Karnataka High Court
Mahadev S/O Hanamant Kaleli, vs The State Of Karnataka, on 11 July, 2019
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRL.A NO 2522 OF 2011
BETWEEN
MAHADEV S/O HANAMANT KALELI,
AGE: 37 YEARS, OCC: SERVICE IN MILITARY,
R/O MURAGUNDI,
PRESENT AT 56 APO NAIK NO.
2793418, IX BATTALION.
..... APPELLANT
(BY SRI G.M. BHAT, ADV.)
AND
THE STATE OF KARNATAKA,
THROUGH ATHANI POLICE,
REPPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH BUILDING,
DHARWAD.
..... RESPONDENT
(BY SRI PRAVEEN UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C.
SEEKING TO SET ASIDE THE CONVICTION AND SENTENCE
DATED 04.01.2011 PASSED BY THE COURT OF THE SPECIAL (III
ADDL. SESSIONS) JUDGE, BELGAUM, AT:BELGAUM IN SPECIAL
CASE NO.104/2009 AND ACQUIT THE APPELLANT FOR
OFFENCES PUNISHABLE UNDER SECTIONS 323, 324, 332, 354,
AND 504 IPC AND SEC. 3(2)(xi) OF THE SCHEDULED CASTES
2
AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITY)
ACT, 1989.
RESERVED FOR JUDGMENT ON : 13.06.2019
JUDGMENT PRONOUNCED ON : 11.07.2019
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING :
JUDGMENT
This appeal is filed against the judgment of conviction and sentence dated 04.01.2011 passed by the Special (III Additional Sessions) Judge, Belgaum, in S.C.No.104/2009 wherein the accused has been convicted for the offence punishable under Sections 323, 324, 332, 354 and 504 of IPC and Section 3 (2)
(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act', for short). The trial Court has sentenced the accused as stated below:
i) Accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 323 of IPC.3
ii) Accused is sentenced to undergo simple imprisonment for six months for the offence punishable under Section 324 of IPC and to pay a fine of Rs.2,000/- and in default, to undergo simple imprisonment for three months.
iii) Accused is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 332 of IPC and in default, to undergo simple imprisonment for three months.
iv) Accused is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- for the offence punishable under Section 354 of IPC and in default, to undergo simple imprisonment for three months.
v) Accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 504 of IPC and in default, to undergo simple imprisonment for three months.4
vi) Accused is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 3(1)(xi) of the Shecudled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and in default, to undergo simple imprisonment for three months.
2. Brief facts of the case are that the complainant- Sridevi Kochari was working as a Teacher in Government School at Masaraguppi village called Metagud Garden School. She was the only Teacher in the said school and she was teaching for the students from I to IV standard. In all, 26 students were studying in the said school. On 31.03.2009, at about 2.30 p.m., the complainant was teaching the students. At that time, accused came on a motorbike along with a sickle. He came inside the school and sat in front of her in a chair stating that he wants to admit his brother's children to the school. The complainant 5 told him that students will be admitted in the month of June and asked him to come in the said month. The accused caught hold of her hands stating that he was observing her since from 20 days and he has liked her. The complainant tried to get released from his hands but the accused hold tightly. She forcibly got released her hands from the clutches of accused and ran away from school to a nearby house in which CW-4 Rukmavva and narrated the incident took place in the classroom. The accused chased her and came there also on his motorbike. At that time, the said Rukmavva locked the complainant in her house by putting outside latch. The accused who came near the house on a motorbike fell down and then picked up the sickle. Then Rukmavva adviced the accused not to do anything to the complainant as she is like his sister. In spite of that the accused tried to enter the house forcibly. When CW-2 tried to prevent him, the 6 accused threw the sickle caused injury to her hand. In spite of that said accused forcibly came inside and made advances towards the complainant. When the complainant moved aside the accused fell down. The complainant came out from the house and started running in the field. The accused chased her and made her to fell down and he abused her in filthy language and kicked her on her mouth and caused injury to her. At that time, other teachers and some JCB workers working in the nearby fields came there. On seeing them, the accused snatching the chain of the complainant, ran away from the spot. It is further alleged that the complainant belonging to SC and the accused obstructed her while she was discharging the duty. Even though he knew that she belongs to SC he tried to outrage her modesty. He also caused injury to others also who tried to rescue her. Therefore, she filed a complaint before the police. Based on that, a 7 crime came to be registered. The police officer conducted the investigation and after completion of investigation, filed charge sheet.
