The State By vs Bramma W/O. Devendra
2021 Latest Caselaw 961 Kant

           IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH
      DATED THIS THE 16th DAY OF JANUARY, 2021
                           BEFORE
      THE HON'BLE MR.JUSTICE RAVI. V.HOSMANI
             CRIMINAL APPEAL NO.2865/2012

BETWEEN

The State by
Deputy Superintendent of Police,
Bellary Sub-Division,
Bellary.
                                        ... Appellant

(By Sri. V.M. Banakar, Addl. SPP)

AND

1.    Smt. Eramma W/o. Devendra,
      Age: 45 years,
      Occ: House wife.

2.    Smt. Shashikala W/o. Gopala,
      Age: 25 years,

3.    Suresh S/o. Devendra,
      Age: 22 years,

4.    Mahesha S/o. Devendra,
      Age: 21 years,
      Occ: Mechanic.

5.    Kum. Lakshmi D/o. Devendra,
      Age: 20 years.

All are R/o. 15 Ward,
                                     2




Ashraya Colony,
Siruguppa, Bellary District.

                                                        ......Respondents

(By Sri. Srinand A. Pachhapure, Advocate)

      This criminal appeal is filed u/s 378(1) & (3) of Cr.P.C.
seeking to grant leave to appeal against the judgment and order
of acquittal dated 05.12.2011 passed by the Special Judge,
Bellary, in S.C.No.15/2011 and set aside the judgment and order
of acquittal by allowing this appeal and consequently convict the
accused for the offence charged.

      This appeal being reserved for judgment on 19.11.2020
this day, the court, delivered the following:

                             JUDGMENT

Challenging the judgment dated 05.12.2011

passed by the Spl. Judge Ballari in Spl. Case

No.15/2011 acquitting accused for the offences

punishable under Sections 143, 147, 148, 323, 324,

355, 448, 504 read with Section 149 of Indian Penal

Code (for short "the IPC") and Sections 3(1)(x) and (xi)

of the Schedule Caste and Schedule Tribes (Prevention

of Atrocities) Act, 1989 ("SC/ST Act" for short)

acquitting the accused, the State is in appeal.

2. The brief facts leading to this appeal is that a

complaint was filed by Smt. Chandramma W/o. Dodda

Basappa on 19.02.2011 at 2:00 p.m. stating that when

she was sitting with her husband Dodda Basappa

worrying about her daughter Sharada aged 21 years,

who was taken by Gopal somewhere, at about 9:00

p.m. on 18.02.2011, her neighbours who were relatives

of Gopal namely i) Iramma W/o. Devendra ii) Lakshmi

W/o Gopal, iii) Suresh S/o. Devendra, iv) Mahesh S/o.

Devendra and v) another daughter of Devendra (name

not known), formed an unlawful assembly with common

intention of dishonouring complainant, trespassed into

her house and abused her in filthy language referring to

her caste. Her husband was beaten by Suresh and

Mahesh with sticks and slippers while Iramma, Lakshmi

and Devendrappa's daughter pushed the complainant

down and thereafter assaulted her with hands and

slippers thereby insulting her. On listening to her cries,

neighbours Dodda nandi and others came and stopped

the assault. When she and her husband were in pain

due to assault, she suspected that accused stole her

gold ear studs and cash of rupees five thousand. Due to

injuries, they were admitted to Shirguppa Government

Hospital and complaint given after taking treatment.

3. Based on said complaint, crime No.27/2011

was registered at Shiraguppa Police Station and FIR

forwarded to jurisdictional Special Court. After

investigation, charge sheet was filed in Spl. Case

No.15/2011, for offences punishable under Sections

143, 147, 148, 323, 324, 355, 448, 504 read with

Section 149 of IPC and Sections 3(1)(x) and (xi) of the

SC/ST Act. On appearance, the accused denied the

charges and sought trial. In support of the charges,

prosecution examined P.W.1 to P.W.9 and got marked

Exs.P1 to P7; MO1 and MO2 were identified. Thereafter

incriminating materials was explained to the accused

who denied the same and led their evidence. Two

witnesses namely DW1 and 2 were examined and

Exs.D1 and D2 were marked.

4. On consideration, trial Court framed the

following points for its consideration.

