Karnataka High Court
Smt. Neelamma W/O Gurupad Handi vs Annappa S/O Shivabasappa Hanagandi Ors on 28 August, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 28TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
CRIMINAL APPEAL No.3709/2011
BETWEEN:
SMT. NEELAMMA W/O GURUPAD HANDI
AGED ABOUT 49 YEARS, OCC: COOLIE
R/O SAVANALLI, TQ. & DIST. BIJAPUR
... APPELLANT
(BY SRI SHIVANAND PATTANASHETTI, ADVOCATE FOR
SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. ANNAPPA S/O SHIVABASAPPA HANAGANDI
AGED 40 YEARS, OCC: GOVT. SERVICE
2. BASAVVA SHIVABASAPPA HANAGANDI
AGED 34 YEARS, OCC: HOUSEHOLD WORK
3. BOURAWWA W/O JAGAPPA HANAGANDI
AGED 24 YEARS, OCC: HOUSEHOLD WORK
ALL ARE R/O SAVANALLI
4. THE STATE OF KARNATAKA
REPRESENTED BY
ADDL. SPP, CIRCUIT BENCH
GULBARGA
... RESPONDENTS
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(BY SRI R.S.LAGALI, ADVOCATE FOR R1 TO R3,
SMT. ANURADHA DESAI, ADDL. SPP FOR R4)
THIS CRIMINAL APPEAL FILED UNDER SECTION 372 OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 28.07.2011 PASSED IN CRL. APPEAL NO. 50/2007 BY
THE III ADDL. SESSIONS JUDGE AT BIJAPUR AND CONFIRM
THE ORDER OF CONVICTION AND SENTENCE DATED
01.06.2007 PASSED IN S.C.NO.870/2006 BY THE J.M.F.C.-II AT
BIJAPUR AND CONSEQUENTLY CONVICT THE RESPONDENT
Nos. 1 TO 3.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of 3rd Additional Sessions Judge, Bijapur dated 28.07.2011 passed in Criminal Appeal No.50/2007 whereunder appeal filed by the accused under Section 374 of Cr.P.C came to be allowed and judgment of conviction passed by Second JMFC, Bijapur in C.C.No.870/2006 dated 01.06.2007 has been set aside by acquitting all the three accused.
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2. Heard Sri Sanjeevkumar C. Patil, learned counsel appearing for appellant, Sri R.S.Lagali, learned counsel appearing for respondent Nos.1 to 3 and Smt. Anuradha Desai, learned Additional State Public Prosecutor appearing for respondent No.4 - State. Perused the judgments of the Sessions Court as well as JMFC Court.
3. Gist of the prosecution case is: On 19.01.2006 at about 7.00 a.m. all the accused who are resident of Savanalli village with a common intention to quarrel with the complainant committed criminal trespass by barging into the house of complainant - Smt. Neelawwa Handi and thereafterwards, they dragged her out, by holding her hand and pulled her saree and kicked her, used abusive language with an intention to outrage her modesty. On these lines complaint came to be lodged and jurisdictional police station registered a case in Crime No.15/2006 against accused persons for the -4- offences punishable under Sections 451, 354, 323, 504 r/w Section 34 of IPC by Babaleshwar Police Station. Investigation was taken up and statement of witnesses was recorded and thereafter charge sheet was filed. Learned Magistrate after hearing the accused, framed the charge against them for the offences punishable under Sections 451, 354, 504 r/w Section 34 of IPC.
4. Prosecution in support of its case examined six witnesses as PW1 to PW6 and four documents were marked as Exs.P1 to P4. No M.Os. were marked before JMFC. After recording the statement of accused persons under Section 313 of Cr.P.C., learned Magistrate by judgment dated 01.06.2007 convicted the accused persons under Section 255(2) of Cr.P.C. for the offences punishable under Sections 451, 354, 504 r/w Section 34 of IPC and directed them to undergo simple imprisonment for a period of one month and ordered for payment of a fine Rs.2,000/- each for the offence -5- punishable under Section 451 r/w Section 34 of IPC, sentenced them to pay a fine of Rs.2,000/- each for the offence punishable under Section 354 r/w Section 34 of IPC and in default to undergo simple imprisonment for a period of one month each and also sentenced them to pay a fine of Rs.2,000/- each for the offence punishable under Section 504 r/w Section 34 of IPC in default to undergo simple imprisonment for a period of one month each.
5. Aggrieved by this judgment, accused persons filed an appeal before the Sessions Court in Criminal Appeal No.50/2007. After securing the records and hearing the arguments advanced by the learned advocate appearing for appellant and learned Public Prosecutor, appellate Court interfered with the findings recorded by JMFC and set aside the judgment and conviction passed by JMFC Court, it is this judgment of -6- the appellate Court, which is questioned by the complainant before this Court in the present appeal.
