Karnataka High Court
State Of Karnataka vs Kishor Vajra Naik on 17 February, 2022
Bench: Dr. H.B.Prabhakara Sastry, S.Rachaiah
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17th DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.100392/2017
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
HALIYAL POLICE STATION,
U.K. KARWAR,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.. APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
AND:
KISHOR VAJRA NAIK
AGE: 49 YEARS,OCC: SDA IN
MINOR IRRIGATION DEPARTMENT,
SUB-DIVISION, HALIYAL,
R/O: NEAR GOVERNMENT COLLEGE,
HAVAGI VILLAGE, HALIYAL TQ.,
DIST: KARWAR.
.. RESPONDENT
(BY SRI. R.H. ANGADI, ADV.)
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2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND
TO SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 04.07.2017 PASSED BY THE SPECIAL JUDGE, UTTARA
KANNADA, KARWAR, IN SPECIAL CASE NO.18 OF 2012 AND TO
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 448, 504, 323, 355, 427 AND 506
OF IPC AND UNDER SECTION 3(1)(X)(XI) OF SC AND ST
(PREVENTION OF ATROCITIES) ACT 1989.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING
THIS DAY, Dr.H.B.PRABHAKARA SASTRY J., DELIVERED
THE FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had
initiated a criminal proceeding against the present
respondent arraigning him as an accused for the offences
punishable under Sections 448, 504, 323, 355, 427 and 506
of the Indian Penal Code (hereinafter for brevity referred to
as 'IPC') and under Section 3(1)(x) and 3(1)(xi) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter for brevity referred to as
'SC & ST Act') in Spl. Case No.18/2012, in the Court of the
learned Special Judge, Uttara Kannada, Karwar (hereinafter
for brevity referred to as 'the Special Court'). After the trial,
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the accused was acquitted of all the alleged offences.
Seeking setting aside of the impugned judgment dated
04.07.2017, the State has preferred the present appeal
under Section 378(1)&(3) of the Code of Criminal Procedure,
1973 (hereinafter for brevity referred to as 'Cr.P.C.').
2. It is the case of the prosecution that on
30.07.2012 between 1:30pm to 1:45pm, when the
complainant-Smt.Shivakka Sangolli-(PW.1) and her
daughter-in-law Smt.Ratna Sangolli-(PW.4) were taking food
in their house, the respondent/accused barged into their
house and abused them in filthy language taking the name of
their caste and shouted that since Narayan is proceeding to
file a complaint alleging theft of a gas cylinder, he will not
leave him with his life. He also abused the complainant and
her daughter-in-law-Ratna taking the name of their caste and
in abusive language. Apart from abusing them, the accused
also assaulted the complainant and PW-4 with a chappal. He
also damaged the utensils and household articles inside and
dragged both the complainant and her daughter-in-law
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outside their house. While abusing them in filthy language,
pulled saree worn by them and outraged their modesty.
After registering the complaint in Station Crime No.139/2012
for the offences punishable under Sections 448, 504, 323,
355, 427 and 506 of IPC and for an offence under Section
3(1)(x) and 3(1)(xi) of SC & ST Act, the Police conducted
investigation and after completing investigation, filed
charge-sheet against the accused for the alleged offences.
3. Since the accused pleaded not guilty, the trial
was held wherein in order to prove the alleged guilt against
the accused, the prosecution got examined seventeen
witnesses from PW.1 to PW.17 and got marked sixteen
documents from Exs.P-1 to P.16 and material objects M.Os.1
to 4. Statement of the accused under Section 313 of Criminal
Procedure Code was recorded. Neither any witnesses were
examined from the accused's side nor any documents were
marked as exhibits.
4. After hearing both side, the learned Special
Judge by his impugned judgment dated 04.07.2017 acquitted
the accused for the offences charged against him.
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5. The respondent/accused is being represented by
his counsel.
6. The Special court records were called for and the
same are placed before this Court.
7. Heard the arguments from both side. Perused the
material placed before this Court.
8. The points that arise for our consideration are:
i) Whether the prosecution has proved beyond
reasonable doubt that on 30.07.2012 between
1:30 pm to 1:45 pm, the accused committed
house trespass into the house of the complainant
and committed an offence punishable under
Section 448 of IPC?
ii) Whether the prosecution has proved beyond
reasonable doubt that on the aforementioned
date, time and place, the accused with an
intention to provoke breach of the peace abused
the complainant and PW-4 by abusing them as
belonging to Holeya caste and 'dirty sons of
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bitch' and caused insult to them and thereby
committed an offence punishable under Section
504 of IPC?
iii) Whether the prosecution has proved beyond
reasonable doubt that on the aforementioned
date, time and place, the accused voluntarily
assaulted PW.1 and PW.4 and caused hurt to
them and thereby committed an offence
punishable under Section 323 of IPC?
iv) Whether the prosecution has proved beyond
reasonable doubt that on the aforementioned
date, time and place, the accused, in the absence
of any grave and sudden provocation by PW.1
and PW.4, assaulted PW.1 and PW.4 and used
criminal force against them intending thereby to
dishonour PW.1 and PW.4 by assaulting both
PW.1 and PW.4 and pulling their saree, tearing
the blouse worn by them and thereby has
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committed an offence punishable under Section
355 of IPC?
