The State Of Karnataka vs Mabusab S/O. Miyyasab Hosamani
2022 Latest Caselaw 4852 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 16TH DAY OF MARCH, 2022

                         PRESENT

     THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                           AND

          THE HON'BLE MR. JUSTICE S. RACHAIAH

            CRIMINAL APPEAL NO.100142/2018


BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY
THE POLICE SUB-INSPECTOR,
GADAG RURAL POLICE STATION,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.

                                              .. APPELLANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND:

1.      MABUSAB S/O. MIYYASAB HOSAMANI,
        AGED 34 YEARS, OCC: MASON,

2.      HUSSAINSAB S/O. SHABUDDIN KUNDAGOL,
        AGED 45 YEARS, OCC: MASON,

3.      MABUSAB MUKTUMSAB HARLAPUR,
        AGED 28 YEARS, OCC: COOLIE,

4.      BABUSAB HASANSAB BUVAJI,
                                          Crl.A. No.100142/2018


                            2


     AGED 40 YEARS, OCC: WATERMAN WORK,

5.   ANWARSAB ALLASAB BUVAJI,
     AGED 25 YEARS, OCC: COOLIE,

6.   RASULSAB CHAMANSAB SAIDAPUR,
     AGED 24 YEARS, OCC: STUDENT,

7.   ARIF BABUSAB BUVAJI,
     AGED 22 YEARS, OCC: MASON.

8.   MABUSAB FAKRUSAB HIRENAIKAR,
     AGED 32 YEARS, OCC: MASON,
     ALL ARE R/O. MALLASAMUDRA,
     TQ. GADAG.

9.   SMT. DURGAVVA W/O. BASAVARAJ BALLARI,
     AGE MAJOR, OCC: HOUSEWIFE,
     R/O. MALLASAMUDRA, TQ. AND DIST. GADAG.

                                           .. RESPONDENTS

(SRI. SHARAD M. PATIL, ADVOCATE FOR R1, R2 AND R4;
SRI. NEELENDRA D. GUNDE, ADVOCATE FOR R3)

      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 JUDGMENT AND ORDER OF ACQUITTAL DATED
26.08.2017 PASSED BY THE PRL. DISTRICT AND SESSIONS
JUDGE, GADAG, IN SPL. SC/ST NO.5/2013 TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 326, 504, 506 READ WITH
SECTION 149 OF IPC AND SECTION 3(1) (x) AND 3(2) (v) OF
SC/ST (POA) ACT, 1989 R/W. SECTION 149 OF IPC.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL    HEARING/VIDEO   CONFERNCING HEARING AND
RESERVED ON 14.02.2022 AT DHARWAD BENCH, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT BEFORE THE PRINCIPAL
BENCH AT BENGALURU, THIS DAY, DR. H.B.PRABHAKARA
SASTRY, J., DELIVERED THE FOLLOWING:
                                               Crl.A. No.100142/2018


                               3


                           JUDGMENT

The present appellant as the State/complainant had

initiated a criminal proceeding against the present

respondents arraigning them as accused for the offence

punishable under Sections 143, 147, 148, 323, 324, 326,

504, 506 read with Section 149 of the Indian Penal Code

(hereinafter for brevity referred to as 'IPC') and Sections

3(1)(x) and 3(2)(v) of Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for

brevity referred to as 'SC & ST Act') in Special SC/ST

No.5/2013, in the Court of the Principal District and Sessions

Judge, Gadag, (hereinafter for brevity referred to as 'the

Special Court'). After the trial, the accused were acquitted of

the alleged offence. Seeking setting aside of the impugned

judgment dated 26.08.2017 and for conviction of the

accused, 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.').

Crl.A. No.100142/2018

2. The summary of the case of the prosecution is

that, one Smt. Durgavva Basavaraj Ballari (C.W.1/P.W.1)

