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2016 DIGILAW 604 (KAR)

State of Karnataka v. Ankush

2016-08-04

BUDIHAL R.B.

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JUDGMENT : Budihal R. B, J. The judgment and order of acquittal dated 05.10.2010 passed by the II Addl. Sessions Judge, Gulbarga, in S.C. No.123/2009 has been called in question by the State in this appeal. By the impugned judgment and order, the trial Court acquitted the respondents-accused Nos. 1 to 22 of the alleged offences punishable under Sections 143, 147, 148, 295, 153(A) read with Section 149 of IPC and Section 2 of Prevention of Destruction and Loss of Property Act and Section 3(1)(x) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. 2. Being aggrieved by the judgment and order of acquittal, the State has come up in appeal challenging the validity and correctness of the said judgment and order on the grounds mentioned in the appeal memorandum. 3. Brief facts of the prosecution case as per the complaint averments that P.W.1-Rajendra filed the complaint, which is marked as Ex.P-1, before the Aland Police Station, stating that the bus stand of their village is nearby the Margamma Temple and nearby the said Margamma Temple they got constructed at Dr. Babasaheb Ambedkar chowk on 20.12. 2008. It is further alleged that on 02.01.2009 in the midnight i.e., at 00.30 a.m., accused Nos. 1 to 23 as mentioned in the complaint, were at the spot holding axe, crowbar and spade and they came there to destroy the Dr. Ambedkar Katta constructed in the said chowk. At that time, complainant and Dileep (P.W.2), Jaibheem (P.W.7) and Bahurao (P.W.3) have seen all the accused persons in the street light and they told the accused persons that it is not proper to destroy Dr.Ambedkar Katta, for which the accused persons abused them in filthy language by taking the name of their caste as (xxx) and they threatened the complainant and others, who were present at the spot, and with an intention to create communal disharmony, they started to destroy Dr.Ambedkar Katta. Therefore, they sustained the loss of Dr. Ambedkar Katta, hence, legal action may be taken against all the accused persons. On the basis of the said complaint, case has been registered by P.W.8-Satyanarayan, in their Police Station in Crime No. 2/2009 and issued the FIR, which is marked as Ex.P-6. 4. Therefore, they sustained the loss of Dr. Ambedkar Katta, hence, legal action may be taken against all the accused persons. On the basis of the said complaint, case has been registered by P.W.8-Satyanarayan, in their Police Station in Crime No. 2/2009 and issued the FIR, which is marked as Ex.P-6. 4. After completing the investigation, Investigating officer has filed the charge sheet against the accused persons for the offences punishable under Sections 143, 147, 295, 153A read with Section 149 of IPC, also under Section 2 of The Karnataka Prevention of Destruction and Loss of Property Act, 1981, and also under Section 3(1)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. 5. In order to prove its case, prosecution in all examined 9 witnesses as P.Ws.1 to 9 and got marked six documents as Exs.P-1 to P-6. On the other hand, neither any witness has been examined on the side of defence nor any documents got marked. 6. Heard the arguments of the learned High Court Government Pleader appearing for the appellant-State and also the learned counsel for respondents-accused persons. 7. Learned HCGP during the course of his arguments has submitted that the trial Court has not read the evidence properly, though are the eye-witnesses to the incident i.e., P.Ws.1 to 3 and they have clearly deposed in their evidence about they seeing accused persons at the spot and the accused persons destroying the Dr. Ambedkar Katta during night and even though, the material objects M.Os.1 to 4 were seized at the spot, in spite of all these material, the trial Court wrongly read the evidence and wrongly proceeded to acquit the accused persons. Hence, he has submitted that prosecution has proved its case beyond all reasonable doubt and hence, submitted to allow the appeal and to set aside the judgment and order of acquittal passed by the trial Court by convicting the accused persons for the offences for which they are charged. 8. Per contra, learned counsel for respondents- accused Nos. 1 to 22 during the course of his arguments has submitted that the offence is said to have been committed in the midnight i.e., at 00.30 a.m. on 02.01.2009, therefore, the prosecution has to establish as to why the complainant and others were present at the spot during that odd hours, and how they have witnessed the incident. 