[
v) Whether the prosecution has proved beyond
reasonable doubt that on the aforementioned
date, time and place, the accused caused
damage to the household articles, utensils of a
value of more than `50/- and thereby has
committed an offence punishable under Section
427 of IPC?
vi) Whether the prosecution has proved beyond
reasonable doubt that on the aforementioned
date, time and place, the accused put life threat
to PW.1 and PW.4 and thereby has committed an
offence punishable under Section 506 of IPC?
vii) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned above, the accused knowing
fully well that PW.1 and PW.4 were belonging to
Madara (Methri) community, which is a
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scheduled caste, abused them taking the name
of their caste in the public place with an intention
to insult them in public and thereby has
committed an offence punishable under Section
3(1)(x) of SC & ST Act?
viii) Whether the prosecution has proved beyond
reasonable doubt that on the date, time and
place mentioned above, the accused knowing
fully well that PW.1 and PW.4 were belonging to
Madara (Methri) community and himself
belonging to Hindu Shergara caste, has assaulted
PW.1 and PW.4, tore the blouse worn by them
and pulled the saree worn by them, insulted
them in public and thereby has committed an
offence punishable under Section 3(1)(xi) of SC
& ST Act?
ix) Whether the judgment under appeal deserves
any interference at the hands of this Court?
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9. The prosecution in order to prove the case
against the accused examined seventeen witnesses from
PW.1 to PW.17, among whom PW.1, PW.4, PW.5 and PW.15
have spoken about the caste of the alleged victims i.e., PW.1
and PW.4. PW.1-the complainant, PW.4-alleged victim and
PW.5 husband of PW.4, have stated that they belong to
Methri community coming under scheduled caste. PW.15-
then Tahsildar of the jurisdictional taluka, Haliyal, has stated
that considering the requisition given to her by the
Investigating officer in this case, she had verified the caste of
the complainant, injured and the accused and has issued the
caste certificate as per Exs.P.11, P.12 and P.13 respectively.
She has stated that by her enquiry, she came to know that
the complainant Shivakka and her daughter-in-law-Ratna
belong to Madara caste falling within scheduled caste and the
accused was belonging to Hindu Sherugara caste. The said
evidence of PW.1, PW.4, PW.5 and PW.15 regarding the
caste of the complainant, injured and the accused is not
seriously disputed or denied from the accused's side.
Verification of Exs.P.11 and P.12 which is also supported by
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the evidence of the investigating officer i.e., PW.17 go to
show that PW.1 and PW.4 belong to Madara (Methri) caste
coming under scheduled caste and perusal of Ex.P.13 go to
show that accused belong to Hindu Sherugara caste. As
such, it is established that both PW.1 and PW.4 belong to the
scheduled caste and the accused does not come under either
the scheduled caste or the scheduled tribe.
10. Regarding the alleged incident said to have taken
place, it is PW.1, PW.4, PW.5, PW.6 and PW.7 who have
given their evidence.
11. PW.1(CW.1)-Shivakka Sangolli is the complainant
in this case, who in her examination-in-chief has stated that
they belong to Methri community, which is a scheduled caste.
PW.4(CW.6)-Ratna Sangolli is her daughter-in-law and CW.7
is her son. They have a house within the limits of Havagi
village on the road leading to college. She stated that the
accused is known to them whose house is at a short distance
from her house and accused knows that the complainant and
her family belong to the scheduled caste. The witness has
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further stated that with respect to a gas cylinder, a dispute
had taken place between her son and the accused. Her son
had given a gas cylinder for use to the accused. However,
when her son sought its return, the accused refused to
deliver that cylinder, on the contrary stated that, the said
cylinder belongs to accused, as such, CW-7 should give
money and take it back. She also stated that her son is
running a motor garage in the very same building where they
reside.
With respect to the incident, the witness has stated that
on 30.07.2012 when herself and her daughter-in-law were
alone in the house and son had gone outside and grand
children had been to school, at about 1:45 pm while they
were taking lunch, the accused barged into their house from
the back door and addressing his son, asked as to where he
has gone. The witness stated that while calling her son, he
addressed him as a Holeya (scheduled caste) and son of a
bitch. She also alleged that her son had filed a complaint
against him. In spite of the witness and her daughter-in-law
telling that CW-7 was not at home, still, the accused
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damaged the utensils and household articles which were
inside and assaulted her daughter-in-law. Dragging her
daughter-in-law and herself outside the house, he assaulted
them on the side of the road. He also assaulted her
daughter-in-law on her left ear with the slipper which he was
wearing. Due to which, the ear stud which she was wearing
was separated and it was lost. They telephoned to CW.7.
The witness further stated that both herself and her
daughter-in-law went to the complainant-Police Station in an
autorickshaw, however, the Police before registering the
complaint asked them to go to the hospital. Accordingly,
they went to the hospital. However, when they returned to
the Police Station, CW-7 was already there. The Police did
not receive their complaint at the first instance. They
received the complaint only on the next day. Stating so, the
witness has identified the complaint at Ex.P-1 and her
signature therein at Ex.P-1(a). She also stated that since the
accused assaulted her on her back, she got hurt and her
daughter-in-law also was hurt by the assault of the accused.
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The saree and blouse worn by her daughter-in-law were torn
by the accused.
The witness further stated that, after receiving the
complaint, the police had visited their house and as per the
spot shown by herself and her daughter-in-law, the Police
drew the scene of offence panchanama and collected the left
leg chappal (foot wear) of the accused which the accused had
left in the place which had fallen in the spot and also
collected the torn saree and blouse of her daughter-in-law
which articles the witness has identified at M.O.1 to M.O.3.
She also stated that, the accused, by his act, has insulted
them.
12. PW.4(CW.6) Ratna Narayana Sangolli has
followed her mother-in-law i.e. PW.1 in her evidence and
reiterated what her mother-in-law had stated. She has
stated that they belong to Methri community which is a
scheduled caste. About the incident also, she reiterated what
PW.1 has stated. She also stated that, the accused having
trespassed into their house, abused them including her
husband in filthy language taking the name of their caste and
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also dragging them outside, physically assaulted by making
use of his chappal. She too has identified M.Os.1 to 3 and
she also identified the scene of offence panchanama at
Ex.P-2.
