Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1439 (KAR)

State v. Syed @ Syedahman Allabaksh

2020-07-20

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - Criminal Appeal No. 100285/2016 has been preferred by the state for enhancement of the sentence whereas Criminal Appeal No. 100158/2016 has been preferred by the appellants-accused Nos.1 to 5 challenging the legality and correctness of the judgment passed by the learned Prl. Dist. & Sessions Judge Special Judge at Haveri in Special (SC/ST) case No. 22/2009 dated 06.04.2016. 2. We have heard the learned Addl. SPP for the appellant-State so also we have heard learned counsel Sri K.L. Patil for the appellants-accused and perused the records including the trial court records. 3. The genesis of the case of the prosecution in brief is that on 22.05.2009 the complainant was proceeding in his tempo trax vehicle bearing Reg. No. KA-17-2162 and at that time he invited passengers for hire belonging to accused No.2. He left the place with the passengers at about 4.30 PM. It is further alleged that, at the time when the complainant was returning, the accused No.2 came in his goods rickshaw vehicle and intercepted the vehicle of the complainant and the accused Nos.1 to 3 dragged the complainant out from the tempo and assaulted him with hands and thereafter the complainant went to his house and informed the incident to CWs 1, 4, 8 and 11 and they altogether went to the house of the accused at Karadagi village. 4. It is further alleged that accused Nos.1 to 5 with a common object by forming an unlawful assembly by holding deadly weapons picked up quarrel with the complainant and his men. Accused No.1 assaulted one Holebasappa Talawar with Kandli, who came to solve the dispute. Accused No.1 also abused the said Holebasappa in filthy language by referring to his caste and thereby they have commi tted the offences. The injured was immediately taken to the hospital and a complaint has been registered by the Police in this behalf in Crime No.92/2009. After investigation charge sheet came to be filed against accused Nos. 1 to 5. 5. The learned Sessions Judge took cognizance and after hearing both the sides charge was framed and the accused pleaded not guilty and claimed to be tried and as such trial was fixed. To prove the case of the prosecution, 21 witnesses were examined and 31 documents so also 6 material objects were got marked. 1 to 5. 5. The learned Sessions Judge took cognizance and after hearing both the sides charge was framed and the accused pleaded not guilty and claimed to be tried and as such trial was fixed. To prove the case of the prosecution, 21 witnesses were examined and 31 documents so also 6 material objects were got marked. Thereafter the accused came to be examined by putting incriminating materials as against them but they denied the same. However, accused No.1 has given an explanation that the accused No.5 has caused injuries on the head of his sister by soda bottles and in that regard he has gone to Savanur Police Station for lodging complaint but the Police did not register the complaint instead arrested accused No.1 and falsely implicated in the case. The accused also produced six documents along with the statement recorded u/s 313 of Cr.P.C. After hearing both the sides the trial court convicted the accused. Challenging the quantum of sentence the State has preferred the appeal for enhancement of the sentence, whereas the accused are in appeal for their acquittal. 6. It is the contention of the learned counsel for the appellants-accused that the judgment of conviction and order of sentence passed by the trial court is perverse, contrary to law and materials placed on record and as such the same is liable to be set aside. Further, the first incident of assault had taken place at 4.30 p.m. at chillur village and the complainant party themselves had come to the place of the accused and committed assault. Even though the accused No.1 went to the Police station to file the complaint but the Police did not register the complaint but arrested him and sent to jail. The accused No.1 after his release from the jail filed complaint which was investigated and 'B' report came to be filed by the Police for which a protest petition was also filed by the accused persons. Hence, the act of the complainant and his men clearly show that they are the aggressors. Even the evidence would show that sister of the accused No.1 suffered injuries and during the course of investigation nowhere the investigating agency has brought on record the said fact. Though the prosecution has examined independent witnesses they have not supported the case of the prosecution and are treated as hostile. Even the evidence would show that sister of the accused No.1 suffered injuries and during the course of investigation nowhere the investigating agency has brought on record the said fact. Though the prosecution has examined independent witnesses they have not supported the case of the prosecution and are treated as hostile. But for the reasons best known to the prosecution the neighbours have not been examined by the Investigating Agency nor were cited as witnesses. Under such circumstances, the evidence produced is not trustworthy and reliable. 