughter to K.C.General hospital, later it has been reported to the police. This witness deposes she has been enquired by the jurisdictional police. In her cross examination dated:16.9.2023 this witness deposes she has given complaint to the police. This witness deposes she filed cheque bounce case in 2014 which has ended in her favour. This witness denies all the suggestions that no any incident happened as per the prosecution case.
12. The P.W.3 Gnanamurthy is the PSI who registered the crime on 27.9.2015 at about 8.45 a.m. This witness deposes about registering 13 Spl.C.441/2016 Cr.No.287/2015 and further SC/ST (POA) Act 1989. This witness deposes by identified his signature at Ex.P.1 and also submits he has sent the FIR to the jurisdictional court. This witness deposes he conducted spot Mahazar on the same day from 9.30 to 10.15 a.m where the complainant had shown about the incident being happened. This witness deposes about preparing sketch as per Ex.P.4. This witness deposes on the same day as the proceedings is to be conducted by the ACP as per SC/ST (POA) Act 1989, he handed over the further investigation. In the cross examination this witness denies the suggestions made by the learned counsel for the defence.
13. The P.W.4 Thyagaraj another witness who deposes about drawing Mahazar as per Ex.P.2 in his presence. This witness deposes he came to know that while coming from Shaneshwara 14 Spl.C.441/2016 temple, accused did assaulted her. This witness deposes accused did gave life threat to take back the case. This witness in cross examination admits he knows the accused through his elder sister. This witness denies he has been called by Shashikala by telephoning him to be a panch witness. This witness denies other suggestions made by the learned counsel for the accused.
14. The P.W.5 S.K.Umesh as ACP who conducted the investigation on obtaining further investigation. This witness deposes about obtaining order from the DCP and as per Exs.P.6 and 7 he has sent requisition to get caste report as per Exs.P.8 and 9, on receiving the documents wound certificate he filed charge sheet against the accused.
15. In the case on hand, to prove the ingredients of offence punishable u/s.323 of IPC the 15 Spl.C.441/2016 complainant has specifically deposes in her examination in chief in consonance with the complaint wherein she has specified the accused No.1 has held her hair, accused Nos.2 and 3 have assaulted her on her back, on her abdomen by hands and legs. In the case on hand, to prove the spot Mahazar being drawn by the Investigating Officer, P.W.3 Gnanamurthy PSI has specifically mentioned in the panchanama about drawing Mahazar as per Ex.P.2 in presence of panchas. The prosecution was able to examine one Pancha by name Thyagaraj as P.W.4 who deposed about Shashikala had shown about the spot where she has been assaulted with knife and also assaulted on her chest and the SC/ST (POA) Act 1989 has been registered by the police. Further she has been threatened. The police have driven Mahazar in his presence. In the cross examination of P.W.4, this witness deposes he cannot give boundary of the spot. This witness deposes he 16 Spl.C.441/2016 knows the complainant since 15 years. This witness deposes he knows all the family members of the complainant. This witness denies he has been telephoned and called to the spot to be the panch witness. This witness deposes he has not given any documents about his address to the police. The explanation offered by the P.W.4 during his course of cross examination clearly shows that he was present for drawing the spot Mahazar. Under these circumstances, the evidence of the complainant and spot Mahazar witnesses are sufficient to consider the accused had assaulted the victim. Therefore in the case on hand, on going through the material on record, the ACP has charge sheeted the accused even the wound certificate is placed on record through the Investigating Officer discloses scratch wound on the forearm of the victim and tenderness over the lower back and lumbar region. The injuries have coercion with the spot wherein complainant has 17 Spl.C.441/2016 alleged assault made on her. In the case on hand, the evidence of panch witness and the complainant are direct to the incident happened even the Medical Officer has specifically noted 3 members have assaulted the victim in Dasarahalli namely the name of the assailants has been also mentioned by Medical Officer Yashoda, Venkatesh and Chethan. In fact the Medical Officer is not examined. As per sec.223 the evidence of Medical Officer is a formal evidence. As such material placed are sufficient to consider the ingredients of alleged offence punishable u/s.323 of IPC being proved. Accordingly this court is satisfied to answer the Point No.1 in the Affirmative.