13. PW.5(CW-7)-Narayana Kallappa Sangolli has
stated that PW.1 is his mother and PW.4 is his wife and that
he is running a garage on the front side of their house. They
have back a door to their house from which anybody can
enter their house. He stated that they belong to Methri
community which is a scheduled caste. He further stated
that since the accused was known to them since a long time,
he is aware of their caste. Himself and PW.1 had stood as a
surety in a criminal case to the accused. With respect to a
plot, a dispute took place between the accused and himself,
in which regard, the accused had filed a suit also. The
witness further stated that in the year 2007 itself, he had
given a gas cylinder to the accused for his use and return.
However, despite these people asking, the accused did not
return the gas cylinder till the year 2012. On the other hand,
he started arguing that, he (PW.5) had not given gas cylinder
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to him. In that regard, he was thinking of giving a complaint
against the accused and had told the accused accordingly.
About the incident, the witness has stated that on
30.07.2012 since it was a weekly holiday to his garage, he
had been to Haliyal to see his brother who was under medical
treatment. On that day, the accused had trespassed into his
house and abused his wife and mother and also assaulted
them publicly. Coming to know about the same, he went to
the complainant-Police Station. At that time, his wife and
mother had been to the Government hospital to take
treatment. Joining them, he once again went to the Police
Station. However, the Police, making them to wait for a long
time, did not receive the complaint and told that they would
summon the accused and enquire with him. Since the
accused did not come, on the next day evening, they
received the complaint from his mother. He stated that the
accused has insulted them by taking the name of their caste.
14. PW.6(CW.8) Govind Yallari Bille in his
examination-in-chief has sated that he is the resident of
Kumbarakoppalu taluk. On the date 30.07.2012 he had been
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to Teragoan village. From there having gone to Alanvar and
taking lunch, he was going towards Haliyal along with CW.9-
Wilson on the motorcycle. While they were going near the
house of the complainant, they saw in the backyard of the
complainant, a quarrel was going on between the accused,
the complainant and her daughter-in-law. He stopped the
motorcycle. People had gathered in the spot. The accused
was pulling the saree worn by the complainant and her
daughter-in-law. The witness stated that he, pacified the
dispute, however, he has not actually seen the accused
assaulting the complainant and her daughter-in-law.
However, accused was holding a chappal in his hand and was
scolding with abusive language as Holeya (a scheduled caste)
and son of bitch. He did not get as to whom the accused was
abusing. Thereafter, the accused went towards his home.
The complainant and her daughter-in-law went towards the
police station to lodge the complaint. The daughter-in-law of
the complainant had given him the telephone number to
which he called. The said call was received by Narayana to
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whom he informed about the incident. He has identified the
accused in the Court.
15. PW.7(CW.10)-Mahadevi Balappa Bedar in her
examination-in-chief has stated that she is a resident of
Mangalwad village and is doing business in Bangles by
roaming village to village and house to house. About three
years back, after doing her business in Havagi village, when
she was proceeding towards Guttigeri village on Alnawar
road, where the house of the complainant is there, the
accused, who was present in the Court was quarrelling with
Shivakka and her daughter-in-law. She went there. The
accused was holding chappal and was assaulting them. He
was abusing them taking the name of their caste alleging
that Narya(Narayan) had lodged the complaint. People had
gathered there. Among them, two male persons pacified the
dispute. She advised the assaulted ladies to go to the Haliyal
Police Station and lodge a complaint. The witness has
identified M.Os.1 to 3 in the Court.
16. PW.1, PW.4, PW.5, PW.6 and PW.7 were cross-
examined from the accused's side wherein all those
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witnesses adhered to their original evidence. Though PW.1,
PW.4 and PW.5 admitted that there was a dispute between
the accused and themselves with respect to a vacant site
adjoining to their house and that the accused had filed a civil
suit against them, however, all these witnesses denied the
suggestion that, it is for the said reason, they have filed a
false case against the accused.
PW.6 and PW.7 denied the suggestion that they are the
relatives of PW.1 and PW.4, as such, they are giving false
evidence. Except the same, nothing could be elicited in
favour of the accused in the cross-examination of these
witnesses.
17. After the above set of witnesses examined by the
prosecution, the second set of witnesses upon whom the
prosecution has relied upon was, the evidence of the Medical
Doctor, who was examined as PW.8 and other official
witnesses, who were examined as PW.9, PW.10, PW.11 and
PW.15.
18. PW-8(CW.13) Dr. Asha M.D, has stated that she
has been working as Obstetrics and Gynecologist in the
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Government Hospital at Haliyal. On 30.07.2012 in the
afternoon at 3'O clock, Haliyal Police had brought two women
to her with the history of assault along with a requisition
letter. Among those two women, she first examined
Smt.Ratna Sangolli (PW.4) who complained of pain in her left
chin and left portion of her body. However, there was no
external injury found on her body. In that regard she issued
wound certificate as per Ex.P-4. Seeing the chappal at M.O.1
in the Court, she has stated that it is a gents chappal and if
any one is assaulted with that chappal and hands, the pain
alleged by PW.4-Ratna is possible to be caused.
The witness, further, stated that, on the same afternoon
at about 3:10 pm, she also examined Smt. Shivakka who
also did not have visible injuries on her body. However,
Shivakka complained of total pain in her body. In that
regard, she (this witness) has issued the wound certificate as
per Ex.P-5. She further stated that, if any one is assaulted
with a chappal at M.O.1, the pain as alleged by Shivakka can
be caused. In her cross-examination, PW.8 has admitted a
suggestion as true that, in case, if any one is forcibly
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assaulted with M.O.1, there is possibility of some impression
in the form of a mark appearing on their chin and they
sustaining injury. She also admitted a suggestion as true
that, in case of a ear stud is found separated due to assault,
there is possibility of the injury being caused on the ear.