7. It is his further submission that the accused persons were not having any intention either to hurt or cause injuries to anybody. Further, the words used to abuse are in omnibus manner and no specific allegations have been made as to who exactly abused by taking name of the caste. In the first instance PW5 is neither belonging to complainant party nor the accused party but he is a stranger and no way concerned to the alleged incident. During the course of cross-examination of PW5 he has clearly admitted that he belonged to talawar community and the words used to abuse were "Valmiki and Pork eater". In that regard there is no connection nor an intention and even it will not amount to an offence attracting the provisions of the SC & ST Act . The evidence of PWs 2 and 3 is not believable and trustworthy. PW5 is also not a trustworthy and truthful witness and the injuries which have been said to have been suffered by PW2 are abrasions and simple injuries. Even when Pw5 in the first instance was taken to the hospital, he had no fractures but after three days he is said to have been suffered fracture which clearly goes to show the concoction and creation of the documents only for the purpose of the case. Accused Nos.2 to 5 have given one blow and the failure of the prosecution to give explanation regarding the injuries on the accused, then under such circumstances the plea of right of private of defence seems to be acceptable and the accused are entitled to be acquittal. 8. In order to substantiate his contention, the learned counsel for the appellants-accused relied upon the following decisions of the Hon'ble Supreme Court: 1. Ram Phal and Ors. Vs. State of Haryana, (1993) AIR SC 1979 ; 2. Sukumaran Vs. 8. In order to substantiate his contention, the learned counsel for the appellants-accused relied upon the following decisions of the Hon'ble Supreme Court: 1. Ram Phal and Ors. Vs. State of Haryana, (1993) AIR SC 1979 ; 2. Sukumaran Vs. State,1029 AIR SC 139 ; 3. Ashrafi vs. State of Uttar Pradesh, (2017) AIR SC 5819 4. Darshan Singh Vs. State of Punjab and Ors, (2010) AIR SC 1212 5. Pratap Vs. The State of Uttar Pradesh, (1976) AIR SC 966 It is his further submission that even when the alleged incident has taken place, the said act is without there being any intention. Under such circumstances, the provisions of sec. 326 of IPC and SC&ST Act are also not applicable. On these grounds he prayed to allow the appeal and acquit the accused. 9. Per contra, learned Addl. SPP vehemently argued and submi tted that the evidence of PW2 and PW5 clearly go to show that because of the earlier motive wherein the complainant has taken the passengers from the tempo of accused and when he was returning at that time accused Nos.1 to 3 have intercepted and dragged him out of the tempo and have assaulted and when subsequently all the complainant party went to the house of the accused they have assaulted and caused the injuries. The accused persons have abused by taking the name of the caste which is punishable under Section 3(2)(v) of the SC & ST Act and hence the quantum of punishment imposed by the learned trial Judge for each of the offences is not just and proper. The accused persons ought to have been convicted in proportion to the offences committed by them. Instead of that the trial Court has shown leniency while sentencing the respondents-accused. The prosecution evidence clearly goes to show that there are injured eyewi tnesses and their presence is also very much noted and their evidence cannot be ignored. Under such circumstances, the trial Court has rightly come to the conclusion and convicted the accused. On these grounds he prayed to allow the appeal preferred by the State and to dismiss the appeal filed by the respondents-accused. 10. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the trial Court records. 11. On these grounds he prayed to allow the appeal preferred by the State and to dismiss the appeal filed by the respondents-accused. 10. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the trial Court records. 11. In order to prove the case of the prosecution 21 witnesses have been examined. PW1 is the spot mahazar pancha to Ex.P.1 wherein the second accused was also in the vehicle and complainant-PW2 came there and he took the passengers of the vehicle of accused No.2 and he also deposed with regard to drawing of the mahazar-Ex.P.1 at the first incident. During the course of cross-examination he has deposed that, on that day only one signature has been obtained. He did not know what was written in the said paper, who has written it but only at the instance of Police he has signed on the said paper. In that light, the said evidence is not acceptable. 