3. After filing the charge sheet, cognizance of the offences was taken S.C.No.104/2009 was registered by the Sessions Court. The presence of the accused was secured. After hearing both the side, charge came to be filed. Accused pleaded not guilty. Therefore, learned Sessions Judge held trial of the case. On evaluating the entire evidence on record and after hearing both the prosecution and the defence, learned Sessions Judge found the accused guilty of the offences punishable under Sections 323, 324, 332, 354 and 504 of IPC and Section 3(2) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced the accused as stated in earlier paras. The said judgment of 8 conviction and sentence has been challenged in this appeal on the following grounds:
The conviction and sentence are contrary to law, evidence and probabilities of the case.
That the learned Sessions/Special Judge was in error in convicting the appellant on the evidences of prosecution which is highly interested, contradiction, unreliable and artificial.
That approach of the learned Sessions Judge to the facts and circumstances of the case is wholly erroneous and the same has been vitiated his findings.
The evidence of PW-2 discloses the presence of PW-3 at the spot.
The witnesses were interested witnesses. They were the students of complainant. The version of the complainant is not at all believable.
PWs-4 and 5 have not supported the case of the prosecution.
There is correction in the complaint at Ex.P-6.9
The wound certificates are created which is to fix the accused in the alleged crime.
Trial court has blindly believed the evidence adduced by the prosecution.
The complainant has misused her caste states.
On the set of evidence, trail Court has acquitted the accused for the offence punishable under Section 392 of IPC.
Hence, learned counsel for the appellant prayed to set aside the judgment of the trial Court and acquit the accused by allowing the appeal.
4. Learned counsel for the accused submitted that there is no evidence on record to prove the guilt of the accused beyond any reasonable doubt. The offence under Section 354 of IPC is not at all made out. The accused did not know that the complainant is belonging to SC or ST. There is no evidence to prove that the complainant was on duty at the time of 10 incident. Other witnesses were tutored witnesses.
Therefore, the trial court could not have believed the evidence of those witnesses. There was no assault by the accused using the sickle. There was no intention on the part of the accused to commit any of the offence as alleged. Hence, he prayed to allow the appeal.
5. Learned H.C.G.P. supported the judgment of the trial Court and prayed to dismiss the appeal.
6. On the above said pleadings of the parties, the following points would arise for consideration:
1) Whether the prosecution had proved before the trial Court that the accused on 31.03.2009, at about 2.30 p.m., in the classroom of Metgud Garden School obstructed the complainant from discharging her duty as Teacher, abused her in filthy language knowing fully well that she belonging to SC community and 11 manhandled and assaulted the complainant with an intention to outrage her modesty and thereby committed offences punishable under Sections 323, 324, 332, 354 and 504 of IPC and Section 3 (2) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?
2) Whether the appellant/accused proves that the judgment of the trial Court is perverse, capricious and against the law, facts and evidence on record and therefore, liable to be set aside?
3) What order?
7. My finding on the above points as under:
Point No.1 : partly in the affirmative.
Point No.2 : In the negative.
8. The main ground on which the appellant -
accused wants to disbelieve the evidence of prosecution witnesses are on three grounds. Firstly the PWs.1 to 3 are the close relatives, secondly the 12 PWs.1 and 2 are the tutored child witnesses and thirdly the Accused had made allegation against brother of PW.3 that he is selling midday meals food grains to the concerned authorities and therefore he has been falsely implicated. The complainant in this case is PW.8. So far as she is concerned, the only allegation is that, she has filed the false complaint and giving false evidence against the accused.
9. Admittedly, there was no ill-will between the complainant and the accused. It is also not suggested at the instance of PW.3, PW.1 has given false complaint against the accused. Though PWs.1 to 3 are close relatives, their evidence cannot be discarded on that ground alone. There evidence has to be appreciated carefully and cautiously to find whether there is any element of false implication. In addition to that it has to be examined whether their presence at the scene of offence is unnatural or 13 natural or whether they are chance witnesses. When the first incident that took place in the school where the PW.1 was teaching to the students. Presence of PWs.1 and 2, who are also students of the said primary school cannot be doubted or termed as unnatural or chance witness. The next question would be they are tutored or not.