19. PW.10(CW-4) Renukaa Laxman Koppad, the then
Panchayat Development Officer of Havagi village stated that,
based upon the details available in the records maintained by
the Grama Panchayat, upon the request of the Investigating
Officer, she had issued a house extract as per Ex.P-7 stating
that the house involved in the case was standing the name of
the PW.4 and PW.5. She was not cross-examined from the
accused's side.
20. PW.11(CW.15) Pradeep has stated that the
accused was working in their Minor Irrigation Sub-Divisional
Office, at Haliyal as a Second Division Assistant. In that
regard upon the request made by the Investigating Officer,
he had issued the employment certificate as per Ex.P-9. In
his cross-examination, though attempts were made to show
that, the accused remains in the office from 10:00am to
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5:30pm for the whole day, the witness stated that, he
cannot say so. He also stated that the lunch break in the
office is between 1:30pm to 2:15pm.
21. With respect to the spot of the offence, PW.1 and
PW.4, who are alleged to be the injured witnesses in the
incident, have stated that it was in their house as well on the
backyard of their house, which is connected to the road, as
such it is a public place. They have also stated that the
police had drawn the scene of offence panchanama as per
Ex.P-2 and recovered the left footwear of the accused which
had fallen in the spot and torn saree and blouse of PW.4
which they have identified at M.Os.1 to 3. Though the
prosecution examined PW.2 and PW.14 as the panchas for
the scene of offence panchanama but PW.2 did not support
the case of the prosecution. However, PW.14 has supported
the case of the prosecution and even identified M.O.1 to
M.O.3.
22. PW.9(CW.11) Mahadev Erappa Koli has stated
that, he is an Assistant Engineer in PWD. Based upon the
request made by the Investigating officer, he has visited the
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scene of offence and inspected the same, as shown to him he
has prepared the sketch as per Ex.P-6 and handed it over to
the Investigating Officer. Thereafter, he has prepared one
more sketch showing the distance between MIS Sub-Division
Office to the house of the complainant as per Ex.P-16 and
that the said distance is about 1.05 km.
23. PW.3(CW.5) Chandru Yallappa Kammar has
stated that the seizure panchanama of the right foot wear
said to be belonging to the accused as per Ex.P-3 was drawn
in his presence.
24. In the light of the above evidence of the
witnesses, it was the argument of the learned Additional
State Public Prosecutor that the evidence of PW.1, PW.4,
PW.5, PW.6 and PW.7 has clearly established that the
accused has criminally trespassed into the house of the
complainant, abused the complainant and her son in filthy
language and also taking the name of their caste and he
caused damage to the household articles and outraged the
modesty of the complainant and her daughter-in-law and
also assaulted them in filthy language and threatened them
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to their life. As such, the offences alleged against the
accused has been clearly established in the evidence of these
witnesses. However, the Special Court has not believed their
evidence without any proper reasons. As such, the
impugned judgment warrants interference at the hand of this
Court.
25. Learned counsel for the respondent/accused in
his argument submitted that the prosecution utterly failed to
prove the motive behind the crime. Non-examination of the
neighbours also creates a doubt in the case of the
prosecution. He further submitted that PW.6 and PW.7 are
not reliable witnesses because they are not neighbours. He
also expressed the doubt in the case of the prosecution since
the alleged pillion rider-Wilson was not examined by the
prosecution. Not finding of any external injury upon PW.1
and PW.4 was also canvassed by him as a point to suspect
the case of the prosecution. Stating that recovery of right
foot wear of the accused is doubtful and there is no
consistency in the evidence of PW.3, the learned counsel
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submitted that the judgment under appeal does not warrant
any interference at the hands of this Court.
26. From the evidence of the above witnesses, it is
not in dispute that the family of the complainant and the
accused are known to each other since several years and also
that, they are residing in close proximity. It is also an
admitted fact that in respect of a vacant land, adjacent to the
house of the complainant, there is a dispute between them,
in which connection, the accused had instituted a civil suit
against the accused. It is also not in dispute that PW.1,
PW.4 and PW.5 belong to Madara (methri) community which
is a scheduled caste and that the accused had the knowledge
of PW.1, PW.4 and PW.5 belonging to scheduled caste.
27. The evidence of PW.1 and PW.4 has come in
uniformity and it clearly go to show that, in connection with
an alleged non-delivery of a gas cylinder, the accused is
stated to have barged into the house of the complainant on
30.07.2012 at 1:30pm and searching for PW.5, who
admittedly is the son of PW.1 and husband of PW.4, abused
them in foul language and also taking the name of their caste
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as Holeya (scheduled caste) and son of bitch. No doubt,
PW.1 and PW.4 themselves claim to be the affected
persons(injured) in the incident, however, the evidence of
PW.6 and PW.7 corroborates the evidence of PW.1 and PW.4.
Though the learned counsel for the respondent submits that
PW.6 and PW.7 are relatives, as such they are interested
witnesses but except making a suggestion to that effect in
the cross-examination of PW.1, nothing is placed before the
court to show that they are interested witnesses. The
suggestion made to PW.7 in that regard was also not
admitted as true by the said witness. As such, it was
necessary for the accused to establish that PW.6 and PW.7
are not only the relatives but also are interested witnesses.
PW.6 has shown in his evidence that he had reason to
witness the alleged incident by stating that, on that particular
day, while he was going on his motorcycle along with one
Wilson, near the house of the complainant, he has seen the
incident. He has also stated in his evidence as to, on that
day, where he had been and from where he was going to
Haliyal. The said aspect has not been specifically denied.