1. Whether the prosecution proves beyond all reasonable doubt that on 18.02.2011 at about 9.00 p.m. accused after forming themselves into an unlawful assembly with common object to insult a member of scheduled caste after trespassing in to the house of complainant PW.2 Chandramma abused her as "ªÀ i Á¢UÀ ¸À Æ ½ªÀ Ä PÀ Ì ¼É " .

2. Whether the prosecution proves beyond all reasonable doubt that on 18.02.2011 at about 9.00 p.m. accused after forming themselves into an unlawful assembly with common object to insult a member of scheduled caste after trespassing into the house of complainant accused No.1 Smt. Eramma, accused No.2 Smt. Shashikala and accused No.5 Smt. Lakshmi assaulted complainant with chapel and hands and thereby caused offence punishable U/s. 355, 323 r/w. 149 of IPC.

3. Whether the prosecution proves that on 18.02.2011 at about 9.0 p.m. accused by forming themselves into an unlawful assembly by holding deadly weapons, after trespassing into the house of complainant insulted complainant and her husband in filthy language with an intention to insult a member of scheduled caste, accused No.3 Suresh and 4 Mahesh assaulted complainant's husband with stick and caused injuries and thereby committed offences punishable U/s. 324 r/w. 149 of IPC.

4. What order?

5. After recording finding in the negative with

regard to Point Nos.1 to 3, impugned Judgment of

acquittal was passed. Challenging the same, State is in

appeal.

6. Shri V.M. Banakar, learned Addl. State Public

Prosecutor (ASPP) for appellant-State submitted that

impugned judgment was passed on improper

consideration of evidence on record and conclusions

drawn were contrary to evidence. The prosecution

substantiated the offences by examining not only

injured eyewitnesses but also independent eyewitnesses

supported by relevant documents and records. Assailing

the reasons assigned by trial Court as improper, it was

submitted that non-examination of independent

witnesses was not fatal to prosecution case. The test to

be applied while considering evidence of witnesses is

whether element of truth exists therein and whether it

is sufficient to support the prosecution case. It was

further submitted that P.W.2 and P.W.7 who are injured

eyewitnesses would be best witnesses and their

testimony is to be considered on a higher pedestal.

Even delay in filing FIR cited as a reason was improper

as complainant and her husband were injured in the

incident and they took treatment before giving

complaint. Thus, there was sufficient explanation for

delay. Elaborating the aspect, it was submitted that

incident occurred at 9:00 p.m. on 18.02.2011;

complainant was examined P.W.1-Doctor at 10:45 p.m.

same day and complaint was given on 19.02.2011 at

2:00 p.m. Therefore, delay was not exorbitant or

unexplained. Hence, reasons assigned by trail Court for

acquittal were perverse and acquittal required

interference.

7. On the other hand, Shri Shrinand

A.Pachchapure, learned counsel for respondent accused

submitted that entire prosecution case was riddled with

omission and contradictions and the prosecution

miserably failed to substantiate all necessary

ingredients for constituting the offences alleged against

accused. It was specifically submitted that P.W.1-

Doctor did not mention age of injuries in wound

certificates Exs.P1 and P2. No MLC was registered.

Though P.W.1 claimed to have registered MLC, no

records produced to substantiate the same. P.W.1 did

not mention size and shape of injuries and failed to

state possible cause in Ex.P.1 & Ex.P.2. Though in oral

testimony P.W.1 stated that they could be caused by

assault with sticks and slippers, in cross-examination

he admitted that such injuries could be caused due to

fall also. It was further submitted that even evidence of

P.W.2 complainant contained glaring inconsistencies.

She stated that complaint was given before going to

hospital for treatment. However, prosecution case was

that she took treatment first and thereafter complaint

was registered. During cross-examination she admits

that she lodged complaint at 10:00 p.m. which is in

contradiction with Ex.P3, which indicates it was

received at 2:00 p.m. on 19.02.2011. It was further

submitted that P.W.2 claimed to be an illiterate,

therefore complaint was written by one Ramappa as per

her instructions. But said Ramappa was not examined.