16. POINT NO.2: In fact to prove the Point No.2 with regard to causing inconvenience to the complainant by abusing her in filthy language so as to cause public disturbance namely breach of 18 Spl.C.441/2016 public peace, the complainant has specifically deposed in her complaint in page-2 of her examination in chief that accused persons did assaulted her and abused her as ""ಬೋಳಿಮುಂಡೆ ತತ್ತಿ ಮುಂಡೆ ಕೀಳುಜಾತಿ ಮುಂಡೆ ಈ ಜಾತಿ ಜನಗಳೇ ಇಷ್ಟು ನಾಯಕ್ ನನ್ನ ಮಗನ್ ಜಾತಿ ಹೊಲೆಯ ಮಾದಿಗರ ಜಾತಿ ಒಂದೇ ಎಷ್ಟೇ ಹೊಡೆದರು ಎಷ್ಟೇ ಬೈದರು ಈ ನನ್ಮ ಗಂದ್ ಕೀಳ್ಜಾತಿ ಬುದ್ದಿ ಬಿಡುವುದಿಲ್ಲ , ನಿಮಮ್ಮ ಏನಾದರು ನಮ್ಮ ಮೇಲೆ ಹಾಕಿರುವ ಚೆಕ್ ಕೇಸನ್ನು ವಾಪಸ್ ತೆಗೆಯದಿದ್ದ ರೆ ನಿಮೆಲ್ಲ ರನ್ನು ತೆಗೆದುಬಿಡುತ್ತೇನೆ " . With regard to this, the witness has deposed she has been shifted by one Satish to Madhu hospital from there she went to K.C.Gen.hospital as her mother C.W.3/P.W.2 Lakshmamma had further took her to treatment. Lakshmamma P.W.2 has deposed about on coming to know about the incident her daughter has been abused. With regard to the case, the P.W.2 has deposed accused No.1 had borrowed amount and she has filed cheque bounce case against the accused No.1. Therefore due to ill-will she has assaulted 19 Spl.C.441/2016 and abused is the allegation. In her cross examination, specifically admit she does not know the incident being happened personally. This witness deposes her cheque bounce case is already over. This witness pleads ignorance about the caste of the accused Nos.2 and 3 and even accused No.1. With regard to the abuse made in public place, the prosecution has to place evidence of independent witnesses to show that incident did happened which has caused breach of public peace. In the case on hand, the material witness namely C.W.2 is not at all secured who is the person who rescued the victim and who was present in the spot as per the prosecution case. In fact the summons, warrant and proclamation issued against CWs.2 and 5 , but these independent witnesses were unable to be secured by the prosecution. Under these circumstances, In the absence of corroborative evidence, to prove the ingredients of offence punishable u/s.504 of 20 Spl.C.441/2016 IPC, this court is satisfied to answer the Point No.2 in the Negative.
17. POINT NO.3: In the case on hand, complainant has specifically mentioned in the complaint that she has been given life threat by the accused persons. In the evidence of complainant she has specifically mentioned in page-2 of her evidence that she has been abused in filthy language. This witness has not specified that she has been given life threat by the accused persons. In fact in the cross examination of P.W.1 in page-5 dated:8.4.2024 this witness deposes she knows the accused only through her mother and she does not know them personally and the complainant admits accused never talked to her before. This witness deposes she does not know what is the amount under cheque to which her mother has filed cheque bounce case. This witness deposes she does not know when the 21 Spl.C.441/2016 amount has been borrowed by the accused persons from her mother. This witness specifically admits the accused were in good terms with her mother and her mother was knowing them. This witness admits accused and her mother had relationship so as to make payment and receive the same. This witness does not deposes specifically about life threat given to the complainant.
18. The P.W.2 Lakshmamma deposed about assault being made by the accused persons and also abused him in her examination in chief at page-2 first 3 lines. However she does not depose about life threat given by the accused persons. The prosecution though examined P.W.4 Thyagaraj this witness has deposed that victim has been assaulted with knife and she has been given threat, but the nature of threat has not been specified by the panch witnesses. Under 22 Spl.C.441/2016 these circumstances, in the absence of substantial material evidence to show accused has been given life threat, this court is satisfied to answer Point No.3 in the Negative.