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Nothing was brought in his cross-examination to show either,
that his presence at the alleged place of incident was
unnatural or uncalled for or that he was relative of the
injured. The said witness in his evidence though has stated
that the quarrel was going on and accused was pulling the
saree worn by the victims and he rescued them but he has
specifically stated in his examination-in-chief itself that he
has not seen the accused assaulting the complainant and
her daughter-in-law. Had he really been an interested
witness and had interest in ensuring the conviction of the
accused, he would have also stated that he has seen the
accused assaulting PW.1 and PW.4, which he did not do.
Therefore, in the absence of there being any evidence to
believe that he is a relative of PW.1 and PW.4 and that he is
an interested witness, a mere contention that PW.6 was a
relative and as such he is an interested witnesses is not
acceptable. On the other hand, his evidence corroborates
the evidence of PW.1 and PW.4 and shows that the accused
had gone to the house of PW.1 and PW.4 and had initiated
quarrel with them. In the said process, he had also pulled
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saree worn by those ladies. His evidence also shows that the
accused was abusing them.
28. Added to this, in the cross-examination of PW-6,
a suggestion was made to the witness that on the said date,
from Alnavar, both PW.6 and Wilson directly went to their
place. Though, the witness has not admitted the said
suggestion as true, however, by making such suggestion, the
accused has admitted that PW.6 and Wilson were together
and they had been to Alanvar on the said day. The same is
the case of PW.6 also who has stated that on the said day,
he had been to Teragoan village and from there to Alnavar,
after having lunch at Alnavar, he was proceeding towards
Haliyal along with Wilson. Thus, the cross-examination of
PW.6 rather-than weakening the evidence of PW.6, has
added few more points in favour of the prosecution through
the above suggestion.
29. The evidence of PW.7 also supports the case of
the prosecution. No doubt, she too was alleged to be a
relative of PW.1 and PW.4 from the accused's side. However,
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the specific suggestion made to the said witness in that
regard in her cross-examination from the accused's side was
not admitted as true by the said witness. In such a situation,
it was for the accused to show that she is in fact a relative of
the complainant which the accused did not do. On the other
hand, PW.7 in her evidence by stating that she is a bangle
vendor roaming from village to village and visiting house to
house, has shown that there was all the reason for her to
visit Haliyal village and as such, witnessing the alleged
incident.
Apart from PW.6, even PW.7 has also stated that it was
the accused who was abusing PW.1 and PW.4 in filthy
language and was quarrelling with them. This witness has
stated that two gents resolved the dispute and that she
advised those two ladies to go to Haliayal Police Station and
to lodge a complaint. The evidence of PW.6 that he resolved
the dispute gains support from the evidence of PW.6.
Similarly, the evidence of PW.1 that, after the incident, she
joined by her daughter-in-law went to Haliyal Police Station
to lodge a complaint also gains support and corroboration
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from the evidence of PW.7 that she had advised the
complainant to go to the police station. Thus, the evidence
of independent witnesses i.e. PW.6 and PW.7 fully
corroborates the evidence of PW.1 and PW.4 and thus
supports the case of the prosecution.
30. As seen above, PW.5 too has supported the case
of the prosecution. Not doubt he is not an eyewitness to the
incident, but his statement that he came to know about the
incident from his wife and that he went to the police Station
from there to the hospital, corroborates the evidence of PW.1
and PW.4 that by the time, they returned back to the police
station, PW-5 was already there.
The evidence of PW.5 that he is running a motor garage
on the front side of their house has remained undisputed and
undenied. The said evidence is further supported from the
evidence of PW.1 and PW.4.
31. The evidence of PW.1 and PW.4 shows that the
incident took place initially inside their house when the
accused barged into their house and it continued in a public
place i.e. outside their house since the accused dragged
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them outside of their house through the back door of the
house. Even PW.5 in his evidence has also stated that their
house has got even a back door also from which they can
access the road and that it is a public place.
32. Further, the evidence of PW.14 shows that the
scene of offence panchanama as per Ex.P-2 was drawn in his
presence. The said scene of offence panchanama at Ex.P-2,
the place where the accused barged into the house was a
RCC building which has got a garage and a residential
portion in it. It also shows that it has got access to a main
road at a distance of 34 feet from the room of the residence
of PW.1 and PW.4. Thus, it corroborates the evidence of
PW.1 and PW.4 that accused apart from barging into their
house, had dragged them outside their house through the
back door.
33. The scene of offence panchanama at Ex.P-6
which has been drawn by PW.9 also go to show that PW.5
has got a building wherein the first two rooms is using as
workshop and store room and the remaining is the residential
portion. The said building is shown to have two doors, one
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on the front side which is an entrance to the workshop and
one is on the backside giving an entrance to an open space.
From workshop to the residential portion also, there are
connecting doors. After the backside space on the southern
side, there is a kachcha road and on the front side, on the
eastern side also, there is State Highway No.93. Thus, the
said house has got two openings and those two openings
leads to two different roads which are public places. Thus,
the alleged incident which had began inside the house is
established to have continued and ended in a public place.
34. Thus, it is established that on 30.07.2012 at
1:30pm the accused on the pretext that PW.5 is going to
lodge a complaint alleging the theft of gas cylinder against
him, barged into the house of PW.1 and PW.4 and abused
them in filthy language taking the name of their caste and
also dragged them outside of their house on the backside
and in a public place, he continued his act of abusing them
and by pulling their saree, attempted to outrage their
modesty.
