State Of Karnataka vs Hemanna S/O. Basappa Dyampur
2021 Latest Caselaw 3154 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 17TH DAY OF AUGUST, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              CRIMINAL APPEAL NO.2687/2012

BETWEEN:

STATE OF KARNATAKA
R/BY KOPPAL RURAL POLICE DIST: KOPPAL.
                                              ...APPELLANT
(BY SRI.RAMESH B.CHIGARI, HCGP)

AND:

1.     SRI.HEMANNA S/O. BASAPPA DYAMPUR
       AGE: 40 YEARS, OCC: AGRICULTURE
       R/O. BASAPUR, TQ: and DIST: KOPPAL.

2.     SRI.HANUMAPPA S/O. MALLAPPA SINDOGI
       AGE: 37 YEARS, OCC: AGRICULTURE
       R/O. BASAPUR, TQ: and DIST: KOPPAL.

3.    SRI.HANUMAPPA S/O. TIPPANNA KURUBAR
      AGE: 32 YEARS, OCC: AGRICULTURE
      R/O. BASAPUR, TQ: and DIST: KOPPAL.
                                          ...RESPONDENTS
(BY SRI.R.M.JAVEED, ADV.)

     THIS APPEAL IS FILED UNDER SECTION U/S 378(1) & (3)
OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGEMENT AND SET ASIDE THE ORDER OF ACQUITTAL
DATED 02.02.2012 PASSED BY THE SESSIONS AND SPECIAL
JUDGE, KOPPAL IN SPL.C.C.(AC)NO.84/2010 FOR THE
OFFENCES P/U/S 323, 324, 504, 506 & 355 OF IPC R/W SEC. 34
OF IPC AND U/S 3(I)(x)(xi) OF SC/ST (P.A.) ACT, 1989; AND
CONSEQUENTLY CONVICT THE RESPONDENTS FOR THE
AFORESAID OFFENCES.
                                 2




     THIS APPEAL HAVING BEEN HEARD THE RESERVED FOR
JUDGMENT ON 10.08.2021 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          JUDGMENT

The State has preferred this appeal under Section

378(1) & (3) of Cr.P.C. challenging the judgment of

acquittal passed by the Sessions & Special Judge, Koppal

in Spl.C.C.(AC) No.84/2010 whereby the

respondents/accused are acquitted for the offences

punishable under Sections 323, 324, 504, 506, 355 r/w

Section 34 of IPC and Section 3(1)(x)(xi) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as "SC/ST Act" for

short).

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial court.

3. The brief facts leading to the case are that,

complainant Yallappa has registered a complaint with the

Koppal Rural Police Station contending that he is the

permanent resident of Basapur village in Koppal Taluka

and his father had five children. That Shivappa is his elder

brother and he is also having elder sister by name

Nagamma. The house of accused No.1-Hemanna is

situated near the house of Nagamma. It is alleged that

quarrels used to take place between Nagamma and

accused in respect of tying cattle on the road. Four days

prior to the incident, quarrel took place between the wife

of Hemanna as well as Nagamma and when Shivappa had

been to the house of Nagamma, by noticing the quarrel he

had asked Hemanna to advise his wife not to take quarrel

with his sister and his family members. It is alleged that,

on 05.05.2010 at about 4.00 p.m. when Shivappa was

returning from his land towards his house and the

complainant was also coming to the house from his land,

and when Shivappa was near the school, all the three

accused persons came there and accused No.1 abused

Shivappa with reference to his caste and accused No.3

caught hold the neck of Shivappa and accused No.2

assaulted Shivappa with chappal on the chest as well as on

back. It is also alleged that, accused No.1 assaulted

Shivappa with brick piece and caused injuries. When, the

wife of Shivappa by name Mariyavva came for rescue,

accused No.3 abused her with reference to her caste and

at that time, son-in-law of the complainant and others

came there and pacified the dispute. Thereafter, an

Ambulance was secured and injured Shivappa was shifted

to the Koppal Government Hospital and thereafter he

lodged a complaint by setting law in motion. Thereafter,

investigation officer undertook the investigation and he

submitted the charge sheet against the accused persons.

Then, the learned Special Judge has taken cognizance and

accused were produced before him and initially they were

remanded to judicial custody and later enlarged on bail.

4. The prosecution papers were also furnished

and charge under Sections 323, 324, 504, 506, 355 r/w

Section 34 of IPC and Section 3(1)(x)(xi) of the SC/ST Act

are framed against the accused and they pleaded not

guilty. To prove the guilt of the accused, the prosecution

has examined 15 witnesses as P.Ws.1 to 15 and Exs.P1 to

P13 were marked along with M.Os.1 and 2. The statement

of the accused under Section 313 of Cr.P.C. is recorded to

enable them to explain the incriminating evidence

appearing against them in the case of the prosecution. The

case of the accused was of total denial and they did not

choose to lead any oral and documentary evidence in

support of their defence. After having heard the arguments

and perusing the records, the learned Sessions Judge

framed the following points for consideration:

i) Whether the prosecution proves that on 5.5.2010 at about 4-30 p.m, within the limits of Koppal Rural P.S. at Basapur village, A-1 to 3 in furtherance of their common intention to commit the offence they have picked up quarrel with CW-2 Shivappa, while he returning from his land and A-1 Hemanna assaulted with brick piece to Shivappa on his head and caused injury and thus A-1 to A-3 have committed an offence punishable under section 324 r/w Sec.34 IPC?

ii) Whether the prosecution further proves that A-3 caught hold the neck of Shivappa and A-2 Hanumappa, assaulted to Shivappa with Chappal on his chest and back and they voluntarily dis honoured him by such assault and thus A-1 to A-3 have committed an offence punishable under section 355 r/w Sec.34 IPC?

iii) Whether the prosecution further proves that accused have abused to Shivappa in the words like "¯Éà ¨ÉÆøÀÄr ¨ÁåqÀ ¸ÀƼɪÀÄUÀ£É" CW-3

Mariyawwa s "¯Éà ¨ÁåqÀ ¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß

ºÀqÀw£À¯ÉÃ" and insulted and provoked to them and

thus A-1 to A-3 have committed an offence punishable under section 504 r/w Sec.34 IPC?

iv) Whether the prosecution further proves that the accused threatened to the lives of CW-2 and CW-3 with dire-consequence to take away their lives and thus A-1 to A-3 have committed an offence punishable under section 506 r/w Sec.34?

v) Whether the prosecution further proves that A-1 to A-3 being non SC-ST members CW-2 Shivappa and CW.3 Mariyawwa, are Valmiki by caste which comes in S.T. and accused by knowing their caste intentionally abused them by taking their caste in the words like to CW-2

Shivappa as "¯Éà ¨ÉÆøÀÄr ¨ÁåqÀ ¸ÀƼɪÀÄUÀ£É" and to CW-3

Mariyawwa as "¯Éà ¨ÁåqÀ ¸ÀƼÉÃ" which is within the

public view and thus accused have committed an offence punishable under section 3(1)(x) SC/ST(P.A.) Act, 1989?

vi) Whether the prosecution further proves that by uttering the words like as "¯Éà ¨ÁåqÀ

¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß ºÀqÀw£À¯ÉÃ" with an intention

to outrage the modesty of CW-3 Mariyawwa who is S.T woman and thus A-1 to A-3 have committed an offence punishable under section 3(1)(xi) SC/ST Act, 1989?

vii) To what order?

5. The learned Sessions Judge by judgment dated

02.02.2012 answered all the issues in the negative and

acquitted the accused/respondents. Being aggrieved by

this judgment of acquittal, the State has preferred this

appeal.

6. Heard the arguments advanced by the learned

High Court Government Pleader for the appellant-State

and the learned counsel for the respondents/accused.

Perused the records.

7. Learned HCGP appearing for the appellant-

State submit that the judgment of acquittal is contrary to

law and evidence placed on record. The Sessions Judge

has failed to note that P.W.1 is an eye-witness, P.W.2 is

the injured witness and P.W.3 is also an eye-witness as

well as victim. P.W.8 is the doctor and the evidence of

P.Ws.1 to 3 corroborative to each other, while P.W.8

supported the evidence and hence, the learned Sessions

Judge has erred in appreciating evidence. He would also

contend that the Sessions Judge has also failed to

appreciate the evidence of P.W.9 who is the sister of the

complainant and no proper reasons have been offered and

the learned Sessions Judge has given undue importance to

the irrelevant improvements and omissions. He would

contend that the judgment of the trial court is erroneous,

illegal and call for interference by this court. Hence, he

would seek for allowing the appeal.