lodged a complaint with the complainant/appellant police

station alleging that, there was a dispute between

C.W.8/P.W.6 Hanamantappa Marthandappa Shirund and

accused No.1 Mabusab Hosamani, in respect of construction

of a compound wall in between their properties. The elders of

both the communities had attempted for a compromise by

holding panchayat. In that regard being angry, all the

accused on 27.12.2012 at about 11.00 a.m. while her

husband C.W.4/P.W.2 Basavaraj Ramanna Ballari along with

C.W.7/P.W.5 Durgappa Hanamantappa Bagalkoti was coming

on a motorcycle on the public road near Mallasamudra tank,

within the limits of the complainant's police station, all the

accused forming an unlawful assembly with the common

object of causing hurt and assaulting them came armed with

jungle sticks, attacked them and assaulted them due to

which C.W.4/P.W.2 Basavaraj sustained grievous head

injury. The other persons i.e. Suresh Yallappa Gudi (P.W.4),

Nagappa Mareppa Sureban (P.W.3), rushed to the spot to Crl.A. No.100142/2018

rescue the assaulted and resolve the dispute. However, the

accused assaulted P.W.2 and abused P.W.2 and P.W.5 in

filthy language by taking the name of their caste and also

threatened them to their lives. The accused also assaulted

the other persons who rushed to the rescue of P.W.2 and

P.W.5, due to which those other people were also sustained

injuries. The complainant has further stated that, due to the

assault her husband Basavaraj Ballary sustained fracture

injuries and was hospitalized for more than a month. He was

taken care of by her (the complainant). The elders in their

village had tried to settle the matter inter se. The accused

was told to bear the expenses of the treatment of the

injured. Though the accused had agreed for compromising,

but it did not materialise, as such, at the advise of the elders

and the leaders in the community, she decided to lodge a

complaint. With this, she requested the police to take

appropriate action against the accused. The said complaint

was registered in the complainant's station Crime

No.35/2013 against 06 accused for the offences punishable

under Sections 506, 341, 504, 143, 147, 148, 149, 323, 326 Crl.A. No.100142/2018

of IPC and under Sections 3(1)(x) and 3(2)(v) of SC & ST

Act. After completion of the investigation, the police filed

charge-sheet against 08 accused for the offences punishable

under Sections 143, 147, 148, 341, 323, 324, 326, 504, 506

read with Section 149 of IPC and for the offences punishable

under Sections 3(1)(x) and 3(2)(v) of SC & ST Act.

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 sixteen witnesses

from PW.1 to PW.16 and got marked eleven documents from

Exs.P.1 to P.11 and material objects M.Os.1 to 3. Statement

of the accused under Section 313 of Criminal Procedure Code

were 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 Sessions

Judge by his impugned judgment dated 26.08.2017 acquitted

the accused for the offence charged against them.

Crl.A. No.100142/2018

5. The respondents/accused are being represented

by their respective counsels.

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 27.12.2012 at about 11.00 a.m. on a public road near the Mallasamudra tank, within the limits of complainant's police station, the accused were the members of an unlawful assembly the common object of which was to cause hurt and grievous hurt using dangerous weapons, and to intentionally insult and criminally intimidate C.W.4, C.W.7, knowing fully well that C.W.4 was belonging to Schedule Caste i.e. Bhovi (Waddar) caste and thereby the accused have committed the offence punishable under Section 143 of IPC?

ii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused Nos.1 to 8 being the members of unlawful assembly and in prosecution of common object of such an assembly committed the offence of rioting and thereby have committed an Crl.A. No.100142/2018

offence punishable under Section 147 of IPC?

iii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of common object of such assembly, were armed with deadly weapons like clubs and thereby have committed an offence punishable under Section 148 of IPC?

iv) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of common object of such assembly, voluntarily caused hurt to C.W.7 Durgappa, C.W.4 Basavaraj, C.W.5 Nagappa and C.W.6 Suresh and thereby have committed an offence punishable under Section 323 read with Section 149 of IPC?

v) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of common object of such assembly assaulted and voluntarily caused hurt to C.W.7 Durgappa, C.W.4 Basavaraj, C.W.5 Nagappa and C.W.6 Suresh by using clubs which was a dangers weapon and in a dangerous manner and thereby have committed an offence punishable under Section 324 read with Section 149 of IPC?

vi) Whether the prosecution has proved beyond reasonable doubt that on the Crl.A. No.100142/2018

date, time and place mentioned above, the accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of common object of such assembly, voluntarily caused grievous hurt using dangerous weapon like club to C.W.4 to C.W.7 and thereby have committed an offence punishable under Section 326 read with Section 149 of IPC?

vii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of common object of such assembly, intentionally insulted C.W.4 to C.W.7 by using abusive words provoking them to cause breach of public piece and thereby committed an offence punishable under Section 504 read with Section 149 of IPC?

viii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of a common object of such assembly, caused criminal intimidation to C.W.4 to C.W.7 by threatening them to their lives and thus, have committed an offence punishable under Section 506 read with Section 149 of IPC?

ix) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused being the members of an unlawful assembly and in prosecution of common object to such an assembly and also knowing fully well that C.W.4 to Crl.A. No.100142/2018

C.W.7 were belonging to Hindu Bhovi (Waddar) Caste, which is a scheduled caste and with an intention to insult them and to humiliate them, abused them and insulted them by taking the name of their caste and thereby have committed an offence punishable under Section 3(1)(x) of SC & ST Act, read with Section 149 of IPC?

x) Whether the prosecution has proved beyond reasonable doubt that, on the date, time and place mentioned above, the accused Nos.1 to 8 being the members of an unlawful assembly and in prosecution of the common objection of such an assembly committed the offence punishable with imprisonment for a period of 10 years or more against C.W.4 to C.W.7 on the ground that, C.W.4 to C.W.7 were the members of the Scheduled Caste and thereby have committed an offence punishable under Section 3(2)(v) of SC & ST Act, read with Section 149 of IPC?

xi) Whether the impugned Judgment warrants any interference at the hands of this Court?

