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Karnataka High Court · body

2020 DIGILAW 389 (KAR)

Narasappa And Others v. State

2020-02-11

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT 1. The appellants were the accused in the Court of the learned Special/Sessions Judge at Yadgiri (hereinafter for brevity referred to as 'Trial Court') in Sessions Case No.106/2010, who were convicted by the judgment of conviction dated 13-06-2012 and order on sentence dated 16-06-2012 of the said Court for the offences punishable under Sections 447, 323, 504 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and Sections 3(1)(x) and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter for brevity referred to as 'SC and ST Act') and sentenced them accordingly. It is the said judgment of conviction and order on sentence, the accused have challenged in this appeal. 2. The summary of the case of the prosecution in the Court below is that, on 21-08-2010, when complainant - Devamma along with her son Hanamanta were in their land bearing Survey No.118 of Rachanahalli, within the limits of respondent - Police Station, the accused, in furtherance of their common intention along with their bullock cart, criminally trespassed into the agricultural field of the complainant and when objected to by the complainant and her son, they assaulted both of them, causing hurt to them and also abused them taking the name of their caste and thus, have committed the alleged offences. The charges were framed against the accused for the offences punishable under Sections 447, 323, 504 read with Section 34 of IPC and under Sections 3(1)(x) and 3(1)(xi) of the SC and ST Act. 3. Since the accused pleaded not guilty they were tried wherein the prosecution examined ten witnesses from PW-1 to PW-10 and got marked documents from Exs.P-1 to P-8(a). No Material Objects were marked. From the accused side, neither any witness was examined nor any documents were marked as exhibits. 4. The Trial Court, after hearing both side, by its impugned judgment of conviction and order on sentence, convicted the accused for the alleged offences and sentenced them accordingly. 5. The respondent State is being represented by learned High Court Government Pleader. 6. The records from the Court below were called for and the same are placed before this Court. 7. Heard the arguments from both side and perused the materials placed before this Court including the records from the Court below. 8. 5. The respondent State is being represented by learned High Court Government Pleader. 6. The records from the Court below were called for and the same are placed before this Court. 7. Heard the arguments from both side and perused the materials placed before this Court including the records from the Court below. 8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court. 9. The point that arises for my consideration in this appeal is:- 'Whether the prosecution has proved that, on 21-08-2010 at about 10:15 a.m., the accused, in furtherance of their common intention, have criminally trespassed into the agricultural field of the complainant and had intentionally insulted the complainant by taking the name of her caste as Holeya' (scheduled caste) and also assaulted her and when her son Hanamanta is said to have rushed to the rescue of his mother Devamma, he was also assaulted by the accused and thereby committed the offences punishable under Sections 447, 323, 504 read with 34 of IPC and Sections 3(1)(x) and 3(1)(xi) of the SC and ST Act? 10. It is not in dispute that the complainant Devamma, who was examined as PW-2 and another alleged injured witness Hanamanta who is said to be the son of the complainant Devamma belong to the Scheduled Caste and all the three accused do not belong to either Scheduled Caste or Scheduled Tribe. The evidence of the jurisdictional Tahsildar as PW-1 and the Caste Certificate said to have been issued by him as per Ex.P-1 is not in dispute. 11. Regarding the incident, the primary witness examined by the prosecution are PW-2 (complainant) Devamma, PW-3 Hanamanta, PW-4 Rudragouda and PW-5 Basayya Swamy. 12. PW-2 and PW-3 were projected as the injured in the alleged incident. Both the witnesses have given their evidence supporting the case of the prosecution. Both of them in their examination-inchief, have stated that on the alleged date of incident, while both of them were at work in their agricultural field, all the three accused who were hitherto making use of the land of the complainant as an approach road to their land and was being objected to the same by the complainants, once again, attempted to repeat the same act, by entering into the land of the accused with their bullock cart. Both the witnesses have stated that PW-2 Devamma the complainant stopped the bullock cart and objected for the accused making use of their land. At that moment, the accused No.3 Sabamma is said to have held the complainant firmly enabling accused Nos.1 and 2 to assault her with their acts. All the three accused are also said to have shouted at the complainant by taking the name of her caste by calling her as holeya soole (a scheduled caste bitch). Both the witnesses, i.e. PW-2 and PW-3 have further stated that looking at the incident, PW-3 who was also in the same land when rushed to the rescue of his mother Devamma, he was also assaulted by the accused. However, at the intervention of PW-4 and PW-5, the accused left the place. Both these witnesses were subjected to cross-examination from the accused side wherein they adhered to their original version. 