19. POINT NO.4: With regard to the offence punishable u/s.3(1)(x) of SC/ST (POA) Act 1989 the prosecution has specifically mentioned that the accused persons are belonging to different caste from that of complainant. The caste certificates issued by Tahasildar as per Ex.P.7 and 8 are not disputed. In fact in the case on hand as per Ex.P.7, the victim is belonging to ST Nayak community. As per Ex.P.7 the accused No.1 is belonging to 'madivala community' and accused Nos.2 and 3 are belonging to Adi Karnataka' as accused No.2 father of the accused No.3 is Adi Karnataka, the accused No.3 also gets the caste of his father seems reasonable one. Under these circumstances, the Atrocity Act 23 Spl.C.441/2016 punishable u/s.3(1)(x)of SC/ST (POA) Act 1989 cannot be attributed against accused Nos.2 and
3. In fact as per the complaint, accused No.1 has abused the complainant in filthy language and also taking her caste name as follows:
"ಬೋಳಿಮುಂಡೆ ತತ್ತಿ ಮುಂಡೆ ಕೀಳುಜಾತಿ ಮುಂಡೆ ಈ ಜಾತಿ ಜನಗಳೇ ಇಷ್ಟು ನಾಯಕ್ ನನ್ನ ಮಗನ್ ಜಾತಿ ಹೊಲೆಯ ಮಾದಿಗರ ಜಾತಿ ಒಂದೇ ಎಷ್ಟೇ ಹೊಡೆದರು ಎಷ್ಟೇ ಬೈದರು ಈ ನನ್ಮ ಗಂದ್ ಕೀಳ್ಜಾತಿ ಬುದ್ದಿ ಬಿಡುವುದಿಲ್ಲ , ನಿಮಮ್ಮ ಏನಾದರು ನಮ್ಮ ಮೇಲೆ ಹಾಕಿರುವ ಚೆಕ್ ಕೇಸನ್ನು ವಾಪಸ್ ತೆಗೆಯದಿದ್ದ ರೆ ನಿಮೆಲ್ಲ ರನ್ನು ತೆಗೆದುಬಿಡುತ್ತೇನೆ ". In proof of this other than the complainant, no any so called eye witnesses C.W.2/Sathish has not been secured by the prosecution even though proclamation has been issued. Under these circumstances, to prove the ingredients of alleged offence punishable u/s.3(1)
(x) of SC/ST (POA) Act 1989, the material placed by the prosecution falls short. Accordingly, in the absence of corroborative evidence, this court is satisfied to answer Point No.4 in the Negative.
24 Spl.C.441/2016
20. POINT NO.5 : The accused persons do complied the provisions of section 437A of Cr.P.C., by providing personal bond before this court, for their appearance before the Hon'ble Appellate court. In view of my foregoing reasons, I proceed the pass the following;
ORDER Acting under Section 235(2) of Cr.P.C., the accused Nos.1 to 3 are convicted of the offence under Section 323 r/w.34 of IPC.
The accused Nos.1 to 3 are
sentenced to pay fine of
Rs.1,000/- each, in default
accused Nos.1 to 3 shall undergo
imprisonment for a period of 6
months.
The accused Nos.1 to 3 are
acquitted of the offences under
Section 504, 506 r/w.34 of IPC &
Sec.3(1)(x) of SC/ST(POA) Act,
1989.
The accused Nos.1 to 3 are set
at liberty.
25 Spl.C.441/2016
However, the bond executed in
compliance of Sec.437(A) of
Cr.P.C., shall be in force till
appeal period.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected, signed and then pronounced by me in open Court on this the 17th day of August 2024).
(Rajesh Karnam.K) LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru.
ANNEXURE
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Shashikala
P.W.2 : Laxmamma
P.W.3 : Jnanamurthy
P.W.4 : Thyagaraj
P.W.5 : S.K.Umesh
2.DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Complaint
26 Spl.C.441/2016
Ex.P.1(a)(b) Signature of PW.1,3
Ex.P.2 : Spot panchanama
Ex.P.2(a)(b)(c) Signature of PW.1,3,4
Ex.P.3 : FIR
Ex.P.3(a) : Signature of PW.3
Ex.P.4 : Rough sketch
Ex.P.4(a) : Signature of PW.3
Ex.P.5 : Dep.Order
Ex.P.6 : Requisition
Ex.P.6(a) : Signature of PW.5
Ex.P.7 : Requisition
Ex.P.7(a) Signature of PW.5
Ex.P.8 : Caste report of accused
Ex.P.8(a) Signature of PW.5
Ex.P.9 : Caste report of complainant
Ex.P.9(a) Signature of PW.5
Ex.P.10 : Wound certificate
Ex.P.10(a) Signature of PW.5
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil 27 Spl.C.441/2016
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
Nil (Rajesh Karnam.K) LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru