IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL NO.7/2017 BETWEEN:
CHOWDEGOWDA Y.S.
S/O. GENDE KIVUDANA SIDDEGOWDA AGED ABOUT 35 YEARS R/O. YALADAHALLI VILLAGE C.A. KERE HOBLI MADDUR TALUK MANDYA-571 401. … APPELLANT (BY KUM. RAKSHA KEERTHAN K., ADVOCATE FOR SRI. KEMPARAJU, ADVOCATE) AND:
STATE OF KARNATAKA BY K.M. DODDI POLICE REP. BY ITS PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU-560 001. ... RESPONDENT (BY SRI. K. NAGESHWARAPPA, H.C.G.P.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 30.11.2016 AND SENTENCE DATED 01.12.2016 PASSED BY THE ADDL. DIST. AND SPL. JUDGE, MANDYA IN SPL.C.NO.4/2015 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 323 AND 506 OF INDIAN PENAL CODE AND SECTION 3(1)(X) OF SC/ST (POA) ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant challenging the judgment of conviction passed by I Additional District and Special Judge at Mandya in Special Case No.4 of 2015 dated 30.11.2016 for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the ‘Act’ for short).
Brief facts of the case are as follows:
2. It is the case of the prosecution that the complainant, who has been examined as P.W.1 in his complaint in terms of Ex.P1 has lodged the complaint stating that accused was having illicit relationship with his wife and when he came to house after finishing his coolie work at around 6.30 p.m., the accused was inside the house. On seeing the complainant, the accused tried to escape from the house, he held him and enquired him and at that time, the accused, abused him by taking his caste name and also scolded that he is having illicit relationship with his wife. It is also stated in the complaint that the incident is witnessed by P.Ws.2 and 4 and when they came to pacify the galatta, the accused, abused P.Ws.2 and 4 also by taking their caste name. It is also alleged in the complaint that, he gave the mobile conversation that has taken place between his wife and accused to the panchayathdars and arranged for panchayath. The accused did not come to panchayath and hence, the complaint was given against the accused. Based on the complaint, the police have registered the case against the accused for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act.
3. The police, after investigation have filed the charge sheet against the accused. The accused was secured and charges were framed and he did not plead guilty and claims for trial. Hence, the prosecution relied upon the evidence of P.Ws.1 to 9 and also got marked the documents Exs.P1 to P4(a). The statement of accused was also recorded under Section 313 of the Code of Criminal Procedure and thereafter, the Court below heard the arguments of prosecutor and also the defence counsel and considering the material on record, convicted the accused for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act.
4. The main grounds urged by the appellant/ accused in the memorandum of appeal is that the learned trial Judge while passing the impugned judgment of conviction has not considered the material contradictions in the evidence of P.Ws.1, 2 and 4, who are the main witnesses and their evidence does not inspire the confidence of the Court that the alleged incident has taken place and the accused abused P.Ws.1, 2 and 4 by taking their caste name. It is also her contention that the Court below also failed to take note of the fact that there was no any medical evidence and P.W.1 has not sustained any injury and the Court below failed to take note of the fact that P.Ws.2 and 4 are not the witnesses to the incident and those witnesses are set up by the prosecution.
5. It is her further contention that P.Ws.6 and 7, who are the spot mahazar witnesses have not supported the case of the prosecution. The evidence of P.Ws.3 and 5 also does not inspire the confidence of the Court that the incident has occurred and panchayath was called and the accused did not appear to the panchayath. It is further contended that the accused has insisted the complainant to pay the money which he had taken and he did not repay the money and false complaint was given. The evidence of P.W.9 is very clear that none of the witnesses have spoken with the Investigating Officer with regard to the evidence which has been adduced before the Court below.
6. The learned counsel appearing for the appellant in her argument would contend that there is a delay of 2 days in filing the complaint and the wife of the complainant was also not present in the house at the time of the incident. It is evident from the records that no injury is sustained by P.W.1. Though P.W.1 claims that he took the mobile and gave the same to Panchayathdars to hear the conversation between his wife and accused, how he got the said conversation is not been explained by P.W.1, when the mobile was also not seized. None of the witnesses have spoken with regard to the very presence of the accused at the spot, except the interested witnesses P.Ws.2 and 4 and hence, the Court below has committed an error in not appreciating the material available on record.