13. The other two witnesses examined by the prosecution in connection with proving the alleged incident are PW-4 Rudragouda and PW-5 Basayya Swamy. According to the prosecution, PW-4 Rudragouda was the cultivator of the land of PW-2 on crop-sharing basis, as such, he was also present in the said field when the incident had taken place and he, joined by PW-5 resolved the quarrel. However, the said witness in his examination-in-chief itself has though stated that he was cultivating the land of PW-2 on crop-sharing basis, but he has expressed his ignorance about the alleged incident by stating that on the date of the alleged incident, he was not in the village. After treating him as hostile though the prosecution was permitted to cross-examine, still, the prosecution could not able to get any support from the said witness. 14. PW-5 Basayya Swamy has stated that he is the resident of the same Village Rachanahalli and knows the accused as well the complainant and her son. On the date of the incident, he has seen the accused along with the goods in their bullock cart passing through his land and entering the land of complainant Devamma and said Devamma objecting to the same. However, he has stated that he does not know as to what happened thereafter. He specifically stated that he does not know anything about the alleged quarrel and has not seen the accused assaulting the complainant. However, he has stated that he does not know as to what happened thereafter. He specifically stated that he does not know anything about the alleged quarrel and has not seen the accused assaulting the complainant. Even after treating him as hostile, the prosecution though cross-examined him, still, it could not get any further support from the witness. The witness was cross-examined from the accused side and denial suggestions made to him were not admitted as true by the witness. 15. Apart form the above material witnesses, the rest of the witnesses includes witness for scene of offence panchanama who were examined as PW-6 and PW-7, however, neither of them supported the case of the prosecution. 16. PW-8 the Police Constable has spoken about he carrying the First Information Report (FIR) from the Police Station and submitting the same to the Magistrate. 17. PW-10 Ravindranath, the Police Sub- Iinspector of the respondent Police Station has stated about he receiving the first information lodged by Devamma and registering it in their Station Crime No.93/2010 and sending the FIR to the Court. 18. PW-9 Deputy Superintendent of Police has stated about he conducting the investigation in this matter. 19. Learned counsel for the appellants in his argument submitted that, there is a delay of nearly eight hours in lodging the complaint, which, at the inception, imbibes a suspicion in the case of the prosecution. Further, there is no corroboration in the evidence between PW-2 and PW-3 about the alleged incident. He also submitted that though PW-2 Devamma has stated that, after the incident she went to the Government Hospital, the Investigating Officer has neither produced any Wound Certificate nor examined the Doctor alleged to have treated the complainant (PW-2), as such, it gives a serious doubt about the alleged incident and the alleged hurt said to have been sustained by PW-2 and PW-3. He also submitted that no independent witnesses have supported the case of the prosecution, as such the entire case of the prosecution is clouded with doubt, the benefit of which is required to be extended to the accused/appellants. 20. He also submitted that no independent witnesses have supported the case of the prosecution, as such the entire case of the prosecution is clouded with doubt, the benefit of which is required to be extended to the accused/appellants. 20. The learned High Court Government Pleader appearing for respondent State in his argument submitted that PW-2 and PW-3 being the injured witnesses have given a clear and complete account of the incident and have explained the role of each of the accused in assaulting them, as such, even though PW-4 and PW-5 have not supported the case of the prosecution, still, the evidence of the injured witnesses is sufficient to prove the guilt against the accused. He further submits that the non-production of the Wound certificate or non-seizing of any articles is not fatal to the case of the prosecution, that too, when according to the complainant, in her complaint, no weapon much less a stick was used in the commission of the crime. 