9. Among the 16 witnesses examined by the

prosecution, P.W.1 (C.W.1) Durgavva Basavaraj Ballari is the

complainant, who is admittedly the wife of P.W.2 (C.W.9)

Basavaraj Ramanna Ballari. The said P.W.2 (C.W.9)

Basavaraj Ballari, P.W.3 (C.W.5) Nagappa Mareppa Sureban,

P.W.4 (C.W.6) Suresh Yallappa Gudi, P.W.5 (C.W.7) Crl.A. No.100142/2018

Durgappa Hanamantappa Bagalkoti were examined by the

prosecution showing them as the injured witnesses in the

incident.

10. Learned counsel for the respondents in his

arguments, apart from various other points has submitted

that, since the present appeal is against the Judgment of

acquittal passed by the Special Court, the Court must be very

cautious in analysing the evidence placed by the prosecution

and the accused are entitled to the benefit of reasonable

doubt. In his support, he relied upon the Judgment of the

Hon'ble Apex Court, in the case of Muralidhar @ Gidda and

another Vs. State of Karnataka, reported in (2014) 5

SCC 730. He submitted that, in the said case, the Judgment

of an acquittal passed by the trial Court in a murder case was

reversed by the High Court in an appeal. Aggrieved by the

same, criminal appeal was filed before the Hon'ble Apex

Court. In paragraph No.12 of its Judgment, the Hon'ble Apex

Court was pleased to summarize the principles laid down by Crl.A. No.100142/2018

it in various cases regarding approach of the appellate Court

in the appeal against the acquittal on the following lines:

"Suffice it to say that this Court has consistently held that in dealing with the appeals against the acquittal, the appellate court must bear in mind the following:

(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial Court;

(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;

(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and Crl.A. No.100142/2018

(iv) Merely because the appellate court on re- appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."

The above principle will be born in mind in analysing the

evidence in the case on hand.

11. P.W.1 (C.W.1) Durgawwa Ballari, the

complainant in the case in her evidence has stated that, a

quarrel had taken place between C.W.8 (P.W.6) and the

accused. Two or three days prior to the incident in this case,

the community people from both side had compromised the

said matter. About the incident, the witness has stated that

on 27.12.2012 in the morning at about 11.00 a.m., the

incident has taken place. She was at home at that time.

C.W.11 Ratnavva Gudi went to her and stated that her (of

this witness) husband has been assaulted by Hussainsab

Kundagol (accused No.2) with a club and that her husband

has fallen down. Immediately, she rushed to the spot of the

offence, where she saw C.W.5 (P.W.3) Nagappa Sureban and Crl.A. No.100142/2018

C.W.6 (P.W.4) Suresh Gudi and her husband has sustained

injuries to his head. The accused had assaulted her husband

on his head and has injured him. She came to know that,

when the said Nagappa and Suresh rushed to rescue of her

husband they were also assaulted by the accused. Her

husband was shifted to the District Hospital, Gadag. She

further stated that, while her husband was in the hospital,

the community people of the accused requested them not to

lodge any police complaint stating that, they would bear the

hospital expenditure of the injured. Deciding that, it was

suffice if her husband is cured, she agreed to the same.

However, her husband was made to be taken to various

higher hospitals for which she was in need of `30,000/- to

meet the medical expenses, but the accused offered her only

a sum of `7,000/-. She also stated that, she belongs to Bhovi

(Waddar) community and accused belong to Muslim

community. The accused also abused them by taking the

name of their caste. This witness was subjected to a detailed

cross-examination, wherein she adhered to her original

version.

Crl.A. No.100142/2018

12. P.W.2 (C.W.4) Basavaraj Ballari who is the

husband of P.W.1 Durgavva, has stated that, there was a

dispute between the accused No.1 Mabusab Hosamani and

C.W.8 (P.W.6) Hanamantappa Shirund with respect to a

compound wall. The elders in the village had stopped the

erection of the compound wall thinking that, they could

resolve the said dispute by themselves. Accused No.1

Mabusab was erecting the compound wall. About the

incident, the witness has stated that on 27.12.2012 in the

morning at about 11.00 a.m., while himself joined by C.W.7

(P.W.5) Durgappa were coming from a place called Gadag to

his place on a motorcycle, he saw some people standing near

the lake (tank) of the village. Seeing them, while these

people were going slow on their motorcycle, the accused

No.1 and the other accused restrained them. Among them,

the accused No.1 assaulted with a wooden stick on the hands

of Durgappa (P.W.5). Due to which, the motorcycle fell on

the ground and both of them fell down. At the same time,

the accused No.2 Hussainsab assaulted him on the right side

of his head with a club, due to which he sustained bleeding Crl.A. No.100142/2018