10. PW-1 is aged about 11 years at the time of recording evidence. The capability to give evidence has been examined by the trial Court and found that she was not aware of the value of taking oath. According to the said witness, she was studying in 6th standard along with other witnesses. There is only one room in the school. She has seen the accused. She has stated that the accused came inside and sat on the chair. When the complainant asked him to go away, he hold her hand and then, teacher ran out of the school and the accused followed her. In the 14 cross-examination, she admitted that she has come along with PW-4 and other witnesses. Their Advocate has also come with them. They are sitting in the Court. Except suggestions, nothing elicited in the cross-examination as to whether she had any reason to give false evidence.
11. PW-2 is also a child witness. He is the grandson of Kallappa Patil who is the brother of Rukmavva. Rukmavva was also a cook in the school. When the accused pulled the teacher holding her hand, she did not raise any hue and cry. Rukmavva, her brother and advocate had taken him to police station. Then suggestions are made and they are denied.
12. PW-3 has stated on the date of incident, she was in her hut in the garden land. The complainant/Teacher came running towards her hut 15 and told that the accused is trying to push and pull her. The accused also came chasing the complainant. Though she requested the accused not to do anything to the complainant as she just like his sister, the accused forcibly opened the latch twisted the hands of PW-3 and went inside. In that, she sustained injuries by the sickle which the accused was holding. She has subsequently stated that the complainant got herself rescued and started running outside but the accused chased her and pulled down. He also kicked her. Therefore, she sustained bleeding injury to her mouth. He abused her. On seeing other witnesses, he ran away on the motorcycle with sickle. Thereafter the witnesses were taken to hospital for treatment. Complainant has filed complaint before the police. She has identified the accused as well as motorcycle and sickle which are at MOs. 1 and 2. Except suggestions nothing is elicited in the cross-examination of PW-3 to 16 disbelieve her evidence. It was brought out in the cross-examination that since the accused had made allegation against her brother who was supplying midday meals to the school stating that he is selling this midday meals food grains etc. Hence, this case is filed against the accused. To support the said suggestions, no documents as such are produced. The presence of this witness at her house is also natural.
13. PW-8 is the complainant who has also categorically stated about the incident that happened on that day. She has also produced Ex.P-8, her appointment letter as a school teacher. As on the date of incident, she was on duty. She spoke about the presence of the accused in the classroom holding her hand forcibly. She also got herself released from the accused and ran away towards the house of PW-3. Then further states about the accused coming to the 17 said house on the bike. The accused also fell down from the motorcycle. He tried to come inside the house. PW-3 requested not to do anything. Instead he made attempt to come inside the house. When PW-3 prevented him for pushing, she sustained injuries by sickle. She has further stated that after coming inside the house, the accused made advances towards PW-8 and then she ran away from the place but the accused chased her and pulled her and kicked on her mouth. On seeing other witnesses, the accused ran away by snatching the gold chain. Thereafter, she filed complaint. she also speaks about the conducting investigation by the police, recording the statements of panchas. In the cross-examination it is elicited that she did not know the accused earlier to the incident. She is acquainted with PW-3, the brother of Rukamavva, who had come along with the police and he is the chairman of the school. She did 18 not know about the accused running and falling down there only. Other suggestions are made and they are denied.
Absolutely there is nothing elicited in the cross- examinations of PWs-1 to 3 and 8 to disbelieve the version with regard to the incident that is narrated by them in their evidence and also the incident narrated by the complainant in the complaint. Unless and until a strong motive is made out to show that the complaint had reason to implicate the accused falsely, I find that evidence of this injured witnesses cannot be disbelieved. These evidence of injured witness stands on high degree of pedestal. There are no circumstances to show that the children were tutored in order to implicate the accused falsely.
14. PW-6 is the doctor who has stated about the examination of PWs-3 and 8 who has spoken 19 about the injuries sustained by them. Wound certificate of PW-3 is at Ex.P-4 and wound certificate of PW-8 is at Ex.P-3. He has also opined that the injury mentioned in Ex.P-3 sustained by the complainant can be sustained if somebody kicks by leg. The accused was also examined by the said doctor and found that he has suffered abrasion of 2x1 cm over right eye brow and forehead. There are no reasons to disbelieve the evidence of doctor and the doctor has also no reason to give false evidence. Non- mentioning of the color and age of the wound would not be a ground to disbelieve his version. He admitted that correction of date on wound certificate at Ex.P-5 which pertains to the accused. It is not even suggested that accused was produced and he had sustained any injury etc.