21. Though a superficial reading of the evidence of PW-2 and PW-3 would give an impression that, both the witnesses claiming themselves to be the injured witnesses have supported the case of the prosecution, but, their evidence requires to be analysed thoroughly. No doubt, both PW-2 and PW-3 have stated about the accused entering their land with the bullock cart and PW-2 objecting to the same, at which, the accused assaulting her and abusing her in filthy language taking the name of her caste. 22. PW-5 also has stated that on the alleged date of incident, the accused first entered his land along with their bullock cart and then entered the land of the complainant (PW-2). Though denial suggestions were made in the cross-examination of all the three witnesses on the point, however, merely because of the alleged denial suggestion, the statement of the witnesses, more particularly, of PW-5 that the accused had entered the land of the complainant along with their bullock cart, cannot be disbelieved. As such, it stands proved that on the date of alleged incident and at that time, the accused entered the land of PW-2 (complainant) with their bullock cart, however, whether the mere entering into others land would itself constitute an offence of criminal trespass punishable under Section 447 of IPC, is a point to be looked into. As such, it stands proved that on the date of alleged incident and at that time, the accused entered the land of PW-2 (complainant) with their bullock cart, however, whether the mere entering into others land would itself constitute an offence of criminal trespass punishable under Section 447 of IPC, is a point to be looked into. The said Section requires that such an alleged trespass into the land must be with an intention to commit an offence or to intimidate, or insult or annoy any person in possession of such property. A mere entrance with absence of any such intention would not constitute such an alleged trespass into a criminal trespass. 23. In the instant case, neither PW-2 nor PW-3 anywhere has whispered that accused entered their land with their bullock cart with an intention to commit an offence or to intimidate them or to insult them. On the other hand, it is the case of the prosecution also that it is only after the accused entered the land and when they were obstructed by the accused, the alleged incident of the alleged assault upon PW-2 and PW-3 has taken place. As such, at the time of the accused entering into the land/field of the complainant, there is lack of any criminal intention to cause any offence or the incidental acts which are ingredients of Section 441 of IPC. 24. About the event/incident which is alleged to have taken place in the land of PW-2, after the alleged entering of the accused also, the evidence of PW-2 and PW-3 appears to be lacking in corroboration or uniformity. 25. PW-2 the complainant who is also the mother of PW-3 has stated that the accused after entering into her land and when she objected, the accused assaulted her and when her son Hanamata came to her rescue, he was also assaulted by accused Nos.1 and 2 with a cart pole/stick (a wooden stick like thing used in the body of the bullock cart). 26. The said complainant claims herself to be an injured eye witness in the incident. However, PW-3 the other alleged injured eye witness to the incident who is also the son of PW-2 has nowhere stated about the use of any such article like cart pole by any of the accused in their alleged assault upon him. 26. The said complainant claims herself to be an injured eye witness in the incident. However, PW-3 the other alleged injured eye witness to the incident who is also the son of PW-2 has nowhere stated about the use of any such article like cart pole by any of the accused in their alleged assault upon him. He has only stated that the accused Nos.1 and 2 assaulted him with their hands and leg. As such, the very important stage in the alleged incident, according to the prosecution being the accused assaulting PW-2 and PW-3, since has not been uniformly stated by the alleged injured witnesses, the very occurrence of the incident in the manner projected by the prosecution, creates a serious doubt in it. 27. Secondly, according to the prosecution, PW-4 - Rudragouda was the cultivator of the land of PW-2 on crop-sharing basis, who also in his examination-in-chief has stated the same, which is not in dispute. If that were to be the case, when the prosecution has clearly stated that Rudragouda was also present in the scene of offence and that too he joined by PW-5 have resolved the quarrel, then, the question arises as to, why PW-4 did not support the case of the prosecution. On the other hand, he has categorically stated that, he was not in the village on the said day. The prosecution could not able to elicit from him that his statement to the effect that, he was not in the village on the date of incident, was a false statement made by him, as such, the version of PW-2 and PW-3 lacks the support of an alleged eye witness, i.e. PW-4. 