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2017 DIGILAW 1538 (KAR)

State of Karnataka v. Suresh S/o Laxmanrao Jadhav

2017-11-17

N.K.SUDHINDRARAO, RATHNAKALA

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JUDGMENT : The State is in appeal challenging the judgment of acquittal recorded by the Special Court, Gulbarga in Special Case No.125/2016 thereby acquitting the accused persons of the charges under Sections 143, 148, 447, 324, 326, 504 and 506 read with Section 149 of Indian Penal Code and Section 3(1)(X) and (XI) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act 1989. 2. The Investigating Officer charge sheeted the accused Nos.1 to 7. The case of the prosecution was that on 28.04.2016 at about 3.00 p.m. near the land bearing Sy.No.5/2 of Tungaon village, the accused persons formed unlawful assembly with the common object of committing offence of rioting, armed themselves with deadly weapons have criminally tress passed into the land bearing Sy.No.5/2 belonging to C.W.7 Venkatarao: they voluntarily caused hurt to C.W.1 – Govinda with a club and caused bleeding injury: second accused – Suresh assaulted C.W.1 with a stone and caused internal injury. Further accused No.1 assaulted C.W.9 – Ganapathi with a club and caused grievous injury. C.Ws.4 and 8 were assaulted by accused Nos.4 to 7 with stone. The accused persons not being the members of Schedule Caste or Schedule Tribe and knowing fully well that C.W.1 is a member of Schedule Caste have intentionally insulted him in a filthy language touching his caste. During the pendency of the trial accused No.1 – Laxman Rao expired and case against him is abated. 3. The Special Court procured the accused, framed charge: when read over they denied the same: prosecution, entered into trial, examined fifteen witnesses as P.Ws.1 to 15 and marked document Ex.P.1 to Ex.P.8 and material objects M.O.Nos.1 and 2. The statement of accused was recorded as per provision of Section 313 Cr.P.C. They denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. There was no rebuttal evidence for the accused. The Special Court on consideration of the entire material on record, acquitted the accused persons. 4. The learned High Court Government Pleader for the State assailing the judgment of the Court below submits that there is no dispute to the fact that the accused persons belonged to Marata Community and the complainant/P.W.2 comes from Schedule Caste. This fact is established by the evidence of P.Ws.2, 5 and 9. P.W.2 categorically testified before the Court that the accused abused him in the name of the caste. This fact is established by the evidence of P.Ws.2, 5 and 9. P.W.2 categorically testified before the Court that the accused abused him in the name of the caste. But the Tribunal without application of mind has acquitted the accused of the charge under Section 3(1)(X) and Section 3(2)(V) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989. Further the Court has observed that there was six hours delay in lodging the complaint, in fact the incident occurred at 3.00 p.m. on 28.04.2006 and first information report was lodged at 6.00 p.m. That much time was required for the complainant to reach the police station from the spot. The delay of three hours is properly explained by the prosecution. The injured witnesses P.Ws.2 and 5 have categorically testified about the over tact exhibited by the accused persons, the same was corroborated by the documentary proof i.e., wound certificates Exs.P.3, P.4 and P.5. The Court below had made much about the age of the injury, the Doctor has certified in the wound certificate that the injuries are within the 12 hours but the Court interpreted that the injuries must have been inflicted 12 hours before, because of the suspicious answer given by the doctor. 5. The Court ought to have considered that it was only a discrepancy in the evidence, which did not go to the root of the matter. In one of the wound certificate Ex.P4 the doctor has inadvertently mentioned the date of examination as 29.04.2016, which is over weighed for the Special Judge to acquit the accused persons. When there is unimpeachable evidence of the oracular witnesses who are also the injured witnesses the Court ought to have given prominence to their evidence over the medical evidence. Hence, the impugned judgment is untenable liable to be set aside and the accused to be convicted for the respective charges. 6. In reply, learned counsel for respondents Sri Ashok B Mulage, submits that the complainant P.W.2 is not the owner of land where the offence is said to have been committed. In fact it was a property dispute between two brothers i.e., P.W.3 Venkatarao and accused No.1/Laxman Rao. Since the complainant/Govinda belongs to Schedule Caste Community was purposely used by P.W.3 to lodge the complaint so as to bring the case within the frame of Schedule Caste and Schedule Tribe (Prevision of Atrocities) Act, 1989. In fact it was a property dispute between two brothers i.e., P.W.3 Venkatarao and accused No.1/Laxman Rao. Since the complainant/Govinda belongs to Schedule Caste Community was purposely used by P.W.3 to lodge the complaint so as to bring the case within the frame of Schedule Caste and Schedule Tribe (Prevision of Atrocities) Act, 1989. Even if the evidence of PW2 is accepted in it’s entirety it lacks ingredients of Section 3 of the Act. Intentional insult to humiliate the complainant on the ground of his caste cannot be found in his evidence. Moreover, the injured witnesses P.Ws.2, 4, 5 and 13 and P.Ws.8 to 9 are not related to the civil dispute between the brothers of PW3 and accused No.1. There is no corroboration between the oracular evidence and the documentary proof. The injured witnesses testified before the Court that P.Ws.4 and 5 suffered grievous injuries. But while in witness box P.Ws.4 and 5 did not testify anything the grievous injuries suffered by them. P.W.11 Dr. Suchitra, had admitted before the Court that she had mentioned that the age of the injuries was beyond 12 hours of her examination. She had admitted that she had not mentioned the color and shape of the injury and she could not state by using which weapon particular injury was caused. Since the prosecution evidence was brought with discrepancies, the Special Judge has rightly disbelieved the case of the prosecution and acquitted the accused persons. 