IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL No.694 OF 2019 BETWEEN:
Sri Ravichandra S/o Kempanna, Aged about 52 years R/at Adarsha Nagara Malur Town, Malur Kolar District-563 130. …Appellant (By Sri Srinatha B.V., Advocate for Sri M.R.Nanjunda Gowda, Advocate) AND:
1. State of Karnataka by Malur Police Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
2. Sri Srinivas S., S/o Muniyappa, Aged about 35 yeas Yarappashettyhalli Malur Taluk, Kolar District (As per Court order dated 21.06.2019) (By Sri M. Divakar Maddur, HCGP for R1; R2 is Served and unrepresented) …Respondents This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment of conviction and order of sentence dated 02.04.2019 passed by the II Additional Sessions Judge, Kolar in Spl.C.C.No.24/2018 convicting the appellant/accused for the offences punishable under Sections 323, 504 and 506 of Indian Penal Code and Section 3(1)(r) (s)of SC/ST (POA) Act.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:-
JUDGMENT This appeal has been preferred by the appellant- accused challenging the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Kolar in Special C.C.No.24/2018 dated 2.4.2019.
2. I have heard the learned counsel appearing for the appellant-accused and the learned High Court Government Pleader appearing for the respondent No.1-State. Though notice is served to respondent No.2, he has remained absent.
3. Brief facts of the case are that due to the earlier vengeance between the complainant and one Chandrappa, accused being the President of Human Rights Committee had held panchayath and in this regard he collected phone number of the wife of complainant and used to make phone calls to the wife of the complainant Smt.Deepika. As such, on 11.8.2017 at about 11.30 a.m. the complainant had been to the office of the Human Rights Committee and enquired the appellant-accused and there was verbal exchange of words between them. At that time, appellant- accused held the collar of the complainant, pushed him and caused hurt to him. He also said to have abused him in filthy language with an intention to provoke the complainant to break public peace and thereby committed criminal intimidation threatening to kill the complainant. He also said to have used abusive language by taking the name of his caste. On the basis of the said complaint, a case has been registered in Crime No.284/2017. After investigation, charge sheet has been filed for the offences punishable under Sections 323, 504 and 506 of IPC and Section 3(1)(r)(s) of SC/ST (POA) Act. The Special Court took cognizance of the offence and secured the presence of the accused. After hearing the learned counsel for the parties, charge was framed. Accused pleaded not guilty and claimed to be tried. As such, case was posted for trial. The prosecution, in support of its case, has examined 7 witnesses and got marked 6 documents. During the course of cross-examination, the defence got marked Ex.D1. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C. He denied the incriminating material and not led any evidence. After hearing the learned counsel appearing for the parties, the Court below holding that there is a prima facie material as against the accused, by impugned order convicted him for the above said offences. Assailing the legality and correctness of the impugned order, the appellant-accused is before this Court.
4. The main grounds urged by the learned counsel for the appellant-accused is that the conviction order is not sustainable in law. P.W.1 being the complainant, in his evidence has categorically deposed that the conversation of the accused and wife of the complainant has been recorded and the said recording has been given to the police. But the same has not been produced before the Court. It is his submission that in view of the panchayath held earlier, there were disputes between the parties and only with an intention to take vengeance a false complaint has been filed. It is his further submission that the alleged incident has not taken place in a public place and nobody was present on the date of the alleged incident. As such, Section 3 of the SC/ST (POA) Act is not applicable to the case on hand. It is his further submission that though P.Ws.2 and 6 are said to be the eyewitnesses to the incident, P.W.2 has not supported the case of prosecution and P.W.6 is an interested witness and friend of the complainant and even he has not gone to the rescue of the complainant at the time of galata. It is his further submission that though there is no ample material to connect the accused to the alleged crime, the trial Court by overlooking all the evidence, has erroneously come to a wrong conclusion in convicting the accused. On these grounds, he prayed to allow the appeal and to set aside the impugned order and to acquit the appellant-accused.
5. Per-contra, learned High Court Government Pleader appearing for respondent No.1 has vehemently argued and submitted that complainant himself has categorically deposed that accused has taken the name of his caste and abused him in filthy language and also assaulted him. The said evidence is reiterated by the evidence of P.W.6, who is the eyewitnesses and he has supported the case of prosecution. It is his further submission that the material produced has been clearly considered by the Court below and has come to a right conclusion in convicting the accused. No good grounds are made out to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeal.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. In order to establish the case of prosecution, it has examined 7 witnesses.
P.W.1 is the complainant. In his evidence, he has deposed that himself and his wife belong to SC community and accused belong to Kuruba community. There was some galata between his wife and other persons and at that time, his wife had been to accused to hold panchayath since he was the President of Human Rights Commission. He further deposed that accused is working as a President of Human Rights Awareness Committee and at that time, he had collected the phone number of his wife. Around 5-6 times per day he used to call her over phone and after coming to know about the said fact, he had switched on the recording in the phone. When his wife was not there, accused verified the said recording and got to know about the details of the said conversation. In this regard, on 11.8.2017 at 11.30 a.m. he had been to Malur to the office of the accused and told him what he is doing is not correct, for which, accused replied that it is his wish and that the complainant’s wife is on his side and he can do whatever he want to do. Accused also abused him by taking the name of caste and assaulted him and kicked by his legs. The said galata has been seen by one Ramachandra and Gurrappa. Accordingly, he filed the complaint as per Ex.P1. He has also further deposed that he has also signed the spot mahazar as per Ex.P2.