injuries. All the accused ran away from the place. He also

stated that, all the accused abused them in filthy language

and also by taking the name of their caste as Waddar, they

abused them as son of Bitch of Wadda community. The

witness stated that, he fell unconscious in the spot and he

regained consciousness in the hospital. He was admitted as

an inpatient in the hospital for about 20 days. He also came

to know that C.W.5 (P.W.3) Nagappa Sureban and C.W.6

(P.W.4) Suresh Gudi were also assaulted by the accused in

the incident. The witness has identified a jungle wooden stick

in the Court stating that, it was with the same stick accused

No.2 assaulted him on his head. The said stick was marked

as M.O.1. The witness has also stated that, he has shown the

place of offence to the police who drew scene of offence

panchanama in his presence as per Ex.P.2. He also stated

that, the accused knew that he belongs to a Waddar

community.

13. P.W.3 (C.W.5) Nagappa Sureban and P.W.4

(C.W.6) Suresh Gudi in their evidence have stated that they Crl.A. No.100142/2018

know the accused, complainant, P.W.2 Basavaraj Ballari and

P.W.5 Durgappa Bagalkoti and they know each other. They

have stated that, with respect to an erection of a compound

wall, there was a dispute between C.W.8 (P.W.6)

Hanamantappa Shirund and accused No.1 Mabusab. These

people had informed them that, they would settle the matter

amicably. About two days thereafter, on 27.12.2012 while

P.W.2 Basavaraj Ballari and P.W.5 Durgappa were coming

near the tank in their village, the accused forming an

assembly and holding sticks in their hand, restrained

Basavaraj and Durgappa and assaulted them with the sticks,

due to which both Basavaraj and Durgappa fell to the

ground. Himself and Suresh who were also passing by saw

this and rushed to rescue of Basavaraj and Durgappa.

However, the accused assaulted them also. P.W.3 has stated

that, accused No.2 assaulted P.W.2 Basavaraj on his head.

When he rushed to the rescue of the said Basavaraj, accused

No.4 Babusab Buvaji assaulted him (this witness) with a stick

on his head. Accused also assaulted C.W.6 Suresh. P.W.4 has

also stated that, the accused Mabusab assaulted him on his Crl.A. No.100142/2018

head. P.W.3 also stated that, apart from assaulting them, the

accused also abused them in filthy language including taking

the name of their caste and these people were belonging to

Waddar community.

14. P.W.5 (C.W.7) Durgappa in his evidence followed

what P.W.3 and P.W.4 have stated in their examination-in-

chief. He has also stated that, at the time of the incident, he

was also returning to his place since there was a holiday for

his work. P.W.5 in his evidence has stated that, there was a

dispute between C.W.8 and accused No.1 with respect to

construction of a compound wall. The same was settled by

the elders by advising both side. However, on the date of

incident, while himself and C.W.4 Basavaraj were coming

from Gadag to their place on a motorcycle, accused No.2

Hussainsab restrained them and assaulted him on his right

forehand with a stick. He also assaulted C.W.4 Basavaraj on

his head with the same stick. With the said assault, both

these people fell down. C.W.5, C.W.6 and others came

running to the spot and attempted to rescue them. At that Crl.A. No.100142/2018

time, the accused Nos.3 and 4 assaulted C.W.5 and C.W.6

also with the sticks. All of them also abused them in filthy

language and also taking the name of their caste. However,

the people who had gathered shifted him to his house and

sent Basavaraj and other injured to the hospital. This witness

has identified the three sticks at M.O.1 to M.O.3, as the same

sticks with which the accused had assaulted them. All these

five witnesses were subjected to a detailed cross-

examination from the accused side, wherein these witnesses

adhered to their original version.

15. P.W.6 (C.W.8) Hanamantappa Shirund has stated

that, he has been allotted with a Janata Plot by the

Government. With respect to putting up a compound wall

around the said property, there was a dispute between

himself and the accused No.1. Two to three days prior to the

incident he has objected for the accused for erecting a

compound wall. He had also summoned the elders who too

had advised the accused not to put up the compound wall.

Two days thereafter, on 27.12.2012 at about 11.00 a.m., Crl.A. No.100142/2018

near the tank, the incident has taken place. On the said day,

he along with the others was near the Temple. C.W.4

Basavaraj and C.W.7 Durgappa were coming towards their

village, at that time, all the accused attacked them and

assaulted them with sticks. Both Durgappa and Basavaraj

sustained injuries in the said attack. Hearing the noise of the

incident, these people rushed to the spot by which time the

accused had also assaulted C.W.5 Nagappa and C.W.6

Suresh. The accused abused them in filthy language by

taking the name of their caste also. These people shifted

C.W.4, C.W.5 and C.W.6 to the District Hospital. The witness

stated that, himself joined by C.W.10 Dharmanna, C.W.9

Shankrappa and others resolved the quarrel. Thereafter, the

elders of Gadag (a District Head Quarter) had compromised

the matter. However, since the accused did not honour the

compromise, Smt. Durgavva Ballary who is the wife of

injured Basavaraj lodged the complaint. This witness also has

identified the sticks at M.O.1 to M.O.3 in the Court. This

witness also was subjected to a detailed cross-examination,

wherein, he adhered to his original version.

