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2011 DIGILAW 359 (KAR)

Hanumanthappa v. State By Davanagere Rural Police

2011-03-29

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed challenging the judgment dated 2.7.2004, passed by the District and Sessions Judge, Davanagere in Spl. SC/ST Case No. 59/2000 convicting the accused for the offences punishable under Sections 147, 323, 325 and 508 IPC read with Section 149 IPC and for the offences punishable under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing them to pay a fine of Rs. 500/- each for the offence under Section 147 IPC read with Section 149 IPC, further sentencing them to pay a fine of Rs. 300/- each for the offence punishable under Section 323 IPC read with Section 149 IPC, further sentencing them to undergo R.I. for 6 months and to pay fine of Rs. 1,000/- each for the offence punishable tinder Section 325 IPC read with Section 149 IPC and further sentencing them to pay a fine of Rs. 1,000/- each for the offence punishable under Section 506 IPC read with Section 149 IPC, further sentencing them to undergo R.I. for 6 months and to pay a fine of Rs. 500/- each for the offence punishable Section 3(1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. 2. The case of the prosecution is that on 3.8.1.996 at about 5 p.m.., near the vacant site of one Kumarappa situated at Janatha Colony at Kogganur village, the accused forming themselves into an unlawful assembly with a common object, of hurting C.W. 1 Kumarappa committed rioting thereby, they are charged for having committed an offence punishable under Section 147 IPC. It is further charged against them that on the above said place, date and time in furtherance of the common object, knowing fully well that C.Ws. 1 and 2 belong to scheduled caste community abused them by taking the name of their caste within the public view thereby, they are alleged to have committed an offence punishable under Section 3(1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 read with Section 149 IPC. It Is further charged against them that on the aforesaid date, place and time, the accused Nos. I to 3 voluntarily caused hurt to C.W. 1 Kumarappa thereby, they are alleged to have committed an offence punishable under Section 323 IPC read with Section 149 IPC. It Is further charged against them that on the aforesaid date, place and time, the accused Nos. I to 3 voluntarily caused hurt to C.W. 1 Kumarappa thereby, they are alleged to have committed an offence punishable under Section 323 IPC read with Section 149 IPC. It is further charged against the accused that on the aforesaid date, place and time, the accused have assaulted C.W. 2 Anjinappa and caused grievous injury to him, thereby, they are alleged to be guilty of an offence punishable under Section 325 IPC read with 149 IPC, It is further charged against them that on the aforesaid date, place and time, they have committed offence of criminal intimidation by threatening C.Ws. 1 and 2 to finish them of, thereby, they are alleged to have committed offence under Section 506 IPC read with Section 149 IPC. 3. In order to prove the case, prosecution has examined in all 9 witnesses and got marked Exs. P1 to P8. 4. The defence of the accused was one of total denial. However, after hearing the prosecution and the defence the learned Sessions Judge was pleased to convict, and sentenced them as mentioned above. The convicted accused have filed this appeal. 5. Heard Sri C. Shiva Kumar, learned Counsel for the appellants and Sri Satish R. Girji, learned HCGP for the respondent State. 6. Learned counsel for the appellants submits that out of 9 witnesses examined in this case, P.Ws. 2 to 5 have not supported the case of the prosecution. P.W. 1 has stated before the Court that he has given the complaint, 2 days after the date of incident, whereas, the prosecution papers indicate that the complaint has been given on 4.6.1996, stating that incident has happened on 3.6.1996. Hence, he submits that there is discrepancy regarding the actual date on which the incident has happened. He further submits that the place where the incident is alleged to have happened is the vacant site and therefore, the ingredients of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 is not attracted since, an. offence under Section 3 of the said Act should have been committed in the public view. There is no evidence to show that members of the public were present at the time when the incident happened or the place of the incident happened is a public place. offence under Section 3 of the said Act should have been committed in the public view. There is no evidence to show that members of the public were present at the time when the incident happened or the place of the incident happened is a public place. He further submits that wound certificate have been got created in this case on 4.6.1996 and the doctor gives an opinion that the age of the injury is 12 to 36 hours, which does not tally with the version in the complaint. He further submits that the Thasildhar has not. been examined in this case to prove the caste certificate, which has been issued much later than the date of incident. Even the contents of caste certificates indicates that the Thasildhar bases his certificate on the report given by the Revenue Inspector. The said Revenue Inspector is not examined nor named in the charge sheet. The certificate Ex. P8 issued by the Thasildar does not even mention under which order passed under the Constitution of India, the complainant and C.W. 2 belong to which community, therefore, he submits that the alleged caste certificate Ex. P8 has no value in the eye of law and cannot be relied upon. Under the circumstances, he submits that the accused are entitled for an order of acquittal and prays for allowing this appeal. 