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35. The argument of the learned counsel for the
respondent was that, the non-examination of Wilson and also
the absence of external injury on the persons of PW.1 and
PW.4 also creates doubt in the case of the prosecution. To
that regard, it cannot be ignored of the fact that PW.6 no
doubt has stated about the presence of one Sri. Wilson also
along with him. However, it is to be noticed that PW.6
himself has supported the case of the prosecution, as such, if
the prosecution has decided not to examine the pillion rider
Wilson, who incidentally was also a charge-sheet witness, it
cannot be said that non-examination of said Wilson is fatal to
the case of the prosecution.
No doubt, as noticed above, the Doctor (PW.8) who
examined PW.1 and PW.4 has not noticed any external
injuries on the person of either PW.1 or PW.4. She had given
wound certificates as per Ex.P.4 and Ex.P-5 which also does
not mention about the presence of any external injuries,
rather, it specifically mentions that there were no external
injuries on either of them. However, the Doctor has noticed
the pain over left side of face and body in case of
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PW.4-Smt.Ratna and generalized body ache with
PW.1-Smt.Shivakka. Needless to say that, for a hurt, which
is an offence punishable under Section 323 of IPC, the
existence of external bodily injury is not mandatory. When
PW.1 and PW.4 have stated that they were assaulted by the
accused with his hands as well with his chappal (left foot
wear), it is not necessary that they should compulsorily have
external injuries.
Learned counsel for the respondent drawing the
attention of this Court to a portion of the evidence of PW.8 in
her cross-examination submitted that the said witness has
admitted a suggestion as true that, in case, if a person is
forcibly assaulted with M.O.1 there is all the possibility of a
mark being appeared on the chin and he sustaining injury.
No doubt, the Doctor has admitted the said suggestion as
true and also has admitted the suggestion as true that, in
case, if an ear stud is broken and separated by an assault,
there is possibility of the injury near the ear. However, it
cannot be ignored of the fact in the instant case that, neither
PW.1 nor PW.4 have stated that they were assaulted with
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M.O.1 with force by the accused. They have only stated that
the accused assaulted them with hand and his left foot wear.
They have not stated that the said assault was forceful. As
such, since the doctor has said, an forceful assault with
chappal may cause a mark, we cannot anticipate said mark
or injury in the case when it was a mere assault of simpliciter
by the accused's foot wear. The same reasoning applies even
for non presence of any external injury with the ear also.
Added to that, it also cannot be ignored of the fact that
the Doctor nowhere stated that in all such cases of even a
forceful assault, necessarily there should appear some
external injury, but has only stated that a possibility of injury
would be there. So mere possibility cannot be generalized as
necessarily there ought to be some external injury. As such,
the said argument of the learned counsel for the respondent
in that regard is not acceptable.
36. The incident in the instant case, is said to have
taken place on the date 30.07.2012 at about 1:30 pm
whereas the compliant at Ex.P-1 came to be registered only
on the next day i.e. on 31.07.2012 at about 7:00 pm. Thus,
Crl.A. No.100392/2017
there is a delay of more than a day in registering the
complaint. In that regard, PW.1 in her evidence has stated
that after the incident, herself and her daughter-in-
law(PW.4) went to the complainant Police Station in an
autorickshaw by getting the compliant written through one
Sri. Srikaanta Bidarolli. However, the Police sent them to the
hospital. After the medical treatment, when they returned to
the police station, the police, immediately, did not receive
their complaint, as such they returned to their home. It was
only on the next day, the police received their complaint. The
said evidence of PW.1 has not been specifically denied from
the accused's side in her cross-examination.
Similarly, PW.4 also has stated that immediately after
the incident, both herself and her mother-in-law went to the
complainant police station, however, the police first sent
them to the hospital from there when they returned to the
police station, her husband (PW.5) was in the police station.
The said evidence of PW.4 that immediately after the
incident, they went to the police station and that they were
sent to the hospital, has not been specifically denied in her
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cross-examination. The said evidence is further corroborated
by the evidence of PW.5, who also has stated that after
coming to know about the incident, when he went to the
complainant police station, his wife and mother had been to
the Government hospital for their treatment. After getting
them, when he went to the police station, the police made
them to sit for a long time and without even receiving the
complaint, sent them home stating that they would summon
the accused and enquire with him. It was only on the next
day at about 7:00pm since the accused did not come to the
police station, the police received the complaint by his
mother.
37. The evidence of PW.13-Head Constable of the
complainant Police Station also shows that he had stated in
his examination-in-chef itself that both PW.1 and PW.4 came
to his Police Station and appeared before him on 30.07.2012
at about 2:30pm complaining that Kishor Vajra Naik (the
accused) entered their house, assaulted them with a chappal
and also abused them by taking the name of their caste. The
said police official further stated that after giving the history of
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the incident, they proceeded to the hospital, as such, he
wrote a requisition to the hospital and sent them along with
his staff to the hospital. The witness has further stated that
those two persons did not return from the hospital
immediately. However, the son of the complainant Narayana
came to the police station in the evening and stated that
since the accused was a close friend of him, he would try to
settle the matter with him, otherwise he would come and
lodge the complaint. Accordingly, on the next day when the
Sub-Inspector was in the Station, the complainant came and
lodged the complaint. Though denial suggestion was made
about PW.1 and PW.4 going to the police station on
30.07.2021 at 2:30 pm, to this witness in his cross-
examination but he has not admitted the same as true. On
the other hand, the evidence of PW.8, the Doctor also
corroborates the evidence of PW-13 since the said Doctor
also stated that on 30.07.2012 at about 3:00 pm it was the
complainant police who had brought PW.1 and PW.4 before
her with the history of an assault. Thus, the evidence of
PW.1, PW.4 and PW.5 makes it very clear that immediately
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after the incident, they had been to the police station and it
is through the police only they were sent to the hospital and
after returning from the hospital, according to PW.1, PW.4
and PW.5 the police did not receive their complaint on the
said day. As such, on the next day, they went to the police
station again and lodge the complaint. Therefore, the
version of PW.13 that PW.5 though appeared in the evening,
he himself took time by a day to lodge a complaint appears
to be incorrect and not true. On the other hand, the
evidence of PWs.1, 4 and 5 that the police themselves did
not receive the compliant on the said day stating that they
would summon the accused and enquire with him appears to
be true. As such, there is delay of more than a day in filing
the complaint. Since the said delay has been properly
explained and it has caused no prejudce to the interest of the
accused, the said delay itself would not weaken the case of
the prosecution.
