IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1230 of 2016 BETWEEN:
State of Karnataka By Bethamangala Police Station, Kolar District, Reptd. by State Public Prosecutor, High Court Building, Bengaluru – 560 001 ...Appellant (By Sri. Divakar Maddur, HCGP) AND:
Bhaskar Naidu S/o Nagaraja Naidu, Aged about 34 years, A.Mothakapalli Village, Kyasamballi Hobli, Bangarpet Taluk, Kolara District - 563114 ...Respondent (By Sri. Nikhil.S.K, Advocate for Sri. Somashekhar Kashimath, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) Cr.P.C praying to set aside the judgment and order dated 5.3.2016 passed by the II Addl.S.J., Kolar in Spl.C.C.No.29/2014 – Acquitting the respondent/accused for the offence punishable Under Sections 323, 504, 506 of IPC and U/S 3(1)(x) of SC/ST (Power of Attorney) Act.
This Appeal coming on for Admission, this day, the Court delivered the following:
JUDGMENT The State has preferred this appeal challenging the judgment of acquittal dated 05.03.2016, passed by the II Additional Sessions Judge, Kolar (hereinafter for brevity referred to as “trial Court”), in Spl.C.C.No.29/2014, wherein it has acquitted the present respondent for the offences punishable under Sections 323, 504, 506 of the Indian Penal Code, 1860 and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for brevity referred to as ‘IPC’ and “SC & ST Act’, respectively).
2. The summary of the case of the prosecution is that on 26.03.2014 at about 7.00 a.m. at A.Mothakapalli Village, when PW.1-Smt. Radhamma was brooming in front of her house, the accused went there on his two wheeler motor cycle and abused her in filthy language. When her son PW.2 Anil Kumar questioned the act of the accused, he was assaulted by the accused on his face apart form he also being abused in filthy language and put life threat to him.
3. Based on the complaint filed by PW.1, the complainant-Police registered a crime, submitted FIR and after completing investigation, filed charge sheet against the accused for the offences punishable under Sections 323, 504, 506 of IPC and under Section 3(1)(x) of SC and ST Act.
4. Since the accused has not pleaded guilty, in order to prove their guilt, the prosecution examined 12 witnesses from PWs.1 to 12 and got marked documents from Exs.P-1 to 10. Neither any witness was examined nor any document was marked as exhibit from the side of accused.
5. After hearing both side, the trial Court by its impugned judgment, acquitted the accused for the alleged offences. It is against the said judgment, the State has preferred this appeal.
6. Though this matter was listed for Admission, with the consent of learned counsel from both side, the matter is taken up for final disposal.
7. Heard arguments from both side, perused Memorandum of Appeal and the impugned judgment.
8. Learned counsel from both side have placed the certified copies of the trial Court papers including deposition, exhibits, charge etc. for perusal and return by this Court. Perused the materials placed before this Court.
9. According to the prosecution, PW.1 who is the complainant and one of the victims in this case, in her examination-in-chief, has stated that on 20.03.2014, in the morning at about 7.00 a.m., while she was brooming near her house, the accused went there and drew her attention calling at her as ‘hey’. Thereafter, in Telugu language he told her that how long she could escape from him. At that time, her son questioned the accused, for which the accused slapped him on his face with his hand. In that connection, she lodged a complaint with the Police as per Ex.P-1. She has stated that she also signed mahazar in the Police Station, which is at Ex.P-2. In her cross-examination, she admitted a suggestion as true that she does not know reading, writing and speaking of Kannada language. She has stated that she does not know what is written in Exs.P-1 and 2 and also as to who wrote them. The denial suggestions made to her were not admitted as true.
10. PW.2, in his examination-in-chief has stated that PW.1, who is his mother was while brooming in front of their house, the accused came there on a vehicle and abusing her in filthy language, stated that he knows how to murder her husband and to make use of her sexually. PW.2 further stated that he came out and questioned the accused, for which the accused apart from scolding him threatened him of dire consequences. The witness further stated that when he was carrying milk, the accused slapped him on his cheek. He has stated that he belongs to Bhovi caste. In his cross- examination PW.2 has stated that when the accused was said to have scolding his mother, he was inside the house. The denial suggestions made to him were not admitted as true by him.
11. PWs.3 to 8 were projected as eye witnesses to the alleged incident, but none of them have supported the prosecution even to a smallest extent. All of them uniformly stated that they does not know anything about the alleged incident and they have not seen the alleged incident.
12. PWs.9 and 10, though were projected as panch witnesses for the scene of offence panchanama at Ex.P-2, they have also turned hostile to the prosecution stating that at the insistence of police they have subscribed their signature to the said document in the Police Station.