7. Sri Sathish R. Girji, learned HCGP submits that the evidence on P.Ws. 1 and 2, who are injured in this case is sufficient to hold that the accused have assaulted them on the date of incident, and that, the certificates issued by the doctor P.W. 8 further indicates that P.W. 1 has sustained simple injuries and P.W. 2 has sustained grievous injuries, P.W. 1 has further stated in the evidence that since his brother was not there in the house, he could not go to the Police Station on the same day and that he had come on the next day of the incident. He also submits that P.W. 9 Is Deputy Superintendent of Police who has secured the caste certificate Ex. P8 issued by the Thasildhar and the said certificate proves that P.Ws. 1 and 2 belong to Adi-Karnataka community, which is classified as a scheduled caste. It. He also submits that P.W. 9 Is Deputy Superintendent of Police who has secured the caste certificate Ex. P8 issued by the Thasildhar and the said certificate proves that P.Ws. 1 and 2 belong to Adi-Karnataka community, which is classified as a scheduled caste. It. is further submitted by the learned HCGP that the complaint states that the incident, has happened near the vacant, site and witnesses like Chandrappa and other public people were present at the place and time of the incident. Therefore, the provisions of Section 3(1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 are attracted in this case. Hence, he submits that accused are rightly convicted and the appeal is devoid of merits and the same is liable to be dismissed and therefore, prays that the appeal may be dismissed. 8. The proceedings in this case commenced with filing of the complaint by A.K. Kumarappa on 4.8.1996 before the Davanagere Rural Police Station. It is stated in the said complaint that on 3.6.1996 at about 5 p.m., the accused persons who belong to Kuruba community had left their cattle to graze in the land, where they had collected bricks and in view of coming mansoon, covered, the bricks with the sugarcane waste and the cows belonging to one Ravi son of Chenappa were damaging the said waste by pulling the same and thus exposing the bricks for rain water. They questioned the said Ravi as to why his cows are damaging the bricks, at that time, all the accused persons abused him in the name of the caste for questioning their boy and also threatened him. Thereafter, the accused felled him down and held his collar and snatched the chain. As a result of which, he sustained bleeding injuries. They also kicked him by legs and threatened to kill him. Hence, he has prayed for action against said 5 persons. He has stated that one Agasara Chandrappa has witnessed the incident and has intervened. On the basis of the said complaint, the Davanagere Rural Police have registered the case in crime No. 243/1996 for the offences punishable under Sections 143, 147, 324, 508 IPC and read with Section149 IPC and Section 3(1)(x) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. After completion of the investigation by P.W. 9 Deputy Superintendent of Police, charge sheet, came to be filed against all the 5 accused persons. After completion of the investigation by P.W. 9 Deputy Superintendent of Police, charge sheet, came to be filed against all the 5 accused persons. 9. P.W. 1 has reiterated the version given by him in the complaint. He has stated that on the date of the offence, accused have abused him in the name of his caste and thereafter, held his collar and assaulted him and felled him down. He has sustained injuries where after, he went to the Chigateri Hospital, Davanagere. On the day subsequent to the next day, that means, after 2 days he has given the compliant to the police as per Ex. P1. He has identified the complaint. In the cross-examination, it is elicited that the accused belong to the Raita Sanga and his brother had filed a case of similar nature against 24 persons of the village. His another brother Siddappa has also filed a case against 9 persons. He has admitted that there is dispute regarding Gornala land between his brother and the accused. He has also stated in the cross-examination, that the Primary Health Centre is about 1 km. away from their village. P.W. 2 Anjinappa is the injured. He has also stated regarding the damage of sugarcane waste put on the bricks. He has stated that accused Nos. 1 to 3 have assaulted his brother and also assaulted him on the date of offence by means of hands. He had lost conscience thereafter, he has been taken to the hospital at Davanagere, P.Ws. 3 to 5 have turned hostile to the case of the prosecution. P.W. 6 Dr. Devarajan, has