Crl.A. No.100142/2018

16. P.W.7 (C.W.9) Shankrappa Pujar in his evidence

has stated that, they had advised both P.W.6 Hanumantappa

and accused No.1 to get their matter solved after getting

their respective plots measured. He has stated that, on the

date of incident which was on 27.12.2012 hearing the noise

they proceeded to the spot. The accused assaulted

Basavaraj, Durgappa, Nagappa, Suresh near the tank of the

village. The accused throwing the sticks there itself and

abusing in filthy language and threatening them, left the

place. Eight days thereafter, the police had come the spot

and drew a scene of offence panchanama. Even this witness

also adhered to his original version in his cross-examination.

17. P.W.8 (C.W.15) Yankappa Asundi has stated that,

he is the scribe of the complaint at Ex.P.1 which he has

written at the dictation of complainant Smt. Durgavva

Ballary.

18. P.W.9 (C.W.13) Vidyadhar Doddamani has stated

that, he does not know the complainant and the accused and

that he has not advised either of them. Even after treating Crl.A. No.100142/2018

him as hostile, the prosecution could not get any support

from the said witness.

19. P.W.10 (C.W.16) Ashok Kanavi, the Assistant

Engineer, PWD has stated that at the request of the

Investigating Officer, he visited the scene of offence as

shown by the Police Constable and has drawn a sketch as per

Ex.P.4 and submitted it to the police.

20. P.W.11 (C.W.17) Dr. Rajendra Basarigidad has

stated that, on 27.12.2012 he examined P.W.2 Basavaraj Ballary

and noticed a lacerated wound over the right parietal region and

the extraordinary hematoma on the right parietal region. He

noticed a contusion over the right temporal region with fracture

of right temporal bone. He opined that the first injury was simple

in nature and the second was grievous in nature and the injury

might have been caused by a hard and blunt object. In that

regard, he has issued a wound certificate as per Ex.P.5.

The witness also stated that, on the same day he

examined P.W.3 Nagappa Sureban and noticed one lacerated

wound over the right parietal region measuring Crl.A. No.100142/2018

5x5 c.m. which according to him was simple in nature. In

that regard he has issued a wound certificate as per Ex.P.6.

The doctor has also stated that, on the same day he

has also examined P.W.4 Suresh Gudi and noticed a cut

lacerated wound over the right parietal region measuring 2x5

c.m. which according to him was a simple injury. In that

regard, he has issued a wound certificate as per Ex.P.7. In

his cross-examination this witness has stated that, none had

accompanied the injured and all the three injured had come

by themselves.

21. P.W.12 (C.W.18) Shoukat Ali Rajesab Shirakol

has stated that as a Grade-II Tahashildar of Gadag at the

relevant point of time, he had issued the caste certificate of

the injured and the accused as per Ex.P.8.

22. P.W.13 (C.W.19) Basavantrao Killedar has stated

about he registering the complaint at Ex.P.1 in their station

Crime No.35/2013 and submitting first information report to

the Court.

Crl.A. No.100142/2018

23. P.W.14 (C.W.20) Veerappa Kumbar has stated

that, as then Deputy Superintendent of Police of Gadag, he

has conducted investigation in this matter and that he has

filed charge-sheet against the accused in the case.

24. P.W.15 (C.W.2) Mahadevappa Gadageen and

P.W.16 (C.W.3) Yallappa Asundi have stated that, the scene

of offence panchanama in this matter as per Ex.P.10 was

drawn in their presence and that a photograph as per Ex.P.2

was also taken at that time. They have further stated that

the police had seized stick from the spot at the time of the

said panchanama. P.W.15 in his cross-examination has

stated that, those sticks were three in number and they were

produced by P.W.5 Durgappa from his house, whereas,

P.W.16 has stated that, it was only one stick that was seized

from the spot.

25. In the light of the above, it was the arguments of

the learned Addl. SPP for the appellant that all the

eyewitnesses and the injured have supported the case of the

prosecution. The delay in lodging the complaint which is 39 Crl.A. No.100142/2018

days has been explained by the complainant which is also

supported in the evidence of P.W.6. However, the trial Court

has committed an error in not appreciating these aspects in

their proper perspective, but held that the delay has not

been properly explained which led it to pass the Judgment of

acquittal as against the accused.