8. Per contra, learned counsel for the respondents

has seriously objected the appeal on the ground that

P.Ws.1 to 3 are interested witnesses and P.W.9 is not an

eye-witness. He would contend that there are lot of

contradictions, improvements and omissions found in the

evidence of P.Ws.1 to 3 and they were not explained. He

would also contend that mahazar panch witnesses have

turned hostile and except interested testimony, there is

nothing on record to bring home the guilt of the accused.

He would also contend that records would disclose the

tendency of the complainant in filing such complaint and

the trial court has appreciated the oral and documentary

evidence in detail and arrived at a just decision. He would

contend that the judgment of acquittal passed by the trial

court does not call for any interference. Hence, he would

seek for dismissal of the appeal.

9. Having heard the arguments and perusing the

records, the following point would arise for my

consideration:

Whether the judgment of acquittal passed by the trial court is erroneous, illegal

and capricious so as to call for any interference by this court?

10. The allegation of the prosecution discloses that

the complaint is lodged by Yallappa and injured Shivappa

is his elder brother. As per the case of the prosecution, the

sister of the complainant Nagamma was residing nearby

the house of accused No.1-Hemanna and they used to

quarrel each other regularly in respect of tying the cattle

on the road. It is also alleged that four days prior to

05.05.2010, a quarrel has taken place in the presence of

Shivappa and he advised accused No.1 and his wife and

his family members as well as his sister. Further, the

allegations discloses that on 05.05.2010 at about 4.00

p.m., Shivappa while returning from his land to his house

and the complainant was also coming to the house from

his land, and near the school, accused No.1 initially picked

up a quarrel with him and abused in filthy language. Then

accused No.2 came there and accused No.3 caught hold of

the neck of the complainant while accused No.2 assaulted

by chappal on the chest and back. It is also alleged that

accused No.1 has assaulted Shivappa with brick on his

head. Thereafter, wife of Shivappa came there and she

was also abused with specific words alleged in the

complaint as "¯Éà ¨ÁåqÀ ¸ÀƼÉà ¤ªÀÄäzÀÄ §ºÀ¼À DVzÉ ¤£ÀߣÀÄß ºÀqÀw£À¯ÉÃ". In

the complaint, specific wordings have been uttered. But

the evidence of the complainant and other witnesses give

a different story. P.W.1 who is the complainant, in his

evidence has deposed that, at 4.30 p.m. near school while

he was returning, all the three accused persons quarreling

with his brother, at that time, accused No.3 caught hold of

the neck while accused No.2 assaulted him by chappal and

accused No.1 assaulted him by piece of brick on his head.

It is also alleged that, when Mariyaavva intervened, she

was also abused with filthy language. The complainant did

not re-produced the words alleged in the complaint. Very

interestingly, in his cross-examination, he has given a

different version that, when he went there, only accused

No.1 and Shivappa were quarreling and thereafter,

accused Nos.2 and 3 came there. Further, he has deposed

in his cross-examination that, when he tried to intervene,

he was also assaulted. He admits regarding assault on him

was not stated by him before the police. He also

specifically asserted that before public gathered there,

accused had assaulted them, which is a new story invented

by him. Hence, it is evident that his evidence neither

established the specific avert acts or presence of any

accused. It is not in consonance with the complaint

allegations.

11. P.W.2-Shivappa is another witness and

according to him, the incident has taken place at 4.00 p.m.

However, as per the complaint allegations, all the accused

came there simultaneously, but this witness claimed that

near school first accused No.1 picked up quarrel with him

by abusing him with vulgar language, then accused Nos.2

and 3 joined there. He claimed that he lost consciousness

due to assault and his evidence is silent regarding the

assault on his wife. In the cross-examination, he has

admitted regarding this incident itself a counter case is

registered against him and others. He has further admitted

that in the counter case, they have obtained bail. His

evidence is completely silent regarding assault on his wife.

His cross-examination also discloses that he had earlier

lodged a complaint against other persons under the SC/ST

Act and subsequently got compromised. His cross-

examination also disclose that, when the galata has began,

the complainant was not present and he also asserts that

first the complainant came there and later on accused

Nos.2 and 3 came there, but the allegations made in the

complaint are entirely different. In his cross-examination,

he admitted that he suffered tenderness on the neck and

he obtained treatment from the doctor. But no evidence is

forthcoming in this regard and medical evidence is silent in

this regard. In the cross-examination, he further deposed

that he suffered blunt injuries and his shirt was

bloodstained and banion was torn, but they were not

seized by the investigating officer.