stated that on 4.6.1996 at about 4.05 p.m., P.W. 1 was brought by one Hanumanthappa for treatment of the injuries sustained by him. He has treated the said P.W. 1 and has issued Ex. P1 wound certificate and at 4.15 p.m., on the same day he has examined Anjinappa with a similar history, who was found to have no visible external injuries. He has tested the ears and throat of P.W. 2 and found that there was some damage inside his right ear. He has opined that the said injury might have been caused by assault. He has further opined as per Ex. P6 stating that the injuries caused on P.Ws. 1 and 2 should have been caused between 12 to 36 hours prior to his examination. He has opined that the said injury might have been caused by assault. He has further opined as per Ex. P6 stating that the injuries caused on P.Ws. 1 and 2 should have been caused between 12 to 36 hours prior to his examination. P.W. 7 Gangamma has stated that she came to know about the incident 15 days after the date of the incident and when she started searching some articles belonging to her brother at the scene of occurrence, she got a gold chain and the ‘mani’s at the scene of occurrence and she has returned the same to P.W. 2. P.W. 8 Guniswamy is the PSI who has registered the case. P.W. 9 is the Deputy Superintendent of Police who has conducted the investigation and filed the charge sheet. 10. It is from the evidence of these witnesses, the learned Sessions Judge has found the accused guilty and convicted them and sentenced as aforesaid. 11. On a careful re-appreciation of the entire materials on record, I find that there is glaring discrepancy in the evidence of P.Ws. 1 and 2, in so far as the date of incident is concerned. P.W. 1 has categorically stated in the chief-examination itself that he has given the complaint after 2 days of the incident. On a scrutiny of Ex. P1, it is seen that the same was given on 4.6.1996 and according to P.W. 1 incident should have taken place on 2.6.1.996 whereas, Ex. P1 states that the incident had happened on 3.6.1996. Apart from, that P.W. 6 doctor says that the incident has happened 12 to 36 hours prior to his examination, which would take one to 2.6.1996 and not on 3.6.1996. On a perusal of Ex. P1, it is seen that it is a typed complaint and the complainant nor the police have come with an explanation as to by whom and from whom the said complaint has been got typed and who instructed the typist to give the contents of Ex. P1. P.W. 1 does not whisper anything in his evidence regarding the typing of the complaint by him and nor the persons from whom he got it typed. Under the circumstances, the very contents of Ex. P1. cannot, be relied in view of the discrepancy mentioned above. 12. P1. P.W. 1 does not whisper anything in his evidence regarding the typing of the complaint by him and nor the persons from whom he got it typed. Under the circumstances, the very contents of Ex. P1. cannot, be relied in view of the discrepancy mentioned above. 12. So far as the injuries are concerned the doctor has stated that P.W. 2 had no visible external injuries on his person and that there was difficulty in hearing in the right ear. From the evidence of P.W. 2 it is seen that, the accused had assaulted him and if at all such a assault was committed by the person on P.W. 2, there could have some visible injuries. Under the circumstances, a serious doubt arises regarding the time, place and the manner in which the alleged incident has happened. The compliant mentioned of one Agasara Chandrappa, who was present at the time of offence, the said Chandrappa has turned hostile to the case of the prosecution, 13. It is seen that the caste certificate issued by the Thasildar is dated 25.7.1996 much after the date on which alleged incident, has happened. The said caste certificate does not say as to under which order passed under the Constitution of India, the caste of the complainant and P.W. 2 is qualified as Scheduled Caste. Further, the said certificate indicates that based on the report of the Revenue Inspector the letter Ex. P8 has been issued by the Thasildar. Neither the Revenue Inspector is cited in the charge sheet nor his name is found in Ex. P8, leave alone examining him before the Court. No proper reasons are assigned by the prosecution for not examining the Thasildhar before the Court and therefore, the Court could not have taken cognizance of the contents of the Ex. P8 to base the conviction under Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. 14. From what has been discussed above, I am of the opinion that the prosecution has not proved the case against the accused beyond reasonable doubt and the accused are entitled for an order of acquittal. Accordingly, this appeal is allowed. The order of conviction and sentence passed against the appellants is hereby set aside and accused are acquitted of the offences charged against them. Accordingly, this appeal is allowed. The order of conviction and sentence passed against the appellants is hereby set aside and accused are acquitted of the offences charged against them. The bail bonds if any, executed by them is hereby discharged and the fine amount if any, deposited shall be refunded to the accused.