38. The evidence of PW.17 who is the investigating
Officer that she visited the spot and drew a scene of offence
panchanama as per Ex.P-2 and seized M.Os.1 to 3 in the spot
Crl.A. No.100392/2017
and she secured the house extract as per Ex.P-7 from the
Panchayat Development Officer and also the wound
certificate as per Exs.P.4 and P.5 from the Doctor and the
caste certificate of PW.1, PW.4 and the accused as per
Exs.P-11, P-12 and P-13 have all been corroborated by the
evidence of the witnesses as observed above.
39. In addition to that both PW.1 and PW.4 have
stated that the accused while assaulting them, has outraged
the modesty by pulling their saree and he also torn the
blouse worn by PW.4. In that regard they have identified the
torn saree and the blouse which were seized by the
Investigating Officer while drawing the scene of offence
panchanama as per Ex.P-2. They have also stated that in the
incident the accused who had used his left leg foot wear
(chappal) had also fallen in the spot and the same was seized
by the police under the same panchanama. Both PW.1 and
PW.4 as well PW.14 have identified M.Os.1 to 3 in the Court.
In addition to the above, the Investigating Officer, i.e.
PW-17 in her evidence has stated that the accused when he
was produced before her was arrested by her and the said
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accused has given his voluntary statement before her as per
Ex.P-15 in which the accused has produced the missing pair
of the right foot wear chappal which she had seized by
drawing a mahazar as per Ex.P-3 and she has identified the
said chappal at M.O.4. The said evidence that M.O.4 is a
right foot wear forming the part of a pair of chappal along
with M.O.1 is not in dispute. Thus, when accused has
produced stating that it is his another chappal which is at
M.O.4 and PW.1 and PW.4 have identified M.O.1 as the left
leg chappal (foot wear of the accused) it further corroborates
the evidence of PW.1 and PW.4 that the chappal at M.O.1
was the chappal of the accused and that they were assaulted
with the said chappal by the accused. Thus, the act of the
accused committing house trespass with a criminal intention
to abuse and threaten the inmates in the house on
30.07.2012 at about 1:30pm and also assaulting PW.1 and
PW.4 with his hands as well with M.O.1 has stood proved
beyond reasonable doubt. Thus, the offence committed by
the accused which is punishable under Sections 448, 323,
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355 and 506 of IPC has stood proved beyond reasonable
doubt.
Similarly, the evidence of PW.1, PW.4, PW.6 and PW.7
has further established beyond reasonable doubt that the
accused apart from assaulting and abusing PW.1 and PW.4
inside their house also continued his act by dragging PW.1
and PW.4 outside their house and in a public place abusing
PW.1 and PW.4 in abusive language taking the name of their
caste knowing fully well that PW.1, PW.4 and PW.5 were
belonging to scheduled caste. PW.1 and PW.4 have stated
that they got insulted by the said act of the accused which
was made in public and a very act of the accused who is
admittedly a public servant, as such, was aware of the
consequences, makes it clear that knowing fully well that his
act would result in insulting PW.1 and PW.4, he committed
the act of abusing them in filthy language in a public place
and also assaulted them and pulled their saree. Thus, it is
also established beyond reasonable doubt that the accused
has committed an offence punishable under Section 3(1)(x)
and 3(1)(xi) of SC and ST Act(prior to amendment).
Crl.A. No.100392/2017
However, it is also the case of the prosecution that the
accused has committed an offence punishable under Sections
504 and 427 of IPC.
In order to constitute an offence punishable under
Section 504 of IPC, apart from the accused committing an
intentional insult upon the victim, his act should have been
given provocation to that person causing him to break the
public peace or to commit any other offence.
40. In the instant case, the evidence of PW.1 and
PW.4, no doubt, has established that the accused has
intentionally insulted them, but their evidence does not go to
show that by such an act of the intentional insult committed
by the accused, they were given provocation causing them to
break the public peace or to commit any other offence. Thus,
one of the essential ingredients of Section 504 of IPC, the
prosecution could not able to prove the offence against the
accused punishable under Section 504 of IPC.
41. The accused was also charged with an offence
punishable under Section 427 of IPC. In order to prove the
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offence punishable under Section 427 of IPC, it has to be
established that the accused has committed mischief and
thereby has caused loss or damage to the amount of Rs.50/-
or upwards.
42. No doubt, in the instant case, PW.1 and PW.4
have stated that the accused after trespassing into their
house, apart from abusing them in filthy language and
assaulting them, had also damaged the utility and household
articles. However, except their oral statement there is
nothing on record to show that such a damage was caused
by the accused to the domestic utility articles and the same
has resulted in a loss or damage to an amount of Rs.50/- or
upwards. Had there been any such damage to any of the
utility articles, necessarily and definitely, the Investigating
Officer would have collected those damaged articles during
the drawing up of scene of offence panahnama at Ex.P-2.