During the course of cross-examination, he has admitted that there was galata between his wife and one Chandrappa and as such, matter has been referred to panchayath. He has also admitted that himself and his wife and the said Chandrappa were called to the police station wherein accused was also present and an undertaking was obtained in the police station to the effect that they will not trouble each other. He has also further deposed that he has given the mobile record chip to the police. That on 11.8.2017 he alone had been to the office of the accused and that accused assaulted him with hands and he does not remember as to how many assaults were made by the accused and that he did not go to hospital. He has also deposed that the said galata has taken place for nearly half an hour. Other suggestions have been denied.
P.W.2 is another eyewitness to the alleged incident and also spot mahazar pancha to Ex.P2. He has not supported the case of prosecution and was treated hostile.
P.W.3 is the wife of the complainant. she is a hearsay witness and she has not witnessed anything. She has only stated that her husband P.W.1 came and informed about the galata. Her evidence does not support the case of prosecution.
P.W.4 is the spot mahazar pancha to Ex.P2. He has also not supported the case of prosecution and has been treated hostile.
P.W.5 is the Head Constable who received the complaint as per Ex.P1 and issued the FIR as per Ex.P5.
P.W.6 is the eyewitness to the alleged incident. In his evidence he has deposed that on 11.8.2017 at about 11.30 a.m. he had been to Malur for some work. He saw the complainant and accused quarrelling. The accused holding the collar of the complainant abused him by taking the name of the caste and threatened with life. He has further deposed that himself and P.W.2 rescued the complainant. During the course of cross-examination nothing has been elicited so as to discard his evidence.
P.W.7 is the Dy.SP who investigated the case and filed the charge sheet against the accused.
8. On going through the evidence of P.Ws.1 and 6 though P.W.1, in his evidence, has deposed that he has recorded the conversation between the accused and his wife and that he has also given the recorded chip to the police, for the reasons best known to the Investigating Officer, the said chip has not been produced before the Court. Be that as it may. In the evidence of P.W.1 he has deposed that the alleged incident has been seen by one P.W.6 Ramachandra and P.W.2 Gurrappa. P.W.2 has not supported the case of prosecution. In his evidence, he has stated that he was not present at the place of incident and he does not know anything about the incident.
9. If the evidence of P.W.1 is considered, he has deposed that the said galata had taken place for about half an hour, but in his evidence, he has not deposed that the said P.W.6 Ramachandra and P.W.2 Gurrappa had come to pacify the quarrel. But, P.W.6 in his evidence has categorically deposed that himself and P.W.2 went and pacified the said quarrel. If really, P.W.6 had come and pacified the said galata, definitely P.W.1 would have stated the said fact in his evidence. Even though the evidence of P.W.1 indicates that the accused had taken the name of his caste and abused, in order to attract the provisions of Section 3(1)(r)(s) of the SC/ST (POA) Act, it should be abusing any member of the scheduled caste or scheduled tribe by caste name in any place within public view. Though in his evidence he has contended that so many persons were observing the said galata, none of the independent witnesses have been examined before the Court. Even in the cross-examination of P.W.1 he has deposed that on the date of incident he had alone been to the office of the accused. When he has admitted in the cross-examination that there was galata between his wife and other person and in that context they have been called to the police station by accused and that they have given an undertaking, the animosity exists between the accused and the complainant. When with the said animosity the alleged incident has taken place for about half an hour and the accused has assaulted the complainant with hands and kicked him, the complainant has not gone to the hospital. If really, he had been assaulted, some contusions or other injuries would have been caused to the complainant. In the absence of all these materials, the evidence of P.Ws.1 and 6 does not repose confidence to hold that the alleged incident has taken place as contended in the complaint.
10. The complainant, in his evidence, has deposed that accused abused by taking the name of caste in filthy language. But, in the evidence of P.W.6 nowhere he has stated as to what are the words uttered by the accused and it is only stated that he has threatened with the life of the complainant and Gurappa also came to pacify the quarrel, but he has not supported the case of prosecution. As such, many doubts arise in the case of prosecution. It is settled proposition of law that, if in the case of the prosecution any doubt arises, the benefit of doubt should go to the accused.
11. I have carefully and cautiously gone through the judgment of the trial Court. Though the trial Court has observed that no documents have been produced that the said phone number and the SIM card belong to the wife of the complainant and the recording chip has not been produced before the Court and it is also observed that there was ill-will between the complainant and the accused since the accused settled the issues between the wife of the complainant and one Chandrappa, it has erroneously come to the wrong conclusion in convicting the accused though there is no sufficient and cogent evidence available to bring home the guilt of the accused. Taking into consideration the above facts and circumstances of the case, the appellant-accused has made out a case to interfere with the judgment of the trial Court.
12. Hence, appeal is allowed. Judgment passed by the II Additional Sessions Judge, Kolar in Spl.C.C. No.24/2018 dated 2.4.2019 is set aside. Accused is acquitted of all the charges leveled against him. The bail bonds and surety bonds stand cancelled.
I.A.No.2/2019 does not survive for consideration.
Hence, disposed of.
Sd/- JUDGE bkp