13. PW.11, the Assistant Sub-Inspector, stated about he receiving the complaint as per Ex.P-1 on 30.03.2013 and submitting FIR to the Court, which he has identified at Ex.P-10. In his cross-examination, he has admitted that there is delay in registering the complaint and that the said delay has not been explained in the FIR.
14. PW.12, the then Dy.S.P. of the region has stated that about he conducting investigation in this matter, during which he drawing mahazar/ scene of offence panchanama as per Ex.P-2 and recording the statement of PWs.3 to 8 and collecting the caste certificate as per Ex.P-7 and filing charge sheet against the accused. The denial suggestions made to him have not been admitted as true by him.
15. Learned High Court Government Pleader in his arguments submitted that though the eye witnesses to the incident from PWs.3 to 8 and panchas at PWs.9 and 10 – panchas have not supported the case of prosecution, the evidence of PWs.1 and 2 being the complainant and victim are trust worthy and reliable, as such, the prosecution has proved the guilt of the accused.
16. Learned counsel for the respondent in his arguments submitted that admittedly all the material witnesses including quite a good number of alleged eye witnesses have turned hostile to the case of prosecution. The evidence of PWs.1 and 2 are with inconsistencies and are not reliable, as such, the trial Court has rightly pronounced the judgment of acquittal.
17. Secondly, PW.1 has stated that the accused drew her attention by yelling at her as ‘hey’ and then said that he would see that how long she would escape from him. On the contrary, PW.2 the son of PW.1- complainant, has stated that the accused abused his mother in filthy language and stated that he knows about killing her husband and making use of sexually. Even according to PW.2, when the accused is said to have either abused or spoken to his mother, he was inside the house, as such, the main person who could speak about the alleged abusing or threatening or intimidating would be PW.1.
As already observed above, she has nowhere in her evidence stated that the accused stated to her that he would kill her husband or that he knows how to use her sexually. Therefore, what PW.1 has not stated, PW.2 has stated that as though the same was stated by the accused. Therefore, there is no consonance in the evidence of PWs.1 and 2 with respect to the alleged incident of abusing PW.1 by the accused.
18. Thirdly, the statement of alleged abusing stated to have been made by the accused totally differs from what is narrated by PW.1 and PW.2. They do not tally with each other. PW.2 has stated that the accused abused him with a specific statement in Telugu language, which has not at all been whispered by PW.1 in her evidence. Had the incident really taken place, both the PWs.1 and 2 were present, then the evidence of both these witnesses with respect to alleged incident should have been in consonance with each other, but the picturisation of the incident by these two witnesses are totally different.
19. Fourthly, nowhere the PW.1 has stated that the accused took the name of her caste and with an intention to insult her caste, he scolded her. She has only stated that she belongs to A.K. community. Similarly PW.2 also nowhere stated that the accused took the name of their caste and with an intention to insult them by the name of their caste, he abused them. He has only stated that they belong to Bhovi caste.
Therefore, even with respect to the alleged abusing or insulting of PWs.1 and 2 by taking the name of their caste, neither of these two witnesses have specifically alleged anything about the accused. Therefore, the evidence of neither PW.1 nor PW.2 is trust worthy and does not inspire any confidence. The statement of PW.1 in her cross-examination that she does not know what is written in Exs.P-1 and 2 and also does not know who wrote them, also adds to this observation that the evidence of PWs.1 and 2 are not trust worthy.
20. As already observed, except PWs.1 and 2 none of the independent witnesses from PWs.3 to 8 have supported the case of prosecution. Though they were shown to be eye witnesses, they have totally turned hostile to the prosecution stating that they do not know anything about the alleged incident. Even the alleged panch witnesses PWs.9 and 10 have also turned hostile to the case of prosecution who stated that no mahazar, much less, as per Ex.P-2, was drawn in their presence.
21. In addition to the above, PW.11 the Police Officer, who registered the complaint in the station and submitted FIR also admitted that there was delay in registering the complaint and the same has remained unexplained. The complaint was registered and FIR was submitted on 30.03.2014. According to Pw.1 if the incident has taken place on 20.03.2016, the delay would be 10 days. According to PW.2, if the date of incident were to be 26.03.2014, then also there is delay of four days on their side. In either case, delay being inordinate, as admittedly not explained by any of the prosecution witnesses. In that background, when the evidence of PWs.1 and 2 are not trust worthy and all other independent witnesses from PWs.3 to 10 have turned hostile, the evidence of PW.12 the Investigating Officer would not take the case of prosecution any further. As such, analysing these evidence, the trial Court has rightly pronounced the judgment of acquittal, in which I do not find any reason to interfere. Accordingly, I proceed to pass the following order:
ORDER The Appeal stands dismissed. The judgment of acquittal passed by the learned II Additional Sessions Judge, Kolar, in Criminal Appeal No.29/2014, dated 05.03.2016, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court, without delay, along with Lower Court Records.
Sd/- JUDGE BMC