28. PW-5 is also not an exception to that of what PW-4 has done. The only improvement with respect to PW-5 is that, he has spoken about the accused entering the land of PW-2 and being objected to the same by PW-2. At this stage, a doubt arises as to, had he really seen the accused entering the land of PW-2 after passing through his land and PW-2 objecting to the same, it was expected, as a natural consequence that, he would have seen the reaction or the alleged obstruction made by PW-2. This factor would have been the common factor in the countryside in this region. This factor would have been the common factor in the countryside in this region. However, in the instant case, even though PW-5 says that he noticed PW-2 objecting to the accused about they entering her field, still, the witness has stated that, he does not know what happened thereafter. At least, he has not even stated that he had left the place before the quarrel could commence. The prosecution could not elicit any detail from the witness on the said point, as such it remains as a doubt about the occurrence of the alleged incident as projected by the prosecution. 29. In that circumstance, when the two independent witnesses who were projected to be present in the place of incident, resolved the quarrel and rescued the injured witnesses have not supported the case of the prosecution and when there is no consonance in the evidence of PW-2 and PW-3, inter se, with regard to the manner of occurrence of incident, it is not safe to believe solely upon the evidence of PW-2 and PW-3 though they claim to be the injured witnesses and to hold the accused guilty of the alleged offences. 30. In addition to the above, it also cannot be ignored of the fact that, PW-2 has stated that after the incident, she went to a Government Hospital and took treatment thereon. However, there is no whisper in the entire charge sheet about PW-2(complainant) taking treatment in the Hospital. Had she really taken the treatment in the Hospital, the Investigating Officer should have collected the necessary Medical Certificate or Wound Certificate and shown the Doctor as a charge sheet witness and examined him. Since the Investigating Officer has not whispered anything on the point, the statement of PW-2 that she went to a Government Hospital and took treatment after the incident proves to be not true. So also, her entire evidence also proves to be not safe to bank upon. 31. Added to the above, it also cannot be ignored of the fact that, there is a delay of nearly eight hours in lodging the first information by the complainant after the incident. No where the prosecution has brought the reason for the alleged delay. No attempt was made in that regard either in the evidence of PW-2 or in the evidence of the Investigating Officer. No where the prosecution has brought the reason for the alleged delay. No attempt was made in that regard either in the evidence of PW-2 or in the evidence of the Investigating Officer. On the other hand, the said PW-2 - the complainant in her cross-examination has stated that, the Police Station was at about eight kilometers from her village. Still, the delay in lodging the complaint has not been explained by the prosecution. This factor also contributes in suspecting the case of the prosecution. All these aspects clearly go to show that, the case of the prosecution is not without any doubt, rather it is carrying with it some serious doubts which make them unsafe to rely upon and to hold the accused guilty of the same. On the other hand, the accused deserve the benefit of doubt in the case. 32. However the Trial Court even after noticing that the alleged eye witness have not supported the case of the prosecution, has held that, the evidence of PW-2 and PW-3 can be relied upon and without noticing the discrepancies in their evidence as well short of fulfilling the ingredients of Section 447 of IPC in the evidence of the prosecution, it proceeded to pronounce the judgment of conviction, which act of the trial Court now proves to be not justifiable in the analysis of the evidence as made above. Accordingly, I proceed to pass the following: ORDER [I] The appeal is allowed; [II] The impugned judgment of conviction dated 13-06-2012 and order on sentence dated 16-06-2012 in Special Case No.106/2010, passed by the learned Special/Sessions Judge at Yadgiri, is set aside; [III] The accused appellants, i.e. (1) Narasappa, S/o. Mareppa Yarra, Aged about 22 years, (2) Mallappa S/o. Mareppa Yarra, aged about 23 years, and (3) Smt. Sabamma W/o. Mareppa Yarra, aged about 50 years, all residents of Rachanahalli, Tq. and Dist. Yadgiri, are hereby acquitted of the offences punishable under Sections 447, 323, 504 read with Section 34 of the Indian Penal Code, 1860 and Sections 3(1)(x) and 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; [IV] The bail bonds, if any, executed by the accused shall stand cancelled; [V] The fine amount deposited by the accused, if any, be returned to them after the period of appeal and if no appeal is preferred. Registry to transmit a copy of this judgment along with the trial Court records to the trial Court, without delay.