1 to 22 during the course of his arguments has submitted that the offence is said to have been committed in the midnight i.e., at 00.30 a.m. on 02.01.2009, therefore, the prosecution has to establish as to why the complainant and others were present at the spot during that odd hours, and how they have witnessed the incident. He has submitted that perusing spot mahazar (Ex.P-2), there is no mention about the existence of street light at the spot. It is also his contention that even the Investigating officer (P.W.9) has admitted in his evidence that he has not at all made any efforts to collect the materials so far as the existence of street light at the spot as on the date of alleged incident. He submitted that these materials clearly show that there was no light at the spot, hence, submitted that the prosecution case is a false case against the accused persons. He has further submitted that even looking to the evidence of prosecution witnesses, who claims to be the eye-witnesses, there is no consistency in their evidence and they are self-contradictory and the evidence of such witnesses are not worth believable. He has further submitted that there was no such Katta as Dr.Ambedkar Katta and in the village Kotan Hipparga, there are only four chowks. In the said boundary, which the complainant is claiming, there is an existence of Basaveshwara Chowk and not Dr.Ambedkar chowk. In this Connection, learned counsel for respondents drew the attention of this Court to the judgment dated 09.06.2005 passed in R.A.No.11/2005 by the Civil Judge (Sr. Dn.) at Aland. He has also submitted that during the course of evidence, prosecution witnesses have deposed that on that night, they were returning from Ladvanti village towards Kothan Hipparga and when they reached the village, it was midnight and they have to pass through the said chowk to go to their house, hence, they have personally witnessed the incident. In this connection, learned counsel drew the attention of this Court to the contents of Ex.P-1- complaint and submitted that there is no such specific averment in the complaint and in the absence of such averment in the complaint, whatever the witnesses have deposed before the Court cannot be accepted at all. In this connection, learned counsel drew the attention of this Court to the contents of Ex.P-1- complaint and submitted that there is no such specific averment in the complaint and in the absence of such averment in the complaint, whatever the witnesses have deposed before the Court cannot be accepted at all. He has lastly submitted that the trial Court taken into consideration all these aspects of the matter and rightly disbelieved the case of the prosecution and acquitted the respondents-accused. Hence, no illegality has been committed by the trial Court nor there is any perverse or capricious view taken in coming to such conclusion. Hence, submitted that there is no merit in this appeal and same may be dismissed. 9. I have perused the grounds urged in the appeal memorandum, oral evidence of P.Ws.1 to 9, documents Exs.P-1 to P-6 produced by the prosecution before the trial Court and also considered the submissions made at the Bar by both sides. 10. It is the case of the prosecution that when the complainant along with his friends i.e., P.Ws.3 and 7, while returning during night from Ladvanthi Village towards Kotan Hipparga, they reached Kotan Hipparga at midnight i.e., 00.30 a.m. on 02.01.2009 and in the street light they have seen all these accused persons gathered at Dr. Ambedkar Katta holding pick-axe, crowbar and spade in their hands and they were making an attempt to destroy the Dr. Ambedkar Katta. They had not listen to their advice and started to destroy Dr. Ambedkar Katta and also abused them in filthy language. The time at which the alleged incident said to have been taken place is the midnight i.e., 00.30 a.m. on 02.01.2009, as it is rightly submitted by the learned counsel for respondents-accused, firstly the complainant and other prosecution witnesses, who claimed that they have witnessed the incident, have to establish before the Court that why at that odd hours, they were at the said place. In this connection, looking to the earlier evidence of P.W.1-Rajendra, P.W.3- Bahurao, P.W.7-Jaibheem, it is no doubt true they have stated that they were coming back from Ladvanthi village towards Kotan Hipparga. Looking to the evidence of P.W.2- Dileep, who has deposed that, as his grand-mother was not feeling well at Ladvanthi village, he along with others went to the said village to see his grand-mother. Looking to the evidence of P.W.2- Dileep, who has deposed that, as his grand-mother was not feeling well at Ladvanthi village, he along with others went to the said village to see his grand-mother. But looking to the complaint averments and as it is submitted by the learned