12. P.W.3 is the wife of P.W.2 and alleged to be an

eye-witness as well as victim. In her evidence, she

deposed that after getting information that galata is going

on near school, she rushed to the spot wherein the

accused were abusing her husband and accused No.2

assaulted him by chappal while accused No.3 throttled his

neck and accused No.1 assaulted him with brick on his

head. Regarding throttling of the neck, this witness first

time deposed which is an improvement and the evidence

of P.Ws.1 and 2 is silent in this regard. Further, she

claimed that when she intervened, accused only abused

her, but she stated that accused abused her by "K ¨sÉÆøÀÄr

¤Ã£ÀÄ §A¢AiÉÄãÀÄ HgÁUÀ EzÀÄÝ ¨Á¼Éé ªÀiÁqÀÄvÉÛÃ£É K£ÀÄ". But her

statement and the complaint allegations are entirely

different. Her evidence is silent regarding the abusive

words referred in the complaint. Hence, it is evident that

the evidence of P.Ws.1 to 3 is inconsistent and

contradictory and not corroborative. Further, their

evidence is against the recitals of the complaint regarding

specific words and the presence of accused Nos.2 and 3 at

the spot. Further, their evidence also discloses that there

is variance in the timings. Apart from that, it is also

evident that there was a counter case against the

complainant and his family members.

13. P.Ws.4 and 5 are the two mahazar witnesses

to Ex.P4, but both of them have turned hostile. P.Ws.6 and

7 are the seizure mahazar witnesses pertaining to chappal

under Ex.P5, but they have also turned hostile. Nothing

was elicited so as to impeach their evidence. P.W.9 is a

circumstantial witness and admittedly she is the sister of

the complainant, but not an eye-witness and her evidence

does not assist the prosecution in any way. P.Ws.10, 11

and 12 are claiming to be the eye-witnesses, but all these

three witnesses have turned hostile and denied the case of

the prosecution. P.W.8-Dr.Sayed Mehamood who deposed

that, Shivappa was brought to the hospital in the

ambulance and he found injuries in the middle of the head

and he has issued wound certificate as per Ex.P6. But the

complainant and witnesses all along alleged that the

assault was made in the middle of the forehead, but

medical evidence speaks different story. Further, in the

cross-examination of P.W.1, it is elicited that the name of

the assailants were not disclosed before the medical

officer.

14. Except the evidence of P.Ws.1 to 3 and 8,

there is no other material evidence and all the independent

eye-witnesses have turned hostile. P.Ws.1 to 3 are

interested witnesses and their evidence does not inspire

confidence as there are omissions regarding specific words

uttered with reference to his caste. Further, their evidence

is inconsistent regarding timings and presence of accused

Nos.2 and 3. As observed above, as per the case of the

prosecution, there was an assault on P.W.2 on the chest

and back, but the medical officer has not found any

tenderness. Even there was an allegation that accused

No.3 caught hold of his neck and he suffered injury to his

neck, as he was feeling pain, but that was also not

disclosed before the medial officer. Hence, the medical

evidence does not corroborate the evidence of P.W.2. The

counter case is also there wherein the complainant and his

family members have been prosecuted. No charge sheet

was filed in the said case and this case was proceeded

with. All these facts and circumstances clearly establish

that the self-interested testimony of the complainant and

his brother's wife and sister-in-law is not sufficient to bring

home the guilt of the accused. The abusive words uttered

by him are also inconsistent and medical evidence is also

not completely corroborative. Under these circumstances,

the prosecution has failed to bring home the guilt of the

accused as all the eye-witnesses have turned hostile and

even seizure was not established. Except self-interested

testimony of these three witnesses who are close relatives,

there is no other material evidence in this regard.

Absolutely, there is no evidence to prove the offence and

the averments in the evidence were completely silent

regarding allegations under the provisions of SC/ST Act.

15. The learned Sessions Judge has considered all

these aspects in detail and he has appreciated the oral and

documentary evidence in proper perspective. On re-

appreciation of the evidence, it is evident that the view

taken by the learned Sessions Judge is also possible and

when the view taken by the learned Sessions Judge is

possible, question of interfering with the said judgment of

acquittal does not arise at all. Looking to these facts and

circumstances, it is evident that the appeal is devoid of

any merits and the judgment of acquittal does not call for

any interference by this court. Accordingly, I answer the

point under consideration in the negative and proceed to

pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MBS/-