6. It is the contention of Sri Sanjeevkumar C. Patil appearing for appellant/complainant that, judgment of JMFC Court was based on sound appreciation of the evidence, which did not call for interference at the hands of the appellate Court and the fact that PW2 was assaulted by dragging her out of the house by the accused persons with an intention to outrage her modesty has remained proved and as such, minor inconsistencies, even if any, in the evidence of witnesses were not sufficient enough to discard the finding given by JMFC Court and as such, he seeks for setting aside the order of the appellate Court. He would also further contend that prosecution has relied upon evidence of PW2 and PW4 who are the material witnesses and the corroborative evidence of Doctor - PW1 as also pancha PW3 would establish the guilt of -7- the accused and re-appreciation of the evidence by the appellate Court was contrary to the facts on record and as such, same is liable to be interfered with. He would further contend that appellate Court erred in not considering the fact that witnesses PW1 to PW6 who are the material witnesses had supported the case of the prosecution and Sessions Court erred in disbelieving the said witnesses without properly appreciating and analyzing the said evidence and contends that it cannot be discarded as being either as unworthy or not inspiring confidence for being accepted. He contends that even if the defective investigation is accepted as sought to be made out by the Sessions Court, same cannot be a ground to acquit the accused. On these grounds, he seeks for allowing of the appeal.
7. Per contra, learned counsel appearing for accused Nos.1 to 3 would support the judgment of the Sessions Court by contending that evidence tendered by -8- the parties before the Magistrate Court, was scrutinized, analyzed and tested with reference to the material evidence available on record to arrive at a conclusion that there is inconsistency and said evidence does not inspire confidence for being accepted and as such, he submits that there is no infirmity in the order passed by the Appellate Court, which calls for interference by this Court. He would also contend that admittedly, there was some disharmony between two families namely appellant and accused on account of bullock-cart belonging to the accused having dashed against the front portion of the platform of the house of appellant/complainant and on account of same, a false compliant has been lodged against accused persons and contends, this material evidence was taken into consideration by the appellate Court to upset the findings of the Magistrate Court and acquit the accused, which does not call for interference and he prays for rejection of the appeal.
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8. Learned Additional State Public Prosecutor supports the arguments advanced by learned counsel appearing for appellant as also judgment rendered by the Magistrate Court convicting the accused persons and prays for allowing the appeal.
9. Having heard the learned Advocates appearing for the parties and on perusal of the judgments rendered by Magistrate Court as well as by Sessions Court, it is noticed PW2 and PW4 are the material witnesses which was relied upon by prosecution. PW2 is the complainant at whose instance criminal law was set into motion and prosecution came to be launched by the jurisdictional Police. It was her specific case in the complaint that accused No.1 while taking his bullock- cart had dashed against the platform in front of her house on account of which, said platform had collapsed and she was insisting accused No.1 to get it repaired and he went on postponing the re-construction on one
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ground or the other and the complainant was constantly and repeatedly requesting accused No.1 to re-construct the demolished platform and in this regard when she requested the accused on 19.01.2006 at about 7.00 a.m. while he was proceeding in front of her house, he is said to have trespassed into the house of complainant, dragged her out, abused her in filthy language resulting in fisticuffs and contended that this incident was witnessed by Raju, Shivappa Biradar and Sabu Kallappa. Admittedly, prosecution did not examine Raju Shivappa Biradar and only Sabu Kallappa was examined as PW4. She has not stated in her evidence as to the exact place where these two persons (witnesses) were there. At one place in the cross- examination, she states there were no other persons when the incident took place and at another place she says these two persons were present. In fact, in the compliant Ex.P2, she has not specified as to which of the accused caught hold of her hand and which accused
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pulled her saree or dragged her out. Hence, this aspect is silent namely as to which of the accused had caught hold of her and dragged her out by pulling her saree. Evidence of PW4 is to the same effect, namely on the lines of the evidence of PW2. In fact, PW4 states in his evidence that while complainant Smt. Nellawwa Handi was pulled out and dragged, the bangles worn by her were broken into pieces and had fallen at the spot. However, evidence of PW2 is silent on this aspect. There is no whisper in her evidence on this issue at all. Admittedly, panchanama does not state as to whether there were any broken pieces of bangles found at the spot.
10. Appellate Court having referred to the evidence of PW2 and PW4 in extenso found contradictions and inconsistencies, which has been succinctly enumerated in para 13 of its judgment to arrive at a conclusion that claim of prosecution creates
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serious doubt and the benefit of such doubt is to be extended to the accused persons by relying on the judgment of the Hon'ble Apex Court in the case of NAMDEO DAULATA DHAYAGUDE AND OTHERS V. STATE OF MAHARASHTRA reported in 1977 Cri. LJ page - 238. Sessions Court (Appellate Court) has rightly held that in the light of the contradictions found in the evidence of PW2 and PW4, said evidence requires to be examined with utmost circumspection since the particulars with regard to manner in which the incident has taken place and the specific role played by each of the accused and their intention to outrage the modesty of the complainant was in doubt. On these grounds, Appellate Court has rightly held that it would be unsafe to convict the accused based on contradictions, as such extending the benefit of doubt to the accused persons has reversed the finding of the Magistrate Court. This finding is based on a sound appreciation of principles of
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law as well as evidence on record and the same does not call for interference.
Hence, appeal stands rejected.
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JUDGE NB*/sp