counsel for respondents, there is no specific averment in the complaint that on the said night they were coming back from Ladvanthi village to Kotan Hipparga, therefore, regarding this important material fact, there is no mention in the complaint (Ex.P-1). Apart from that when the complainant and others have claimed that they have seen the incident in the midnight, burden is casted on the prosecution to establish the fact that how they have witnessed the incident, which was the light existed at the said place. With regard to the said aspect, it is no doubt true, P.W.1 and other witnesses in their evidence have stated before the Court that there was an electric pole nearby the spot and during night there was a street light in which light they have witnessed the incident. I have perused Ex.P-2 spot mahazar, wherein there is no mention that nearby the spot or at the spot there was such street light or the electric pole having light. Ex.P-2 also shows that at the time of conducting mahazar, it is mentioned that at the distance of about 10 feet on the northern side there is one Turmeric tree, when such things are mentioned in the Ex.P-2 panchanama, then nothing prevented to mention about the existence of electric pole or the street light at the spot. Therefore, no such things are mentioned in the spot mahazar. Apart from that, P.W.9-Investigating officer, who completed the investigation and filed the charge sheet, during the course of his evidence, has deposed and admitted that in the panchanama, that nearby the spot there was an electrical pole. He further deposed that he has not conducted investigation to ascertain the fact that on the date of incident whether there was electricity supply at the spot and also in the said village. The said evidence of Investigating officer clearly shows that he has not conducted any investigation to ascertain the said fact. Prosecution has also not produced any documents to show that there was an electricity supply during that night. The said evidence of Investigating officer clearly shows that he has not conducted any investigation to ascertain the said fact. Prosecution has also not produced any documents to show that there was an electricity supply during that night. In the absence of such material before the Court, only on the basis that witnesses have deposed during the course of trial that they have witnessed the incident in the street light cannot be accepted at all. 11. Coming to the evidence of prosecution witnesses, who claims that they are the eye-witnesses to the incident, P.W.1, who is the complainant, has deposed during the course of cross-examination that on the alleged day as there was a galata, he was not able to identify the persons gathered at the spot. As per the case of the prosecution, there were totally 23 persons at the spot holding the weapons viz., pick-axe, crowbar and spade. It is no doubt true, the material objects said to have been seized from the spot were marked during the course of trial as M.Os.1 to 4, but which accused was holding which weapon is also not specifically deposed by the witnesses. Even with regard to the abuse made by the accused persons taking caste of the complainant and other witnesses, there is no consistent evidence led by the prosecution through the mouth of the prosecution witnesses. P.Ws.1, 2 and 5 have also admitted that cases are filed against them and they are pending for enquiry before the Court. 12. It is the claim of the complainant and other persons that the said area is Dr. Ambedkar Chowk, 15 days earlier to the alleged incident, they got constructed Dr. Ambedkar Katta at the said place and they have named the same as Dr. Babasaheb Ambedkar Katta. During the course of cross-examination of the prosecution witnesses, same has been challenged by the defence stating that there was no such Katta and false case has been made out against the accused persons and they have been falsely implicated in the case. 13. P.W.9, the Investigating officer, has deposed in his evidence that in the Peace Meeting, he came to know that there was a Panchayat resolution for the construction of Dr. 13. P.W.9, the Investigating officer, has deposed in his evidence that in the Peace Meeting, he came to know that there was a Panchayat resolution for the construction of Dr. Ambedkar Katta, if at all the Dr.Ambedkar Katta is constructed as per the permission, the said resolution passed by the Panchayat could have been produced by the prosecution before the Court to establish the said fact. No documents are forthcoming with regard to the permission or with regard to the resolution passed by the Panchayat permitting for the construction of the said Katta at the said place. P.W.3-Bahurao during the course of cross- examination has