26. Learned counsel for the respondents in their

arguments submitted that, P.W.6 has not stated about

motive. On the other hand, he has stated in his cross-

examination that while putting up RCC house, there was no

dispute between the parties. P.W.6 not being an injured

creates a doubt in the case of prosecution. He further says

that, there is a discrepancy in the evidence of Doctor to that

of P.W.1, when the Doctor says that, the injured had come to

the hospital on their own, P.W.1 has stated that it was she

and others who shifted the injured to the Hospital, as such,

the evidence of prosecution cannot be believed. He also

submitted that, P.W.2 has stated that he was inpatient in the

hospital for 20 days and that the police have not recorded his Crl.A. No.100142/2018

statement after his discharge, whereas, the case itself is

registered after 39 days, therefore the Statement P.W.2

cannot be there in the charge-sheet. He further submitted

that, P.W.3 was earlier in a jail in a murder case, as such, his

evidence is not acceptable. He also stated that, no

independent witness from other caste is examined. The

learned counsel also stated that, according to P.W.7, the

scene of offence panchanama was drawn eight days after the

incident, whereas, according to the Investigating Officer, it

was drawn on 05.02.2013. Thus, there is a great discrepancy

in the case of the prosecution. He also submitted that, the

delay in lodging the complaint has not been satisfactorily

explained by the complainant. When there were several

persons who were alleged to be the eyewitness or injured,

anybody could have filed the complaint at the earliest. Thus,

the non-filing of the complaint at the earliest is also fatal to

the case of the prosecution also.

27. In the instant case, admittedly there is a delay of

39 days in filing the first information/complaint by the P.W.1 Crl.A. No.100142/2018

before the police. According to the complainant, the alleged

incident took place on 27.12.2012 at about 11.00 a.m.,

whereas, the first information/complaint was filed only on

04.02.2013 at 2.30 p.m. The complainant in her complaint

has stated that, immediately after the incident since her

husband who was injured in the incident was admitted in the

hospital as an inpatient, she too was with her husband.

Further leader in their community by name Vidyadhar

Doddamani has spoken with leader of Muslim community Sri.

Shadik Naragund and had told her that they would get the

medical expenses incurred towards the treatment of her

husband would be reimbursed. Accordingly, it was

compromised. Since they did not pay the amount, the elders

in the community advised her to lodge a complaint. The

complainant as P.W.1 in her evidence also reiterated the

same. She has stated that when she was in requirement of

`30,000/- towards medical expenses, the accused offered

only a sum of `7,000/-. The accused have denied the same in

the cross-examination of P.W.1.

Crl.A. No.100142/2018

28. The delay caused in filing the complaint if

explained properly would not cause prejudice to the case of

prosecution. Thus, the burden of explaining the delay would

be upon the prosecution. Otherwise, an unexplained delay or

improperly explained delay would lead to suspicion in the

case of prosecution. In the instant case, admittedly there is a

delay of 39 days in lodging the complaint. According to

complainant the community people of the accused had

requested not to lodge the complaint and had assured that

they would reimburse the medical expenses incurred by the

husband of the complainant. Except stating that the witness

has not given any details as to who those community people

of the accused who are said to have assured her of

reimbursing the medical expenses and requesting her not to

lodge the complaint. The complainant though in her

complaint has stated that one Sri. Vidyadhar Doddamani, a

leader of her community and one Sri. Shadik Naragund, a

leader of Muslim community had told her that she would be

reimbursed with medical expenses and had compromised the

matter, but nothing was whispered about them in the Crl.A. No.100142/2018

evidence of P.W.1. She did not even examined either the said

Vidyadhar Doddamani or Shadik Naragund in support of her

contention. The prosecution could have examined the either

of them to explain the reason for the delay in lodging the

complaint.

That apart, according to the complaint at Ex.P.1 it was

the elders in their community who advised her to lodge a

complaint at a later day. It is not mentioned in the complaint

as to whose those alleged elders were. They were also not

examined by the prosecution. No doubt P.W.6 in his evidence

has stated that, after the incident the elders in Gadag have

compromised the matter, however, since the accused had

not agreed to the same, the complainant lodged the

complaint, but he has also not given any details about the

alleged compromise. He has not stated when and where and

between whom the alleged compromise was entered into. On

the other hand, P.W.6 himself in the very next sentence has

stated that later the accused did not agree to the said

compromise. To call a compromise there must be an Crl.A. No.100142/2018

agreement between both the parties. The matter can be

called as compromised, if both have agreed to the alleged

terms of compromise. In the instant case, when even

according to P.W.6 the accused have not agreed to the same,

the question of compromise does not arise. Therefore, the

alleged compromise between the complainant and the

accused or the alleged assurance by Vidhyadhar Doddamani

or Shadik Naragund of getting the medical expenses

reimbursed to the complainant in return of she not filing the

complaint, since have not been established by the

prosecution, the delay in lodging the complaint remains

unexplained, consequently the delay in filing of the complaint

creates a doubt in the case of prosecution.