12. Pw2 is the complainant and he is a material witness to both the incidents. In his evidence he has deposed with regard to the fact that he came by driving the vehicle to Karadagi and there the accused No.2 was also in his vehicle. By stopping his vehicle accused No.2 sent the passengers and thereafter he went to Savanur side and there he handed over his vehicle to one Eranna Kalashetty and thereafter he was proceeding towards Karadagi in a tempo and at that time accused No.2 and his elder brother and younger brother came there and pulled him out of the tempo and assaulted. He further deposed that, thereafter he went to Karadagi village in the same vehicle and informed about the said incident to his uncle and when his uncle and others went to ask the accused, accused persons by holding kandli, axe and club tried to assault them and one Holebasappa also accompanied them. when accused No.1 tried to assault Holebasappa at that time he escaped and the blow hit the sister of accused No.1 and being enraged, the accused No.1 assaulted with Kandli to the said Holebasappa on his right stomach. As a result of the same he sustained injuries and immediately he was taken to the hospital. 13. He further deposed that he filed complaint as per Ex.P.2. As a result of the same he sustained injuries and immediately he was taken to the hospital. 13. He further deposed that he filed complaint as per Ex.P.2. this witness has been partly treated as hostile and during the course of cross-examination by the learned Public Prosecutor he has denied the suggestion that accused Nos.1 to 3 have assaulted at Chilaru village and he sustained injuries but he has admitted that when they went to ask to the house of the accused, they abused with filthy language and threatened with life with an intention to cause death. He has further admitted that the accused persons have abused by taking name of the caste to PW5- Holebasappa. The other suggestions have been denied. During the course of cross-examination he deposed that when they had been to the house of Allah Baksh, it was 5 pm and six persons went to that place and in the first instance four persons went and subsequently two persons joined them. They were there for 20 minutes. Many people have gathered there and they did not ask names of those persons. He has further admitted that when they had been to the house of the accused there was a scuffle and exchange of words but they did not abuse each other and there was a crowd like situation at the place of the incident and he do not know about the individual overt acts. 14. He has further admitted that sister of accused No.1 after receiving the assault was also brought to the hospital. This witness deposed that he do not know reading and writing and he knows only to sign. Except that, nothing has been brought on record with regard to the motive for the first incident. This witness is also a witness to the second incident. He has reiterated the evidence of PW2. This witness is also treated as partly hostile and in the crossexamination nothing has been elucidated so as to discard his evidence. 15. Pw4 is a panch witness to Ex.P.9-spot mahazar, place where the second incident has taken place wherein MOs 1 and 2 have been recovered. He is also a witness to Ex.P.11-recovery of MO2-axe and MO3- club at the instance of the accused. 15. Pw4 is a panch witness to Ex.P.9-spot mahazar, place where the second incident has taken place wherein MOs 1 and 2 have been recovered. He is also a witness to Ex.P.11-recovery of MO2-axe and MO3- club at the instance of the accused. This witness is also treated as hostile and cross-examined by the prosecution wherein he has admitted that he is known to CW1 and he is very much closely associated with him. The Police took his signature on two papers and he do not remember what has been written on it. 16. Pw5 is a material witness. He has deposed with regard to the first incident. He has deposed that they had been to the house of the accused to ask about the first incident and when they asked, the accused persons, all of a sudden came to assault and he escaped but the blow had hit the sister of accused No.1 subsequently, when he assaulted with Kandli it hit to his stomach and he sustained bleeding injuries. He was taken to Savanur hospital on a motorcycle. Except that he has not seen anything. All the accused persons together abused by saying that, he belong to valmiki community and a pork eater. This witness is treated as hostile and he has been cross-examined by the prosecution. During the course of his crossexamination by the accused he has admitted that, for having taken the tablets he was in a drowsy condition and the other suggestions have been denied by him. He further deposed that when his uncle-Eranna was making enquiry with the accused there was push and pull and in the said incident he and Eranna sustained injuries. He has further deposed that axe was there with brother of accused No.1-Syed, he do not know his name. He has further deposed that stick was there with the brother of accused No.1 and the accused No.1 was holding Kandli. It has been elicited that MO4 shirt was not torn when he was wearing it but admitted that, now it has been torn. He has further deposed that prior to the incident there was enemity between them. He has further admitted the fact that his surname is Talwar and he belongs to Talwar community. Except that, nothing has been elicited from the mouth of this witness. 