7. In the light of the above rival submissions, we have gone through the evidence of witnesses. 8. Complainant/P.W.2 he had testified that he was assaulted by sixth accused above his left ear and by second accused on his left buttock. The wound certificate pertaining to him is at Ex.P.4, reflecting a bruise over the left gluteal region and also abrasion over the left temporal region and the injuries were simple in nature. 9. P.W.4 Bhimarao is the another injured and his wound certificate is at Ex.P.5, certifying fracture of middle humorous. But his oral testimony was, he was assaulted by fourth accused on his hand, leg and also back and he was unconscious. He never testified about the fracture suffered during the incident. 10. The other injured witness is P.W.5 – Ganapathi, his injury certificate is Ex.P.6, documenting fracture of third pelvic rib in the middle auxiliary line. But his oral testimony was, he was assaulted by fourth accused on his hand, leg and also back and he was unconscious. He never testified about the fracture suffered during the incident. 10. The other injured witness is P.W.5 – Ganapathi, his injury certificate is Ex.P.6, documenting fracture of third pelvic rib in the middle auxiliary line. But there was no such evidence of sustaining grievous injury in his oral evidence. He only stated that he was assaulted and he lost his conscious. The next injured witness is P.W.13 – Prakash, injury certificate pertaining to him is at Ex.P.3 and no injury is caused on him. 11. The Special Judge during the course of his discussion has noticed from the complainant about the presence of any witnesses near the spot at the time of the incident and there was no whisper in the evidence of P.W.2 about the description of the land on which, they were carrying on agricultural operation and there was nothing about the assault on P.W.4 and P.W.13. P.W.2 did not depose the abusive words, hurled by accused against him which he had mentioned in his complaint. 12. The Special Judge also took note of the discrepancy from the medical evidence adduced through P.W.11 – Doctor. As per the case of the prosecution injured were taken to the hospital within four hours of the incident but as per the wound certificate the injuries were within 12 hours old. The doctor before the Court had testified that the injuries were 12 hours old. 13. With regard to the allegation of criminal trespass i.e. offence under Section 447 of IPC there was no evidence that the property in question was under the possession of Venkatarao– P.W.3. As per the evidence of P.W.3 civil litigation was pending between the family of the accused and himself. No document was produced by the prosecution to establish that the place of occurrence is under the possession of P.W.3. P.W.3 was silent about the overt act exhibited by each of the accused though he claims to be eye witnesses: he did not depose anything about the abusive words used by the accused persons against the complainant. 14. P.W.4 Bhimarao has testified to the effect that he was assaulted by accused Rajendra on his hand, leg and also back and his evidence was not in consistence with the medical evidence. 14. P.W.4 Bhimarao has testified to the effect that he was assaulted by accused Rajendra on his hand, leg and also back and his evidence was not in consistence with the medical evidence. He had only suffered bruise over the left shoulder and the fracture was suspected on the shoulder joints. 15. Further learned Special judge observed from the evidence of P.W.5, he had not deposed on which part of the body he was assaulted and the nature of the injury he sustained. But the x-ray was speaking about the fracture of left third rib. 16. P.W.13 – Prakash though had stated that he was assaulted by accused No.1 and 2, no injury was noticed in the medical certificate, that prompted Special Judge to doubt the veracity of the prosecution case and the evidence of injured witnesses. The so called independent eye witnesses P.W.6 and P.W.7 were doubted on the ground that there was no corroborative evidence to show that they were working as driver in the tractors which allegedly damaged the property of P.W.2. Neither the tractor number was mentioned nor the documents pertaining to the tractors was placed on record. 17. P.W.8 is said to be neighboring land owner. During the cross examination he admitted that between his land and the place of occurrence there are lands belonging to other persons and the distance is about one kilometer. The evidence of two other witnesses P.W.9 and P.W.10 was also disbelieved by the Special Judge for lacking material particulars about the details of the incident. Thus, the charge under Section 147, 148, 447, 324, 326, 504 and 506 read with Section 149 of IPC failed without proof. 18. It is also a matter of fact that the complainant has nothing to do with the civil dispute ensuing between P.W.3 and the accused. He is said to be a person working in the land of P.W.3 who is really aggrieved in the event the accused had damaged his land. Instead of he lodging complaint, he has got the complaint lodged possibly with the hidden agenda, which has been noticed by the Special Court. Thus, the offence under Section 3 of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 also failed and rightly Special Judge has acquitted the accused persons and we endorse the same. Accordingly, the appeal is dismissed.