7. Per contra, learned High Court Government Pleader appearing for the State in his argument would contend that the evidence of P.Ws.1, 2 and 4 inspires the confidence of the Court that an incident has taken place. The other witnesses are P.Ws.3 and 5, who have arranged for the panchayath have also spoken with regard to the fact that a message was sent to the accused to come to panchayath through P.Ws.2 and 4 and the accused did not attend the panchayath and all these aspects substantiates the case of the prosecution and the prosecution has proved that an incident has taken place in the presence of the general public and the accused abused P.Ws.1, 2 and 4 by taking their caste name in the presence of the general public. Therefore, it attracts the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act. Hence, there are no grounds to set aside the judgment of conviction and prayed the Court to dismiss the appeal.
8. Having heard the arguments of learned counsel appearing for the appellant/accused and also learned High Court Government Pleader appearing for the respondent/State, the points that arise for consideration of this Court are:
1. Whether the Court below has committed an error in convicting the accused for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act and it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
9. On perusal of the material on record, it is the case of the prosecution that on 15.09.2014 at about 6.30 p.m., when the complainant, P.W.1 came to his house, he found accused inside his house and when the accused tried to escape from the spot, he questioned him and at that time, the accused abused him taking his caste name, assaulted him and also caused life threat to him stating that he is having illicit relationship with his wife and if he questions the same, he would take away his life.
10. The prosecution, in order to prove its case, examined the witnesses P.Ws.1 to 9 and got marked the documents Exs.P1 to Ex.P4(a). P.W.1 is the complainant. P.Ws.2 and 4 are the eye witnesses to the incident. P.Ws.3 and 5 are the Panchayathdars. P.Ws.6 and 7 are the mahazar witnesses.
P.W.8 is the Police Inspector, who registered the case and P.W.9 is the Assistant Commissioner of Police, who conducted further investigation of the case.
11. Now let this Court consider the evidence available on record. Before considering the evidence of P.W.1, it is appropriate to mention the contents of the complaint which is marked as Ex.P1. In the complaint, it is mentioned that on 15.09.2014, when he returned to his house, he found the accused inside the house and when the accused tried to escape from the house, he questioned him and at that time, the accused abused him in a filthy language taking his caste name and also caused life threat. The said incident is witnessed by P.Ws.2 and 4 and when they came to pacify the galatta, the accused abused both of them also taking their caste name. The said incident was brought to the notice of the villagers and he also took the mobile conversation between his wife and accused which was recorded in the mobile and made the Panchayathdars to hear the same and panchayath was arranged. However, the accused did not attend the panchayath.
12. In the oral evidence of P.W.1, he reiterates the contents of the complaint which is marked as Ex.P1 regarding the incident of abuse, assault made by the accused and also life threat caused by the accused. He was subjected to cross- examination.
In the cross-examination, he admits that there are other houses surrounding his house which belongs to his community but, he did not notice whether neighborers came near his house and also admits that when he came to his house in the public road, he did not see any person in the said road. It is also his evidence that he used to go to coolie work and at that time, his wife used to stay in the house. But on that day when the incident took place, his wife was not there in the house and the house was also not locked. He admits that P.Ws.2 and 4 belong to his community. It is further elicited in the cross-examination that, when he saw the accused, he ran away from the house and while he tried to catch him, he assaulted him and incident has taken place at 6.45 p.m. but, he did not seek the help of the general public. It is also elicited that P.Ws.2 and 4 were there at the distance of 10 to 15 feet and claims that the ladies of the neighboring house were standing and watching the incident. But except P.Ws.2 and 4, others did not come to the spot. He also admits that P.Ws.2 and 4 themselves told him to arrange for panchayath. He also states that panchayath was called twice and both the times, the accused did not attend the panchayath. He further admits that before lodging the complaint, he went to the police and the police told him to settle the matter in the panchayath itself and panchayath has not taken place and hence, he lodged the complaint. He states that he got prepared the complaint in a shop at K.M. Doddi but, he cannot tell the name of the scribe of the complaint. He also admits that when the mahazar was conducted, except him, no other person has signed the mahazar and also does not know the contents of the mahazar. He admits that from past two years, his wife and son are not living along with him and he does not know where they are staying.
13. The other witness is P.W.2. He claims that on 15.09.2014, at about 6.00 p.m., he was sitting on the bridge and P.W.4 was also present at that time. He saw the galatta between the accused and the complainant. The accused assaulted the complainant and both of them pacified the galatta and at that time, the accused abused both of them by taking their caste name. P.W.2 states that, P.W.1 told him that, the accused abused him stating that he is having illicit relationship with his wife.
In the cross-examination, P.W.2 admits that he belongs to the community of P.W.1. The place in which he and P.W.4 were sitting is at the distance of 15 meters from the house of P.W.1. The door of the P.W.1 was visible from the said place. He also admits that there are other houses near the house of P.W.1.