17. He has further deposed that prior to the incident there was enemity between them. He has further admitted the fact that his surname is Talwar and he belongs to Talwar community. Except that, nothing has been elicited from the mouth of this witness. 17. Pws.6 to 9, 12, 14 and 15 are the eye witnesses to the alleged incident and they have not supported the case of the prosecution. They have been treated as hostile. PW7 is the seizure Mahazar panch to Ex.P13. Ex.P16 is the seizure of the clothes as per MOs.4 to 6. PW8 is a panch witness to Exs.P13 and 16. These two witnesses have not supported the case of the prosecution and they have been treated as hostile. 18. Pw16 is the doctor who has treated the injured in the first instance and has issued the wound certificate as per Exs.P24, 25 and 26. During the course of cross examination, he has admitted that lacerated wound may be caused if a person falls on the hard surface. He has also further admitted that abrasion be caused if a person comes in contact with any object. The injury found on the patient would be caused if MO.2 is used to assault him. He further admitted that if a person falls from the bicycle and on the hard object, there is a chance of sustaining similar injures as mentioned in Ex.P24. The other suggestions which have been made are denied. PW17 is the A.S.I. who registered the case as per Ex.P2 and has issued FIR as per Ex.P27. PW18 is the investigating officer who investigated the case and filed the charge sheet against the accused persons. During the course of cross examination, he has admitted that during the course of investigation, he did not made any enquires with the neigbourers and their statement has not been recorded. PW19 is also the investigating officer who partly investigated the case. PW20 is the P.S.I. who has assisted the investigating officer during the course of investigation. 19. Pw21 is the doctor who treated PW5 and has deposed that there was cut lacerated wound in the right inguinal region and she has given the first aid to him and discharged him on 27/5/2009. She has also further deposed that as per the X-Ray report he was not having any deformity. 19. Pw21 is the doctor who treated PW5 and has deposed that there was cut lacerated wound in the right inguinal region and she has given the first aid to him and discharged him on 27/5/2009. She has also further deposed that as per the X-Ray report he was not having any deformity. She has further deposed that she has issued medical certificate as per Ex.P25. She has also deposed that if a person falls on hard and rough surface the fracture which has been mentioned in Ex.P30 may be caused. Except that, nothing has been elicited from the mouth of this witness. 20. On perusal of the evidence, which has been produced before trial Court there are two instances which have taken place. In the first instance, when PW2 complainant was proceeding in his vehicle and when he came near Karadagi village, at that time, accused No.2 was also there and he has taken the passengers to his vehicle and proceeded to Savanur and when he was coming back in a tempo, at that time, accused Nos.1 to 3 intercepted his tempo and dragged him out of the said tempo and assaulted with hands. Thereafter, they went to the house and complainant also went to the house. Thereafter when they went near the house of the accused, the alleged incident has taken place. For having sustained injuries, injured witnesses have deposed with regard to specific overt acts. To corroborate the said evidence, the wound certificate has been produced at Ex.P26, therein it has been mentioned that he has suffered with abrasion over the left cheek. Except that, the complainant has not suffered with any injury and the Doctor has also opined that the said injury is simple in nature. In sofaras the said first incident is concerned, PW2-complainant has categorically deposed with regard to the first incident. But, during the course of cross examination, nothing has been elicited so as to discard the said evidence. In that light, the said evidence in sofaras the first incident which has taken place, when the complainant was returning from Savanur and accused Nos.1 to 3 dragged him out of tempo and have assaulted, is proved beyond reasonable doubt. Even during the course of cross-examination much has not been concentrated to the first incident. In that light, accused Nos.1 to 3 are liable to the said incident of assault. 