29. Further to the above, it also cannot be ignored of

the fact that, according to the prosecution apart from the

husband of the complainant i.e. Sri. Basavaraj (P.W.2) there

were three more injured in the incident i.e. P.W.3, P.W.4 and

P.W.5 and at least two more eyewitnesses to the incident

who are examined as P.W.6 and P.W.7. Anyone of these Crl.A. No.100142/2018

could have lodged the complaint at the earliest, but none of

them have lodged the complaint, which also leads to suspect

the case of the prosecution about the alleged incident. In

addition to the above, had there really been any such

compromise between the parties and P.W.1 if had been

requested not to lodge the complaint at the earliest and that

should be reimbursed with the medical expenses incurred

towards the treatment of her injured husband i.e. P.W.2,

then said P.W.2 Basavaraj should have necessarily stated

about the same in his evidence. He has also not stated

anything about the same in his evidence. This further

aggravates the doubt in the case of the prosecution.

30. Regarding the incident no doubt P.W.2, P.W.3,

P.W.4 and P.W.5 stating that they were also the injured in

the incident have spoken about the same. However, when

according to them, there were eight accused, they have not

explained the overt act alleged to have been committed by

each one of them. Even with respect to the alleged overt act

of some of the accused also there is no uniformity among the Crl.A. No.100142/2018

prosecution witnesses in that regard. P.W.2 Basavaraj has

stated that, it was accused No.2 Hussainsab, who directly

went to him and assaulted on his right side of the head

causing bleeding injuries and ran away from the spot, so also

the other people who were with him. On the other hand, his

alleged pillion rider Durgappa (P.W.5) has stated that, after

he was assaulted with a stick by accused No.2 Hussainsab,

the said Hussainsab from the same stick assaulted C.W.4

(P.W.2) Basavaraj on his head. Thus, with respect to the

alleged assault upon P.W.2 there is two different versions

given by P.W.2 and P.W.5, who according to the prosecution

were the riders of the same motorcycle and were said to

have attacked at the same time by the accused.

31. According to P.W.2 after Hussainsab assaulted

him with a stick, all the accused ran away from the place.

Thus he has not spoken anything about P.W.3 and P.W.4

being assaulted by the accused. On the contrary, P.W.5

Durgappa has stated that apart from he being assaulted by

accused No.1, the accused Nos.3 and 4 assaulted C.W.5 and Crl.A. No.100142/2018

C.W.6 with the stick. Thus, with respect to the alleged overt

act of the accused, there is variation in the evidence of

P.W.1, P.W.2 and P.W.5. The said variation being material

variation, it further aggravates doubt in the case of

prosecution.

32. According to the prosecution, accused were eight

in number. The evidence of P.W.1 to P.W.5 speaks about the

role and alleged overt act of accused Nos.1, 2, 3 and 4, but

none of the either injured witness or eyewitness have spoken

about the role of remaining accused who are accused Nos.5,

6, 7 and 8. There is nothing on the evidence to show that

those four accused were also present and had either taken

part in the active assault upon P.W.2 to P.W.5 or have

participated in any manner in the prosecution of the alleged

common object, if any, of the accused. For that matter, the

evidence of none of the prosecution witnesses throw any

light to ascertain as to what common object the accused

have and in what manner they prosecuted it, more Crl.A. No.100142/2018

particularly accused Nos.4 to 8. This also further intensifies

the doubt in the case of the prosecution.

33. So for as the caste of the alleged injured are

concerned, P.W.1 to P.W.6 have stated that all of them

belong to Hindu Waddar Community, which is undisputedly a

schedule caste. The evidence of the Tahashildar who was

examined as P.W.12 go to corroborate the said evidence, he

has issued a caste certificate of the complainant, injured as

well the accused as per Ex.P.8, which certificate has not been

seriously disputed from the accused side. The said certificate

goes to show that, the alleged injured and the complainant

were belonging to Bhovi Community coming under schedule

caste and all the accused belonging to Muslim community

falling under group II-B. However, merely because the

complainant and the alleged injured belonging to scheduled

caste, that by itself cannot be held as attracting the provision

under SC/ST Act, more particularly the offences punishable

under Section 3(1)(x) and 3(2)(v) of the said Act. It is also

required for the prosecution to show that, the accused have Crl.A. No.100142/2018

committed the alleged offence against P.W.2 and others only

for the reason that they were belonging to scheduled caste

and scheduled tribe. However, the evidence led by the

prosecution is lacking on the said aspect.

34. With respect to the alleged statement of the main

injured i.e. at P.W.2 in this case is concerned, there is

discrepancy in the case of prosecution. According to P.W.2 he

was inpatient in the hospital for more than 20 days and that

after his discharge, the police have not recorded his

statement at all. On the contrary, the very fact is that the

complaint as per Ex.P.1 was lodged after 38 days of the

alleged incident. In such a case, if we believe the evidence of

P.W.2 that he has not given any statement to the police,

then how come his statement under Section 161 Cr.P.C. finds

place in the charge-sheet has remained unanswered by the

Investigating Officer who was examined as P.W.14.