When they noticed the chappal belonging to the accused in
the spot and collected the torn saree and blouse and got
them exhibited as M.O.1, M.O.2 and M.O.3 nothing was
prevented for the same Investigating Officer to seize the
Crl.A. No.100392/2017
alleged damaged other articles, if any, in the spot and
produced them in the Court. As such, mere say of PW.1 and
PW.4 that the accused damaged the utility articles since has
not been proved, though it could have been proved by
producing the material evidence, it cannot be held that the
accused has caused damage and committed an offence
punishable under Section 427 of IPC.
43. Thus, when the prosecution has proved the guilt
of the accused for the offences punishable under Sections
448, 323, 355 and 506 of IPC and for the offence punishable
under Section 3(1)(x) and 3(1)(xi) of SC and ST Act, the
Special Court without appreciating the evidence placed
before it, in its proper perspective, has drawn its own
conclusion by irrationally reasoning that, the pendency of the
civil suit between the parties, creates a doubt in the case of
the prosecution, as such, the complaint filed against the
accused was a false complaint. Further, its observation that
the complainant at one place in her cross-examination has
said that she has not lodged the complaint but her son has
lodged the complaint whereas her son who was examined as
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PW.5 has stated that it was her mother (PW.1) has lodged
the complaint also creates a doubt in the case of the
prosecution, is not a convincing reason. No doubt PW.1 at
one place has stated that it was her son who has lodged the
complaint but the analysis made above go to show that her
son was also present in the police station when PW.1 and
PW.4 returned from the hospital after obtaining the
treatment. Further, the evidence of PW.16 also goes to show
that it was PW.1, who lodged the complaint as per Ex.P-1.
As such, the Special Court has created a doubt on its own
and improperly accepted the said doubt which made it to
pronounce the judgment of acquittal giving the benefit of
doubt to the accused. Since the said reasoning of the
Special Court now appears to be not acceptable, on the
contrary since the prosecution, as analysed above, has
proven the alleged guilt of the accused except the offences
punishable under Section 504 and 427 of IPC, the judgment
of acquittal under appeal deserves to be set aside and the
accused deserves to be convicted for the offences punishable
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under Sections 448, 323, 355, 506 of IPC and under Section
3(1)(x) and 3(1)(xi) of SC & ST Act.
44. Accordingly, we allow the appeal in part. The
impugned judgment dated 04.07.2017 passed by the learned
Special Judge, Uttara Kannada, Karwar, in Special Case
No.18/2012 acquitting the accused for the offences
punishable under Sections 448, 504, 323, 355, 427 and 506 of IPC
and Section 3(1)(x) and 3(1)(xi) of SC & ST Act is set aside.
The accused(Kishore Vajra Naik) is convicted for the
offences punishable under Sections 448, 323, 355 and 506
(Part-I) of IPC and for the offence under Section 3(1)(x) and
3(1)(xi) of SC & ST Act.
The accused is acquitted for the offence punishable
under Section 504 and 427 of IPC.
45. Heard the submission of the learned counsel from
both side on the sentence.
46. Learned Additional State Public Prosecutor
submits that considering the fact that the accused being
himself a public servant and knowing the consequences of
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his alleged act since has committed the proven guilt,
deserves to be punished with a maximum sentence
awardable under the Section.
47. Learned counsel for respondent submits that the
accused is a public servant and the Court has opined that he
has committed the alleged offence, as such, considering the
family commitment of the accused and his standing in the
society, the minimum punishment, preferably, in the form of
fine alone be ordered.
48. It is the sentencing policy that the sentence
ordered should not be either exorbitant or for name sake for
the proven guilt. It must be proportionate to the guilt for
which the accused is found guilty of.
49. In the instant case, as analysed above, the
accused is, admittedly a public servant, working as a Second
Division Assistant in an establishment. It is brought to our
notice that there are no antecedents of any criminal act or
case upon the accused. As per the Section 19 of the SC & ST
Act, the provisions of Section 360 of Cr.P.C. and Probation of
Offenders Act, is not applicable to the guilty for an offence
Crl.A. No.100392/2017
punishable under SC & ST Act. Considering all these aspects,
we proceed to pass the following order on the sentence:
ORDER
(i) The accused (Kishore Vajra Naik) who is
convicted for the offence punishable under
Section 323 of IPC is sentenced to pay a fine of
`750/-, in default, to undergo a simple
imprisonment for fifteen days.
(ii) For the offence punishable under Section 355 of
IPC, the accused shall pay a fine of `2,000/-, in
default, to undergo a simple imprisonment for
three months.
(iii) For the offence punishable under Section 448 of
IPC, the accused shall pay a fine of `750/-, in
default, to undergo a simple imprisonment for
fifteen days.
(iv) For the offence punishable under Section
506(Part-I) of IPC, the accused shall pay a fine
of `2,000/-, in default to undergo simple
imprisonment for three months.
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(v) For the offence punishable under Section
3(1)(x) of SC & ST Act, the accused shall
undergo a simple imprisonment for a period of
six months and to pay a fine of `4,000/-, in
default to undergo simple imprisonment for four
months.
(vi) For the offence punishable under Section
3(1)(xi) of SC ST Act, the accused shall undergo
simple imprisonment for six months and pay a
fine of `4,000/-, in default, to undergo simple
imprisonment for four months.
All the sentences shall run concurrently. The
respondent/accused shall surrender before the Special Court
within fifteen days from the expiry of the appeal period.
As requested by the learned counsel for respondent,
the implementation of sentence is deferred from today till the
period of appeal/SLP expires.
A free copy of the judgment be furnished to the
accused by the registry immediately.
Crl.A. No.100392/2017
The registry to transmit a copy of this judgment along
with Special Court records to the concerned Court for their
needful in the matter in accordance with law without delay.
Sd/-
JUDGE
Sd/-
JUDGE
kmv
