Ravikanth S/O Baburao Shellagi vs The State Of Karnataka
2022 Latest Caselaw 1289 Kant

                           1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 31 ST DAY OF JANUARY, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200001/2016


BETWEEN:

RAVIKANTH S/O BABURAO SHELLAGI
AGE: 24 YEARS, OCC: COOLIE,
R/O RATKAL VILLAGE, TALUKA CHINCHOLI,
DIST. KALABURAGI.
                                         ... APPELLANT

(BY SRI CHAITANYA KUMAR CHANDRIKI, ADVOCATE)


AND:

THE STATE OF KARNATAKA
THROUGH RATKAL P.S.
TALUKA CHINCHOLI,
DIST: KALABURAGI
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
                                       ... RESPONDENT

(BY SRI GURURAJ V. HASILKAR, ADVOCATE)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CRIMINAL PROCEDURE CODE PRAYING TO
SET ASIDE THE JUDGMENT DATED 15.12.2015 PASSED BY
                                   2




THE II ADDL. SESSIONS JUDGE, KALABURAGI, IN SPL.
CASE       (SC/ST)    NO.3/2015       AND    CONSEQUENTLY       BE
PLEASED TO ACQUIT THE APPELLANT FOR THE ALLEGED
OFFENCES.


       THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Heard the learned counsel for the appellant and the

learned High Court Government Pleader for the respondent

- State.

2. The present appeal is filed by the accused, who

has suffered an order of conviction by the II Additional

Sessions Judge, Kalaburagi in Special Case (SC/ST)

No.3/2015 for the offences punishable under Section 448,

354, 324 of the Indian Penal Code, 1860 (for short 'IPC')

and under Section 3(1)(x) and (xi) of the Scheduled Caste

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

[for short SC/ST (PA)Act] and sentenced as under:

  Offences      Imprisonment         Fine         Default
                                                 sentence
Section 448 Six      months Rs.1,000/-        Simple
of IPC      imprisonment                      imprisonment
                                              for 15 days
Section 354 Six      months Rs.1,000/-        Simple
of IPC      imprisonment                      imprisonment
                                              for 15 days
Section 324 Six      months Rs.2,000/-        Simple
of IPC      imprisonment                      imprisonment
                                              for one month
Section    Six      months Rs.2000/-          Simple
3(1)(xi)of imprisonment                       imprisonment
SC/St (PA)                                    for one month
Act

3. Brief facts of the case are as under:

One Sangeeta lodged a complaint on 13.08.2014

contending that she is a widow belonging to Schedule

Caste Community and she has three children and two

children are with her and her first daughter is staying with

her mother. The accused who belonged to Lingayat Caste,

has been harassing her physically and mentally since two

years of lodging of the complaint and in furtherance

thereof, on 12.08.2014 at about 9.00 p.m., he illegally

trespassed into the house and harassed her physically and

mentally. Thereafter, he has confined her in a room and

assaulted with a wooden piece and she has sustained

injuries. It is also contended that he has threatened her

not to reveal the same to anybody and in case of

revelation of the said incident, he would take away her life.

Based on the said complaint, Ratkal police registered a

case in Crime No.84/2014 for the offences punishable

under Sections 448, 342, 354, 324 and 506 of IPC and

under Section 3(1)(xi) of SC/ST (PA) Act. Thereafter, the

police conducted the investigation and inter alia recorded

the further statement of the complainant, wherein, it has

been stated that in the room, the accused also abused her

by taking out her caste name. After thorough

investigation, the police filed the charge sheet against the

accused for the aforesaid offences including Section

3(1)(x) of the SC/ST (PA) Act.

4. The learned Special Judge on receipt of the

charge sheet, took cognizance of the aforesaid offences

and secured the presence of the accused persons.

Thereafter, following charges were framed:

      "Firstly, on    12.8.2014 at about 9.00
p.m., at Ratkal village, you criminally          tress-

passed into the house of CW-1 Sangeeta complainant with the intention of committing the offence and thereby committed an offence U/Sec.448 of I.P.C and within my cognizance.

Secondly, that on the above said date, time and place, you used criminal force on her and tried to outrage her modesty and thereby committed an offence punishable U/Sec.354 of I.P.C and within my cognizance.

Thirdly, that on the above said date, time and place you assaulted complainant with the rolling pin on her hand, lips, backside and all side of body and caused her internal injuries thereby committed an offence punishable U/s.324 of I.P.C and within my cognizance.

Fourthly, on the above said date, time and place you knowing well that the complainant is the member of the Schedule Caste you intentionally insulted her by abusing her in a filthy language taking her caste in order to humiliate her in the public

view and thereby committed an offence punishable U/s.3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act-1989, and within my cognizance.

Fifthly, on the above said date, time and place you knowing well that the complainant is a member of the Schedule Caste used criminal force on her with intent to outrage her modesty and thereby committed an offence punishable U/s.3(1)(xi) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act-1989, and within my cognizance."

The accused pleaded not guilty and therefore, trial

was held.