The prosecution also failed to prove any motive for

offence which cast doubt. In her testimony, P.W.2 does

not mention about theft of ear studs and cash and no

explanation offered for this omission which also gives

rise to doubt. P.W.3 Police Sub Inspector who received

complaint states that on 19.02.2011, complainant came

to Police Station to lodge complaint at 2:00 p.m. But

during cross-examination he states that she came to

Police Station on 18.02.2011 along with her husband

Dodda Basappa and they were referred to Hosptial.

P.W.3 further admits that no investigation was

conducted with regard to reasons for delay in lodging

complaint.

8. Learned counsel further submitted that even

P.W.4 admitted in his cross-examination that Police had

not recorded his statement under Section 161 of Cr.P.C.

He further admits that he did not go inside house of

complainant and seen the incident. He admits he is a

relative of P.W.2. Therefore, evidence of P.W.4 cannot

be believed. P.W.5 pancha witness failed to identify the

MOs. P.W.6 the independent eyewitness admits in his

cross-examination that he was standing at a distance of

30 feet from the spot and from there house of

complainant was not in direct view. Even P.W.7

husband of P.W.2-complainant, admitted in cross-

examination that he does not know contents of his

statement recorded under Section 161 of Cr.P.C. He

admits possibility of other neighbours being present in

their houses at the time of incident. But, there is no

explanation by Investigating Officer, why no

investigation was conducted and why independent

witnesses were not examined in this case. In his

testimony P.W.7 stated that he went to Police Station

along with Shivappa and Parameshwarappa,

immediately after incident and thereafter his wife

arrived there. This is in contradiction with statement of

P.W.2 that she went to Police Station to give complaint

and does not mention about P.W.7. Further contrary to

record Ex.P.1, P.W.7 says that he was taken to hospital

along with Police Constable. Lastly, referring to

statement of P.W.2 and P.W.7 that incident occurred

inside their house, it was submitted that the incident

was not in 'public view' which was an essential

requirement for constituting offence under Section

3(1)(x) of SC/ST Act. In support of his submission,

learned counsel relied upon decision in the case of

Chandra Pujari Vs. State of Karnataka reported in

1997 (4) KLJ 81.

9. Heard learned counsel, perused impugned

judgment and records.

10. In order to verify whether a case of

interference as sought for appellant - State is made

out, an examination of evidence on record is necessary.

P.W.1 Doctor who examined P.W.2 complainant and

P.W.7 her husband testified that they came to him on

18.02.2011 at 10:45 p.m. P.W.7 Dodda Basappa

appeared voluntarily with history of injuries in assault.

Ex.P1 is his wound certificate. Three injuries were

noticed namely i) multiple abrasion on lateral aspect of

knee joint, ii) abrasion on left knee and iii) abrasion on

right great toe. They were simple in nature. He stated

that these injuries could be caused by beating with

sticks and slippers. Ex.P2 is the wound certificate of

P.W.2-complainant. It mentions that she was brought

for medical examination by a Police Constable. On

examination, one injury namely abrasion on ventral

aspect of right wrist joint was noticed. The injury was

simple in nature. Though P.W.1 stated that such could

be caused by assault with stick and slippers, in his

cross-examination, he admits that such injuries can be

caused due to fall also. Further, P.W.2 failed to produce

MLC registered. Even the MOs. were not examined by

him to verify whether injuries mentioned in Exs.P1 and

P2 could be caused by MOs. P.W.2 testified that

accused entered her house and thereafter assaulted her

and her husband by abusing in filthy language referring

to her caste and also assaulting with sticks and

slippers. But P.W.4 the neighbour of complainant, who

came to spot after hearing her cries stated that when

he came outside his house, he saw accused abusing

P.W.7 referring to his caste and thereafter accused

entered the house and pulled P.W.7 outside and

thereafter, accused No.3-Suresh assaulted him with

slippers; Accused No.4-Mahesh assaulted him with stick

on his knees and Accused Nos.1, 2 and 4 assaulted

P.W.2 with slippers. Thereafter, he along with P.W.6

and Rangappa stopped the assault. In his cross-

examination, P.W.4 admits that his house is at a

distance of 50 feet from the complainant's house but

on a different street. The evidence of P.W.4 is in stark

contradiction with that of P.W.2. Considering the

distance between the two houses, a doubt arises

whether it would be possible for P.W.4 to hear cries of

P.W.2 inside his house, at a distance of 50 feet. That

apart, the narration by P.W.4 is as if he was an

eyewitness from the moment accused arrived at the

spot, which contradicts with evidence of P.W.2 and

P.W.7.