21. Even during the course of cross-examination much has not been concentrated to the first incident. In that light, accused Nos.1 to 3 are liable to the said incident of assault. 21. Coming back to the second incident is concerned, the case of the prosecution itself goes to show that later, when the witnesses have gone to the house of accused at Karadagi village, accused Nos.1 to 5 have formed themselves into an unlawful assembly by holding deadly weapons, they have assaulted. But on perusal of the cross examination of PW-2, in his evidence, he has clearly deposed that when they went near the house of the accused there was exchange of words and so many persons have also gathered there and there was crowdy situation and nobody was knowing what they are doing and they are not clearly visible. The sister of accused No.1 has also sustained injury and she has been taken to the hospital. Even this evidence if it is seen along with the evidence of PW5, who is considered to be injured witness, in his evidence also he has deposed that he along with other witnesses had been to the house of the accused and he has also deposed that during the scuffle, there was push and pull and during that time, he has suffered with injuries and one Eranna sustained injuries. He has further deposed that axe was there with the elder brother of accused No.1 and stick was there with the younger brother of accused No.1 and accused No.1 was holding Kandli and he do not know what weapons were held by other accused persons. He has also admit ted that MO.4 shirt which was worn by him was not torn in the incident and now, it has been torn. 22. On perusal of the evidence, which has been produced in this behalf with reference to the second incident is concerned and even the documents which has been produced during the course of the statement recorded by the accused, it indicates that the accused persons have also suffered with the injuries and the sister of accused No.1 has also suffered with the injuries. During the course of investigation, when accused persons have also suffered with injuries, then under such circumstances, a duty cast upon the investigating officer to explain the injuries how they have suffered during the said scuffle. During the course of investigation, when accused persons have also suffered with injuries, then under such circumstances, a duty cast upon the investigating officer to explain the injuries how they have suffered during the said scuffle. If the prosecution fails to explain the injuries on the accused, then under such circumstances, the case of the prosecution has to fail and benefit of doubt has to be given. 23. Be that as it may, admittedly the case of the prosecution itself goes to show that immediately after the first instance, it is the complainant party who went and started to questioning the accused and in that light, this scuffle took place as deposed by accused Nos.2 and 5 and even in the said scuffle both the parties have suffered injuries. When the complainant and other parties have gone to the place of the accused, then under such circumstances, they are considered to be aggressors and not the accused persons. In this behalf, if the evidence which has been taken into consideration, then it cerates a doubt in the case of the prosecution and when doubt is going to be created in the case of the prosecution, then under such circumstances, the benefit of doubt has to be given to the accused, accused alone. 24. Even though during the course of evidence, PW5 has deposed that accused persons abused him by taking name of his caste, but he has deposed in omnibus stating all the accused abused him by taking the name of his caste. When his evidence is not specific who exactly has taken the name of the caste and abused him, then under such circumstances, the provisions of the SC/ST Act also does not attract. In the first instance, the prosecution has to prove that accused persons knowing that such person belongs to that caste and thereafter, with an intention to insult him he takes the name of the caste and abused. Then under such circumstances, the provisions of Section 3(2)(v) of the SC/ST (P.A) Act are attracted. In the instant case, on hand no such material has been produced by the prosecution to show that with an intention or knowledge, the accused persons have abused. Then under such circumstances, the provisions of Section 3(2)(v) of the SC/ST (P.A) Act are attracted. In the instant case, on hand no such material has been produced by the prosecution to show that with an intention or knowledge, the accused persons have abused. In the first instance, the words used itself does not attract that the accused persons have abused by taking the name of the caste and even if it has been taken, it is not referring to any specific accused and it is an omnibus words. Under such circumstances also, the said offence has not been proved by the prosecution beyond reasonable doubt. 