P.W.2 states that P.W.1 came to his house at around 6.00 p.m.
and he was sitting from five minutes prior to 6’O clock in the said place and he does not know whether anybody was there in the house of P.W.1. He admits that accused was coming near the house of complainant to call the coolies and further admits that the wife of P.W.1, Smt. Girijamma is the second wife of P.W.1. He does not know where the wife of the complainant is staying and his wife is not staying along with P.W.1. But he volunteers to state that, after the panchayath, she left the house.
14. The other witness is P.W.4. In his evidence, he states that two years ago, at around 6.00 p.m., he himself and P.W.2 were standing near the bridge and the house of P.W.1 situates at the distance of 30 ft. When P.W.1 went to his house, within five minutes, he heard the galatta sound and the accused was abusing him stating that, he is having illicit relationship with his wife, assaulted him and abused him taking his caste name and also caused life threat.
He was subjected to cross-examination. In the cross- examination, he admits that his house is situated at the distance of 50 meters from the house of P.W.1 and the house of P.W.1 situates at the distance of 30 meters where they were sitting. Except the said road, there is no other road to go to the house of P.W.1. It is his evidence that he was at the spot half an hour prior to the visit of P.W.1 to his house. During that time, he did not see the accused or any other person trespassing near the house of P.W.1. P.W.1 also did not speak to him. P.W.1 has also not sustained any injury in the incident. He also admits, there are 50 houses surrounding the house of P.W.1. When the police visited the spot, at that time, no other public were there. When he gave the statement before the police, the police have not recorded the statement of any of the witnesses.
15. The other witnesses are P.Ws.3 and 5. P.W.3 in his evidence claims that P.W.1 came and requested him to arrange panchayath and hence, arranged the panchayath and sent the message to accused through C.W.2 and P.W.2 to come to the panchayath and both of them came and told that the accused did not agree to attend the panchayath.
In the cross-examination, he admits that panchayath was held between 9.00 a.m. to 1.00 p.m.
16. P.W.5 in his evidence states that, P.W.1 came and told that accused trespassed his house and dragged his wife in his house and tried to commit rape on her and requested to him to arrange for panchayath and hence, panchayath was arranged and accused did not attend the panchayath.
In the cross examination, he admits that P.W.1 himself requested to arrange for the panchayath and except P.W.1, none attended the panchayath. He also admits that P.W.1 himself told him that accused dragged his wife and tried to commit rape on her. He further admits that his house is situated at the distance of 250 ft. from the house of P.W.1.
17. P.Ws.6 and 7 are the mahazar witnesses and they have not supported the case of the prosecution.
18. P.W.8 is the Police Inspector, who registered the case and handed over the papers to P.W.9 for further investigation.
19. P.W.9 is the Assistant Commissioner of Police, who conducted further investigation and also states that he went to the spot and held the spot mahazar in terms of Ex.P2. He also recorded the statement of P.Ws.2 and 4 and also recorded the statement of P.W.1 and collected the caste certificate in terms of Ex.P3.
In the cross examination, it is elicited that, he did not record the statement of wife and son of P.W.1 but, he claims that he has recorded the further statement of P.W.1. He also admits that, P.W.1, in his statement has not stated that accused held his cloth and dragged him on the stone and stamped him with his footwear and he has not taken any photos. P.W.9 also admits that while recording the statement of P.W.2, he has not stated that he was sitting on the bridge and so also, P.W.4 has not stated before him that he himself and P.W.2 were standing near the bridge. P.W.9 further admits that P.W.5 also not stated before him that P.W.1 came and told that accused entered his house, dragged his wife and made an attempt to commit rape on her.