5. In order to prove the case of the prosecution,

in all ten witnesses have been examined as PWs.1 to 10

and the prosecution relied on nine documentary evidence,

which were exhibited and marked as Exs.P1 to P9. The

wooden stick, which was used for preparing

Chapati/Lattanige has been marked as MO.1.

6. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C. came to be recorded, wherein, the accused denied

all the incriminatory materials that were put to him.

However, the accused did not place his version on record

by examining himself or filing any written submission as is

contemplated under Section 313(5) of Cr.P.C.

7. Thereafter, the learned Special Judge heard

the parties in detail and after considering the oral and

documentary evidence on record, passed an order of

conviction convicting the accused for the alleged offences

as referred to supra. Being aggrieved by the same,

accused/appellant has preferred this appeal.

8. In the appeal, following grounds have been

raised.

¾ That the testimony of PW- 1 is not convincing And

clinching to accept to connect the appellant for the

charges leveled against him.

¾ That the learned Sessions Judge found the

appellant guilty on the basis of uncorroborated

evidence of pp PW- -1.

¾ That there is delay of one day in lodging the

complaint and the same has not been explained by

the prosecution and complainant the time

consumed by the PWW-1 for PW-1 for lodging the

complaint has been used for concocting the story.

¾ That either the prosecution or the police examined

the immediate neighbours, who could have said the

prosecution story.

¾ That the Doctor's evidence and Ex.P-5 thought

certificate is not corroborating with the evidence of

PW-1.

¾ That the allegations made in the complaint i.e. Ex.

P-1 do not attract provisions of SC / ST (PA) Act.

¾ That the evidence of PW-1 is lacking in constituting

offence punishable under section 354 IPC. merely

because pw-1 Sangeeta belongs to schedule caste

cannot be attracted unless shown that offence has

been Section 3(1)(X1) committed with one

intention to outrage the modesty of a woman

belongs to Schedule caste."

9. Reiterating the above grounds, the learned

counsel for the appellant vehemently contended that in the

complaint averments, there is no ingredients to attract the

offences under the provisions of the SC/ST (PA) Act. In

order to aggravate the incident, the further statement has

been recorded, whereby, the accused/appellant has been

charged with for the offences punishable under

Section 3(1)(x) and (xi) of the SC/ST (PA) Act.

10. He further argued that the material evidence

on record would not attract any of the offences alleged

against the appellant and sought for allowing the appeal.

11. Per contra, the learned High Court Government

Pleader supports the impugned judgment and contended

that the accused and complainant are known to each

other. He further contended that the appellant was having

the knowledge that the complainant/PW.1 belongs to

Schedule Caste community and the accused being the

member of Lingayat community, the action of the

appellant is to be presumed that he is liable to be punished

for the offences under the provisions of the SC/ST (PA)

Act.

12. He also contended that the material evidence

on record would indicate that on the day of the incident

i.e., on 12.08.2014 at about 9.00 p.m. the accused taking

advantage of the social status of the complainant/PW.1,

who is a widow, illegally trespassed into the house and

behaved badly with her resulting in commission of the

aforesaid offences and the complainant being helpless

lady, has lodged the complaint after discussing the matter

with her well wishers on 13.08.2014 and therefore, the

prosecution case cannot be doubted and material evidence

on record in the form of oral testimony of PW.5, who is the

doctor, who examined the complainant and issued the

wound certificate vide Ex.P5 would corroborate the oral

testimony of PW.1 and thus, sought for dismissal of the

appeal.

13. In view of the rival contentions of the parties,

following points would arise for consideration:

1. Whether the prosecution has successfully established the offences alleged against the accused/appellant beyond all reasonable doubt?

2. Whether the impugned judgment is suffering from legal infirmity, perversity and thus calls for interference?

3. If so, what order?

14. In the case on hand, in order to prove the case

of the prosecution, the prosecution mainly relied on the

oral testimony of the complainant, who is examined as

PW.1. She deposed before the Court in line with the

complaint averments and the further statement recorded

by the investigation officer. As could be seen from the

complaint averments, as referred to supra, the incident

has occurred on 12.08.2014 at about 9.00 p.m. As per the

complaint averments, the accused has illegally trespassed

into the house of the complainant and misbehaved with

her and also assaulted her with MO.1. These aspects of

the matter have been deposed by PW.1 with graphic

details. In her cross examination, nothing has been

elicited so as to disbelieve her testimony. The suggestion

made to her that the accused/appellant did not tried to

touch body parts, is denied by the witness. The fact

remains that she was also confined in a room for some

time.

15. When all these factors viewed cumulatively,

the appellant entered into the house of widow that too at

about 9.00 p.m. without there being any permission from

PW.1 constitute the offence of trespass. Further, his

misbehavior with PW.1 will also prove the fact that illegally

entered the house of PW.1 with malafide intention and he

further committed illegal acts.

16. PW.2 is Kanthamma who is working in Primary

Health Care Centre as a Nurse and she is residing in the

house of Saidappa as a tenant. However, she did not

support the case of the prosecution in toto. So also Bablu

who has heard the story from the complainant. Hussainabi

is the owner of the house where the complainant is

residing she also did not support the case of the

prosecution. Dr.Suresh is examined as PW.5. He deposed

about examination of the complainant at about 6.30 p.m.

on 13.08.2014 and noted the injuries found on the body of

PW.1 and issued the wound certificate as per Ex.P.5.