25. Be that as it may, even the evidence of PW5 has not been corroborated with the evidence of other witnesses to this part of his evidence, though the said witnesses are said to have been present at the time of alleged incident. Even during the course of arguments, the learned counsel for the appellantaccused brought to the notice of the Court that the investigating officer-PW18 in his cross examination has clearly admitted the fact that during the course of investigation, he did not record the statement of the neighbouring residents and he has also not recorded the statement of sister of the accused No.1 who has suffered with injury admittedly in the same incident. Taking into consideration of the above said facts and circumstances, it creates a doubt in the case of the prosecution. Even though the accused persons have also filed the complaint, the same has not been registered and investigated. Subsequently, a private complaint has been filed and the investigating agency have filed 'B' report and the 'B' report also challenged by the accused persons. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the evidence which has been produced is not cogent and acceptable so as to bring home the guilt of the accused beyond all reasonable doubt insofar as second incident is concerned. Taking into consideration the above said facts and circumstances, we are of the considered opinion that the evidence which has been produced is not cogent and acceptable so as to bring home the guilt of the accused beyond all reasonable doubt insofar as second incident is concerned. When the prosecution evidence shows that the sister of accused No.1 has sustained the injuries and the accused who have dealt with only one blow on the injured, then under such circumstances, the plea of right to private defence taken by the accused seems to be acceptable and the accused are entitled to be given a benefit of doubt and are liable for acquittal for the offence alleged against the accused persons, in sofaras the second incident is concerned. But the prosecution has proved the guilt of the accused for the offence punishable under Section 323 of IPC in sofaras the first incident is concerned. 26. Taking into consideration the above said facts and circumstances, it is clear that the trial Court without looking into the nicety of the factual situation, has come to a wrong conclusion and wrongly convicted the accused and as such, it requires interference at the hands of this Court. In that light, we proceed to pass the following:- ORDER Crl.A.100158/2016 filed by accused Nos.1 to 5 is allowed in part. The impugned judgment of conviction and order of sentence passed in sofaras accused No.1 to 3 for the offence punishable under Section 323 of IPC is concerned, it is confirmed and in sofaras the offences punishable under Sections 143, 148, 149, 341, 326 of IPC and also under Sections 3(1)(x) and 3(2)(v) of SC/ST (PA) Act is concerned they have been acquitted. Accused Nos.1 to 3 are convicted for the offence punishable under Section 323 of IPC and they are sentenced to undergo imprisonment for the period which they have already undergone and to pay fine of Rs.1,000/- each with default sentence of one month. At this juncture, the learned counsel for the appellant-accused submitted that accused No.1 is a practicing Advocate and the first incident which has been taken place is without there being any intention. It is his further submission that if the said accused persons are convicted, his career is going to be effected. At this juncture, the learned counsel for the appellant-accused submitted that accused No.1 is a practicing Advocate and the first incident which has been taken place is without there being any intention. It is his further submission that if the said accused persons are convicted, his career is going to be effected. On perusal of the judgment of the trial Court, it reveals that the report of the Probationary Officer has been obtained and he has stated that the accused are first offenders. They are living peacefully in their locality and accused No.1 is practicing Advocate at Belgaum. Keeping in view of the said facts and circumstances, since accused Nos.1 to 3 have been convicted only for causing simple hurt and the alleged offence is not punishable with punishment for more than seven years, in that light, we are of the considered opinion that accused Nos.1 to 3 who have been convicted for the offence punishable under Section 323 of IPC, if they have been extended the benefit of the provision of Probation of Offenders' Act and release with probation, then it is going to meet the ends of justice. In that light, accused Nos.1 to 3 are hereby directed to execute a bond for a sum of one lakh rupees to maintain peace and order for a period of six months. For the discussion held above, Crl.A.No.100285/2016 preferred by the State is dismissed.