15. PWs-7 and 9 are the Investigating Officers. PW-7 had registered the crime. No reasons for the 20 investigating officer are elicited as to why he has to file a false complaint against the accused. Any ill-will or political rivalry are not at all even suggested. Though the investigation conducted by PW-9 is not supported by Pancha witnesses, there is no evidence to disbelieve the evidence of police officer. The evidence of police officer should be corroborated in all time. His evidence cannot be disbelieved merely because he is a police officer nor disbelieved because he is police officer. His evidence is to be appreciated. There is no injury causing the complainant with dangerous weapon to PW-3. It is only in the process of snatching the sickle from the accused. She is said to have suffered some lacerated wound. Therefore, the only inference that can be drawn is insofar as the voluntary cause by dangerous weapon is concerned, the evidence on record prove the same. It is an voluntary act of the complainant herself in snatching 21 the sickle, there is no evidence to show that the accused tried to hit the complainant with sickle. It is only a defence injury. However, having regard to the evidence on record, accused has been convicted for the offence punishable under Sections 323 and 324 of IPC and these provisions meant for voluntarily causing hurt and voluntarily causing hurt by dangerous weapons or means respectively. Therefore, to that extent the judgment requires modification.
16. Insofar as conviction for the offence punishable under section 3(1) (xi) of the Act is concerned, complainant is a member belonging to scheduled caste community, touching her hand and assaulting her in a public place would certainly amount to outraging the modesty of that woman. It is an offence under special enactment. Therefore, that overwrites other acts. Therefore, the accused cannot be given benefit under section 72 of IPC. Therefore, 22 there cannot have been separate punishment for the offence under Section 354 of IPC. The offence merges with the offence punishable under Section 3(1)(xi) of the Act. Therefore, to that extent, sentence of imprisonment imposed by the trial Court has to be modified.
17. The accused has also been convicted for offence punishable under Section 332 of IPC. The complainant was on duty is proved by her evidence as the appointment letter shows that she is a Teacher. Students have also stated that she was teaching them on the date of incident. Assaulting a public servant in a school would certainly amount to preventing a public servant from discharging duties. Description of Sections 332 and 323 is similar in nature. The only difference is if the victim is a member of SC or ST then offence falls under Section 3(1)(xi) of the Act. As per the old Section, the maximum punishment 23 provided for the offence under Section 354 of IPC is two years. Therefore, the trial Court should have convicted the accused for the offence under Section 3(1)(xi) of the Act rather than 354 of IPC.
18. The offence under Section 504 of IPC is proved because he has used abusive words to the complainant and witnesses. Therefore, the words used amounts to causing intentional insult. Therefore, the act committed by the accused falls under Section 504 of IPC. Therefore, the conviction under Section 504 of IPC is confirmed.
19. For the aforesaid reasons, the point No.1 answered partly in the affirmative and point No.2 in the negative and I proceed to pass the following:
ORDER
1) The appeal filed by the accused is partly allowed.24
2) The conviction of the appellant for the offence punishable under Section 324 of IPC is set aside and accused is acquitted of the offence punishable under Section 324 of IPC.
3) The finding of the trial Court that the accused is guilty of the offence punishable under sections 323, 332 & 504 of IPC and offence punishable under Section 3(1)(xi) of the Act stands confirmed.
4) The sentence of imprisonment and fine imposed by the trial Court for the aforesaid offences stands confirmed.
5) Imprisonment imposed by the accused for the offence under Section 354 of IPC stands merged.
6) All the sentence of imprisonment shall run concurrently.
7) Accused is entitled for benefit of set off as provided under Section 428 of Cr.P.C., the period spent as under trial prisoner as 25 against the substantial sentence of imprisonment.
8) The accused shall surrender before the trial Court within one week from the date of pronouncement of this judgment.
9) The bail bonds stand cancelled.
10) Send a copy of this judgment along with records to the trial Court and the trial Court shall pass further necessary orders.
Sd/-
JUDGE Naa