deposed that he has not seen any identification marks on M.Os.1 to 4 to say that they are with which accused persons. There are omissions in the evidence of P.Ws.2 and 3, which has been confronted to Investigating officer-P.W.9. P.W.9 has deposed that Dileep (P.W.2) has not stated in his statement before him that as accused abused by taking name of their caste, he was insulted. So also with regard to the omission in the statement of P.W.3 Bahurao, he admitted in his evidence that, PW.3 has not at all stated before him in his statement that, on that day he was proceeding from one house towards the another house. Even he has deposed that PW.3 has not at all stated that nearby his house Dr. Ambedkar Katta. He further deposed that PW.3 Bahurao has not stated before him in his statement that the accused abused the complainant as xxx xxx 14. Considering these material omissions in the statement of PWs.2 and 3, which they have stated before the Court during trial. The defence has established the omissions by confronting the same to the Investigating officer. Apart from that, the defence relied upon the judgment of the Civil Court copy of which was produced before the trial Court in R.A.No.11/2005. I have perused the said judgment also. Looking to the said judgment it goes to show that the civil suit was in between Pandurang s/o Sambaji and another v. Pradhan Mandal Panchayat Redrawadi and another placing them as defendants and the said appeal was allowed by the Court. The judgment and decree passed by the trial Court in O.S.No.316/1991 dated 17.01.2005 has been set aside. Looking to the said judgment it goes to show that the civil suit was in between Pandurang s/o Sambaji and another v. Pradhan Mandal Panchayat Redrawadi and another placing them as defendants and the said appeal was allowed by the Court. The judgment and decree passed by the trial Court in O.S.No.316/1991 dated 17.01.2005 has been set aside. Not only that defendants were also restrained from destroying the suit properties i.e. 4 chowks mentioned in the judgment of the operative portion ' Shivaji Chowk, Basaveshwar Chowk, Mahadev Chowk and Siddeshwar Chowk. It is claim of the defence during the course of the cross-examination that in the place in respect of which the complainant and others are claiming that it is a Dr.Ambedkar Chowk there was a Basaveshwar Chowk. In the spot mahazar Ex.P2 the boundary marks are mentioned in respect of the said Dr. Ambedkar Katta. But comparing the said boundaries with the boundaries as mentioned in the judgment of the Appellate Court in R.A. No.11/2005 so far as it relates to Basaveshwar Chowk they are one and the same. This clearly goes to show that there is already a judgment of the Civil Court that the property in between the said boundaries is the Basaveshwar Chowk. In spite of that the complainant and others are still claiming that it is Dr. Babasaheb Ambedkar Chowk and same has been destroyed by the accused persons. 15. When the prosecution is not able to establish that on the date of the alleged incident there was street light, the question arises how the complainant and others have witnessed the incident. Admittedly, even according to the complainant there were 20 persons said to have been involved in the case. The complainant has admitted that there was a galata, and hence, he was not able to identify the persons gathered there. This itself supports the contention of the respondents ' " accused that there was no street light. Admittedly, even according to the complainant there were 20 persons said to have been involved in the case. The complainant has admitted that there was a galata, and hence, he was not able to identify the persons gathered there. This itself supports the contention of the respondents ' " accused that there was no street light. Under such circumstances, looking to the judgment and order passed by the trial Court, the trial Court taken into consideration the entire materials placed on record both oral and documentary and rightly appreciated the material and rightly proceeded to hold that prosecution failed to prove its case beyond reasonable doubt and reasonable doubt arises in the mind of the Court as to the case of the prosecution and the benefit of doubt has been given to accused persons. Accordingly, the respondents-accused are acquitted. Even after re- appreciating the entire material, both oral and documentary, I do not find any illegality in the order of the trial Court nor there is any perverse or capricious view taken by the trial Court. The view taken by the trial Court is one of the possible views. Therefore, there are no grounds for this Court to interfere into the judgment and order of acquittal passed by the trial Court. Hence, the appeal is hereby dismissed.