17. He denies the suggestion in his cross-

examination that if somebody is assaulted with MO.1 the

injuries noted by him in Ex.P.5 could not be caused. He

denied the suggestion that the injuries noted by him in

Ex.P.5 could be caused otherwise than by assault with

MO.1 by falling on a hard surface. He denied having given

the false certificate vide Ex.P.5

18. Panch witness to spot mahazar Kalyanrao is

examined as PW.6, he also did not support the case of the

prosecution. Though he had been treated as hostile

witness no useful material is elicited which would help the

prosecution case. PW.7 is Dy.S.P who conducted the

investigation filed the charge sheet. PW.8 is the Police

Constable who is an FIR carrier. PW.9 is the PSI who

registered the case at the first instance and handed over

the further investigation to PW.7. PW.10 is a co-pancha for

Ex.P.6 mahazar who also did not support the case of the

prosecution. The above evidence on record is sought to be

re-appreciated by the learned counsel for the appellant. As

could be seen from the above evidence on record, the

prosecution case is solely dependent on the oral testimony

of PW.1 which has been corroborated by the oral evidence

of PW.6 who is the Doctor who issued Ex.P.5 wound

certificate.

19. In a matter of this nature, oral testimony of

the victim lady assumes a greater importance. No lady

would unnecessarily make an allegation against an

accused. Further, there is no material on record to hold

that there was a previous ill-will or animosity or enmity

between PW.1 and accused so as to falsely implicate the

accused in the case. Under such circumstances and when

there is no material placed on record by the accused as to

why he has been falsely implicated in the case either at

the time of recording the accused statement or by placing

any written submission as is contemplated under

Section 313(5) of Cr.P.C, this court has no hesitation

whatsoever in accepting the oral testimony of PW.1.

However, having said thus, complaint averments do not

indicate any ingredient whatsoever muchless all

ingredients to attract the offence under Section 3(x) or

3(xi) of the SC/ST (PA) Act. As could be seen from the

evidence of PW.1 and also when the alleged incident took

place, it is clear that the accused said to have abused the

complainant by taking out her caste name. Except the

accused and the victim none else were there. Moreover, it

was in a confined area and the incident has not taken

place in the public so as to lower the dignity of a person

belonged to a scheduled caste/scheduled tribe community

in the public view is a sine qua non to attract the offence

under Section 3(x) of SC/ST (PA) Act. In the case on hand,

admittedly, nobody witnessed the incident. Therefore, the

prosecution has not been able to successfully establish the

ingredients to attract the offence punishable under

Sections 3(1)(x) and 3(xi) of SC/ST (PA) Act.

20. However, having regard to the oral testimony

of PW.1 coupled with the corroboratory evidence in the

form of oral testimony of PW.5 and wound certificate at

Ex.P.5, the finding recorded by the learned trial Judge that

accused has committed the offence punishable under

Sections 448, 354 and 324 of IPC is to be maintained. The

material on record has been rightly appreciated by the trial

Judge insofar as these offences are concerned. In view of

the foregoing discussion, this court is of the considered

opinion that the prosecution is successful in establishing

the offences alleged against the accused for the offences

punishable under Sections 448, 354 and 324 of IPC but

failed to produce necessary evidence on record to attract

the offence punishable under Sections 3(1)(x) and 3(xi) of

SC/ST (PA) Act. Accordingly point Nos.1 and 2 are

answered partly in the affirmative.

Regarding point No.3 :

21. In view of this court recording a finding on

point Nos.1 and 2 in partly in affirmative, the sentence

ordered by the trial Judge needs reconsideration. The

offences punishable under Sections 448, 354 and 324 of

IPC are not compulsorily punished with an order of

imprisonment. Since there is no criminal antecedents

alleged by the prosecution and accused being the first time

offender, imposing fine alone and taking note of the fact

that the accused was in custody for two days, enhancing

the fine amount as compensation to the victim would meet

the ends of justice. Accordingly, pass the following

ORDER

The appeal is allowed in part.

The accused is acquitted for the offences punishable

under Sections 3(1)(x) and 3(xi) of the SC/ST (PA) Act,

1989 and conviction of the accused for the offences

punishable under Sections 448, 354 and 324 of IPC is

hereby maintained.

The period of custody of two days spent by the

accused is treated as period of imprisonment and ordered

to pay fine of `60,000/- for the aforesaid offences.

In the event of failure to pay the fine amount, the

accused shall undergo simple imprisonment for a period of

one year.

Out of the fine amount, a sum of `50,000/- is

ordered to be paid as compensation to PW.1 and balance

of `10,000/- shall be appropriated by the State towards

the defraying expenses.

Accused/appellant is granted time to pay the fine

amount till 28.02.2022.

Office is directed to return the trial court records

along with a copy of this judgment forthwith.

SD/-

JUDGE

Srt/sn