20. Having considered both oral and documentary evidence available on record with regard to the very incident, the prosecution failed to prove whether the incident has occurred or not. No doubt, in the complaint at Ex.P1, a specific date and time of the incident is mentioned and it is also the evidence of P.Ws.2 and 4 that they have witnessed the incident, but the answers elicited from the mouth of P.W.1 in the cross- examination is clear that there are other houses surrounding his house, but he did not notice whether any other persons have witnessed the incident. He also categorically admits that when he came to his house at 6.30 p.m., none was there in the public road and the road in which he came is the only road to go to the house of P.W.1. It is also pertinent to note that though the P.W.4 also claims that he was at the spot ½ an hour prior to the incident, he did not notice the accused going near the house of P.W.1. It is also pertinent to note that in the chief evidence of P.W.1, he states that his wife was not there in the house when he went to the house and door was also not locked. He also claims that the accused was inside the house and incident has taken place. It is the evidence of P.Ws.2 and 4 that they have witnessed the incident. The very presence of P.Ws.2 and 4 is also doubtful. P.W.2 claims that he was sitting on the bridge at around 6.30 p.m. and he came to the spot five minutes prior to the incident, which he witnessed and also states that he was along with P.W.4. P.W.4 in his evidence states that he was along with P.W.2, ½ an hour prior to the incident and both of them were standing near the bridge. P.W.2 in the cross- examination admits that though they are not relatives of P.W.1, they belong to same community. It is pertinent to note that P.W.1 categorically admits that he did not seek the help of any public at the time of the incident and the very answer elicited from the mouth of P.W.1 is clear that none were present at the spot. The other admission of P.W.1 is that he did not find any public in the said road also corroborates that P.Ws.2 and 4 were also not there at the spot. It is also important to note that P.W.1 claims that the ladies of the neighboring house were standing and watching the incident. The same also does not inspire the confidence of the Court that P.Ws.2 and 4 were present at the spot. If really the other neighboring house occupants have witnessed the incident, the police ought to have recorded the statement of other witnesses and none of the witnesses have been examined before the Court except, P.Ws.2 and 4 regarding the incident. Hence, it is clear that P.Ws.2 and 4 are the interested witnesses, who are set up at the instance of P.W.1. The contents of the complaint, Ex.P1 is that the complainant took the mobile conversation of his wife and accused and made the Panchayathdars to hear the same. However, no such mobile was seized and how he got the conversation between the accused and his wife is also not explained. It is pertinent to note that the very evidence of P.W.1 is that at the time of the incident, his wife was not there in the house and how he has got the conversation between his wife and the accused is also not explained. If his wife and accused were present in the house at that time, then there would have been force in the contention of the prosecution that accused was in the house of the complainant and the same is not the case of the prosecution. It is also emerged in the evidence that the relationship between the complainant and his wife was not in good terms and it is emerged in the evidence of P.W.1 and also other witnesses that his wife and son are not staying along with him. It is also pertinent to note that though P.W.4 claims that he witnessed the incident of assault made to P.W.1 by the accused, he categorically states that in the incident, P.W.1 has not sustained any injury. There is no medical evidence before the Court below that he was subjected to assault. It is also important to note that in the cross-examination of P.W.9, who conducted the further investigation of the case, he categorically states that P.W.1 did not make any statement before him that accused held his cloth and dragged him to the stone, assaulted him and stamped with his footwear and hence, it is clear that the same is nothing but an improvement. P.W.9 also categorically states that P.W.2 did not make any statement before him that he was sitting on the bridge near the house of P.W.1 and so also, P.W.4 not made any statement that himself and P.W.2 were standing near the bridge, which is also an improvement. The evidence of P.W.5 that P.W.1 came and told that accused made an attempt to drag his wife and attempted to commit rape on her and that is not the case of the complainant in his complaint and P.W.5 also states that P.W.1 himself came and told the said fact to him.
21. Hence, I am of the view that the Court below has failed to consider all these material contradictions in the evidence of P.Ws.1, 2 and 4. In order to convict a person for the offence, there must be cogent evidence before the Court and the same should inspire the confidence of the Court to arrive at a conclusion that the person accused of the offence has committed the same. Having considered both oral and documentary evidence available on record, it is evident that no such circumstances are made out by the prosecution that an incident has taken place. The evidence of P.Ws.1, 2 and 4 is contrary to each other and none of the neighboring witnesses have been examined before the Court. The evidence of the prosecution clearly shows that P.Ws.2 and 4 are the interested witnesses to the incident, in view of the answers elicited from the mouth of P.Ws.1, 2, 4 and 9. The Court below fails to take note of the material contradictions elicited in the cross-examination and there was no injury sustained by P.W.1 though he deposed that he was subjected to assault and it is also not the case of P.W.1 that he has sustained injury on account of assault made by the accused. The Court below also failed to appreciate both oral and documentary evidence, particularly the contradictions in the evidence of P.Ws.1, 2 and 4 and so also the improvement in the evidence of P.W.5 and also the evidence of the Investigating Officer, who has been examined as P.W.9, whose evidence is against the evidence of prosecution witnesses i.e., P.Ws.1, 2 and 4, who have deposed before the Court as against their own statements. Therefore, the Court below has committed an error in convicting the accused for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act. Hence, the impugned judgment of conviction is not sustainable in the eye of law.
22. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed. The impugned judgment of conviction passed by I Additional District and Special Judge at Mandya in Special Case No.4 of 2015 dated 30.11.2016 for the offence punishable under Sections 323 and 506 of Indian Penal Code and under Section 3(1)(x) of the Act is set aside.
(ii) If the appellant has deposited any fine amount before the Court below, the same shall be refunded to the appellant forthwith.
Sd/- JUDGE ST