11. P.W.6 Similarly even another neighbour of

complainant stated that on the date of incident at about

9:00 p.m. he was chatting with P.W.4 and Rangappa,

when he heard cries from complainant's house. When

he went there, he saw accused No.3 assaulting P.W.7

with slippers, accused No.4 was assaulting with stick on

the knees of P.W.7 and accused nos.1, 2 and 4 pulling

complainant around and assaulting her with slippers. In

his cross-examination, he states that his house is at a

distance of 100 feet from complainant's house and at

the time of incident, he was standing at a distance of

30 feet and her house was not in direct view from

where he was standing. He further admits that apart

from him there were 5-6 other persons whose details he

does not know. Hence, like P.W.4, evidence of P.W.6

has to be held as doubtful. Firstly, P.W.2 does not state

that P.W.4 and P.W.6 were present and witnessed

entire incident. Secondly, P.W.6 admitted that P.W.2's

house was not visibile from where he was standing. And

thirdly, he was standing at a distance of 30 feet.

12. P.W.7 is husband of P.W.2-complainant and

an injured eyewitness. In his examination in chief, he

states that on 18.02.2011 at 9:00 p.m. he and his wife

were in their house. At that time, he heard accused

No.1 saying "CPÀ Ì CPÀ Ì ... £À £ À ß ªÀ Ä UÀ £ À £ À Ä ß PÉ Æ qÀ Ä .." and abusing

them "ªÀ i Á¢UÀ ¸À Æ ½ªÀ Ä PÀ Ì ¼É ... ªÀ i Á¢UÀ ¸À Æ ½" Thereafter accused

No.3 assaulted him with slipper on his right shoulder

while Mahesh assaulted with him stick on his knee. He

states that he is working as Subject Co-ordinator in

Education Department. He has stated that he went to

Police Station first along with his friends and his wife

followed him thereafter. However, there is no

explanation why complaint was not written by him but

by another person Suresh. He admits that he went to

Police Station at 9:30 p.m. and Police did not accept

complaint on that night and he was taken to hospital

by Police. He further admits that his wife took inpatient

treatment for two days; which are glaring

contradictions. According to P.W.3, P.W.2 came to

Police Station at 2:00 p.m. and Ex.P3 complaint

however, is registered at 2:00 p.m. Further contrary to

his statement, Ex.P1 does not mention P.W.7 being

accompanied by Police for medical examination by

P.W.1. There is absolutely no explanation regarding

these contradictions. This is be a material omission on

the part of the prosecution.

13. P.W.3 is the Police Sub Inspector, who

received the complaint on 19.02.2011. P.W.3 states

that on 19.02.2011 when he was SHO of Shiraguppa

P.S., complainant approached him with written

complaint at about 2:00 p.m. After registering Crime

No.27/2011, he made over FIR to the Spl. Court. But in

his cross-examination P.W.3 states that P.W.2 came to

Police station to lodge complaint on 18.02.2011 and she

was referred to hospital. He also admits that he did not

investigate reasons for delay in filing the complaint.

14. P.W.5 is a mahazar witness. He states that

he is a resident of Shirigeri. He does not properly

explain his presence in 15 t h Ward, Ashraya Colony in

Shiraguppa i.e., the spot of the incident on 19.02.2011,

when the mahazar was drawn. In his cross-

examination, he states that the Police wrote the

panchanama and took his signature later. Therefore, his

testimony would not be fruitful for the prosecution.

15. The evidence of P.W.8-Dy.S.P. who received

the intimation of registration of Spl. Case under the

SC/ST Act and P.W.9 the carrier of the FIR to the Spl.

Court would not materially improve the prosecution

case. In fact, P.W.9 fails to explain the delay in the FIR

reaching the Spl. Court.

16. Under the circumstances, the reasons

assigned by the trial Court for acquittal appear fully

justified; the conclusions drawn are with reference to

evidence on record and they are neither perverse nor

suffer from material irregularity calling for interference

by this Court. In the result, there is no merit in the

appeal. The same is accordingly dismissed.

Sd/-

JUDGE

BVK