Similarly, even with respect to drawing the scene of

offence panchanama also there is a great discrepancy in the

case of prosecution. According to P.W.7 who was shown as a Crl.A. No.100142/2018

Pancha to the scene of offence panchanama which is at

Ex.P.10, the said panchanama was drawn about eight days

after the incident. Undisputedly, the date of alleged incident

is 27.12.2012. However, according to the Investigating

Officer (P.W.14), the said panchanama was drawn only on

05.02.2013. According to the prosecution the complaint itself

had not come in to existence within 39 days after the alleged

incident. Therefore, how can the scene of offence panchama

be drawn eight days after the alleged incident has remained

unanswered by the prosecution. The other witness to the

scene of offence panchanama who is P.W.16 also has not

specifically stated that, as to when the said panchanama was

drawn. Thus, regarding the drawing of scene of offence

panchanama also a doubt arises in the case of prosecution.

According to P.W.15 three sticks at M.O.1 to M.O.3 were

seized from the spot, whereas, according to Co-Pancha who

was P.W.16, only one stick was seized from the spot. In that

regard also there is a discrepancy in the case of prosecution.

Crl.A. No.100142/2018

With respect to the alleged seizure of the sticks at M.O.1

to M.O.3, according to P.W.15, the Pancha those sticks were

in the house of P.W.5 Durgappa and he brought them and

produced before the police. P.W.16 has not stated as to

where those sticks were. According to P.W.14 also, those

sticks were produced by Durgappa, but nothing has come out

in the evidence of P.W.4 Durgappa either about he retaining

those sticks with him after the incident or he producing those

sticks at M.O.1 to M.O.3 to the police. Even according to the

prosecution, the alleged incident has not taken place either

near to or in front of the house of the Durgappa, but it was

at a distant place from his house. Then how come those

sticks were retained by the alleged injured Durgappa for such

a long time, in his house has remained unexplained.

Therefore, seizure of M.O.1 to M.O.3 also creates doubt in

the case of the prosecution.

35. Lastly, with respect to the alleged motive behind the

commission of the crime, none of the witnesses including the

injured have spoken in their evidence. The case of the Crl.A. No.100142/2018

prosecution also is that, the alleged dispute with respect to

putting up of compound wall was between P.W.6 and accused

No.1. If the said dispute is between them, then, how come

P.W.2 and P.W.5 would be attacked by the accused who was not

accused No.1 alone, but were seven more accused has not been

explained by any of the prosecution witnesses including the

Investigating Officer. It is nobodies case that, P.W.2 and P.W.5

had intervened in the alleged dispute between the P.W.6 and the

accused, as such, the accused had grudge against the P.W.2

or/and P.W.5. Thus, when there is nothing on the record to show

nexus between the alleged dispute between P.W.6 and accused

No.1, and the alleged act of assault by accused (that too not just

by accused No.1 but by all the accused) who are eight in

numbers, against unconnected P.W.2 and P.W.5 creates a

serious doubt in the case of prosecution. Even the other two

alleged injured i.e. P.W.3 and P.W.4 also have nowhere stated as

to why should they were assaulted by the accused. They have

not stated that, when they alleged to have intervened in the

incident, they attempted to pacify the matter and that enraged

by the same, accused assaulted them. Thus, without there being Crl.A. No.100142/2018

any provocation to the accused to assault, P.W.3 and P.W.4 why

should they too must be assaulted by the accused have

remained unexplained by the prosecution. No doubt when there

is reliable evidence of eyewitnesses, the proving of motive may

go to the background. However, in the instant case as analysed

above, the very evidence of alleged eyewitnesses itself does not

inspire any confidence to believe. As such, proving of motive was

required for the prosecution to prove the alleged guilt against

the accused. However, the prosecution could not able to

establish the motive behind the alleged crime also.

Thus, the entire case of the prosecution has been

throughout with serious doubts which do not inspire

confidence to believe the case of the prosecution. Since it is

an appeal against the Judgment of acquittal and several

serious doubts has remained in the case of the prosecution,

we have come to a clear conclusion that, prosecution has

failed to prove the alleged guilt against the accused for any

of the alleged offences. Consequently, the impugned Crl.A. No.100142/2018

Judgment of acquittal does not warrant any interference by

this Court. Accordingly, we proceed to pass the following:

ORDER

The appeal stands dismissed.

The Judgment of acquittal dated 26.08.2017 passed by the Principal District and Sessions Judge Court, Gadag in Special SC/ST No.5/2013 stands confirmed.

Registry to transmit a copy of this Judgment to the concerned Special Court with trial court records without delay.

Sd/-

JUDGE

Sd/-

JUDGE

*Svh/-