Criminal Appeal No. 520 of 2013 · The High Court · 2013
Case Details
- 1 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 520 OF 2013 (C) BETWEEN: SRI. CHANDRASHEKARA S/O SHIVAPPA AGED ABOUT 38 YEARS KANCHAGARA MANE HARNAHALLI HOBLI MALLAPURA VILLAGE SHIMOGA TALUK & DISTRICT (BY SRI. JAGADEESHACHARI, ADVOCATE) AND: STATE OF KARNATAKA BY ASSISTANT SUPERINTENDENT OF POLICE KUNDAPURA SUB-DIVISION KUNDAPURA, UDUPI DISTRICT REP. BY ITS STATE PUBLIC PROSECUTORS HIGH COURT BUILDING BANGALORE-01 (BY SRI. CHANNAPPA ERAPPA, HCGP) Digitally signed by SHAKAMBARI Location: High Court of Karnataka …APPELLANT …RESPONDENT THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 18.04.2013 PASSED BY THE DIST. & S.J., UDUPI IN SPL. CASE NO.13/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 323 OF IPC AND SEC.3(1)(X) OF SC/ST (POA) ACT. - 2 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT Appellant-accused has assailed the judgment of conviction and order of sentence dated 18th April 2013 passed in Special Case No.13/2011 by the District and Sessions Judge, Udupi by preferring this appeal wherein, he was convicted and sentenced for the offences punishable under Section 323 of IPC and Section 3(1)(x) of SCs and STs (Prevention of Atrocities) Act, 1989 (in short `the Act'). Facts of the Case: 2. That the Deputy Superintendent of Police filed a charge sheet against the sole accused for the offence punishable under Section 323 of IPC and Section 3(1)(x) of the SC & ST (POA) Act supra on the ground that, one A.K.Shivaraja (PW.2) filed a complaint, alleging that, in the address so stated in the complaint, he is residing with - 3 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 his wife Manjula and children Akshatha aged 5 years, Akash 3 years and Mamatha one year. He is a vegetable vendor and used to go to various villages for the purpose of selling vegetables on sandy days. It is alleged that, on 24.8.2011, he had been to Siddapura village market that, situated in Kundapura Taluk. In the said Market, he was selling the vegetables along with his worker Raju Naik and his driver Raghu. It was about 9.00 a.m. at that time. By his side, the accused, a resident of his village was also doing the vegetable business. He came to the complainant and told that, a crate filled with tomato belonged to him and also told that, the said crate was given by one Chandra and why and how that, crate had come to the complainant. At that time, complainant asked the accused to enquire with said Chandra. Having heard such words, accused addressed the complaint as '¯Éà ªÀiÁ¢UÀ ¸ÀÆ¼É ªÀÄUÀ£ÉÃ' and also told that, this complainant had stolen the said crate, but even then, he is talking against him. He abused him in filthy language and also slapped the complainant, - 4 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 and also treaded him. The complainant lost balance and fell down. He sustained injuries on his left knee. Accused also treaded the complainant on his stomach. Because of this, complainant sustained injuries and suffered pain. The persons with the complainant by name Rama Naika and Raghu and also other vegetable vendors rescued the complainant from the clutches of accused. Thereafter, the complainant was taken to Meggan Hospital, Shivamogga in a pick-up vegetable vehicle. There he took treatment as inpatient. Because of the said incident, complainant had sustained loss of his business, so also injuries and pain. With these allegations, he gave his statement on 26.8.2011 at 6.00 p.m. when he was taking treatment at Meggan Hospital before the Police. Based upon the same, a complaint was registered against the accused for the aforesaid offences and the criminal law was set in motion. The investigation officer, on completion of investigation filed charge sheet against the accused as stated supra. - 5 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 3. Before the Special Court, to substantiate the allegations made in the complaint, prosecution in all examined six witnesses (PWs.1 to 6) and got marked 10 documents (Ex.P1 to P9) and closed prosecution evidence. Thereafter, the accused was questioned under Section 313 of Cr.PC. so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence. 4. The learned Special Court on hearing the arguments and on evaluation of the evidence found the accused guilty of committing the aforesaid offences and sentenced him as under: "The accused is sentenced to undergo S.I. for a period of 6 months with a fine of Rs.500/- for the offence under section 323 of I.P.C. The accused is further sentenced to undergo S.I. for a period of 6 months and to pay a fine of Rs.500/- for the offence under Section 3(1)(X) of S.C/S.T (POA), Act. - 6 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 In default of pay the fine, under section 323 of I.P.C and under section 3(1)(X) of S.C/S.T(POA), Act, the accused shall further undergo S.I. for a period of 2 weeks each. Both sentences to run concurrently." 5. This is how now the accused-appellant is before this Court challenging the said judgment. 6. The learned counsel for the appellant-accused
Legal Reasoning
Sri Jagadeesh Achari submits that, except the self-serving evidence of complainant and his own workers, there is no evidence placed on record to prove, that really there was an incident in the manner stated by the complainant. He submits that, there is delay in filing the complaint which is not explained by the complainant PW.2. The trial Court has failed to consider the statements of witnesses. The certificate so produced by the defence marked at Ex.D1 and D2 are not believed. Based on version of PWs.2 and 3, trial Court has wrongly convicted the accused. It is his submission that, when the Amasebail Police Station received the email from Meggan Hospital, the said mail IP - 7 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 address was not disclosed. There is no reference to the said email received by the police station with regard to the medico-legal case registered by the said Meggan Hospital. Panchas of scene of offence have not supported the case of prosecution. The learned counsel for the appellant pointed out contradictions, omissions and discrepancies in the evidence of prosecution witnesses. He submits that, in view of the grounds urged in the appeal memo, as well as inconsistencies brought on record coupled with contradictions and omissions in the evidence of witnesses, the impugned judgment suffers from illegality and infirmity. There is no proper appreciation of evidence by the learned trial Court. Hence, he would submit to allow this appeal and set aside the impugned judgment. 7. Per contra, the learned counsel for respondent- State justified the reasons and findings of the Special Court. He would submit that, the complainant is the victim and he is the best person to say who has committed the offence against him. He would submit that, in the said - 8 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 incident, complainant had sustained injuries as noticed in the wound certificate because of assault by the accused. There was using of abusive language by taking the caste of the complainant as he belongs to schedule caste and there is clear violation of the provisions of the said Act (supra). He would submit that, there is no merit in this appeal and prays to dismiss the same. 8. I have given my anxious consideration to the facts of the case, considered the submissions of both side, perused the records. In view of rival submissions of both the side, the only point that arises for consideration is: "Whether the impugned judgment of Special Court suffers from any illegality, infirmity and without proper appreciation of evidence adduced by the prosecution?" 9. To prove the offence punishable under Section 323 of IPC, the prosecution is under obligation to prove that, in the said incident, the complainant had sustained simple injuries which has caused him pain. So also the - 9 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 prosecution has to prove that, intentionally accused insulted the complainant with an intention to humiliate the complainant being the member of schedule caste/scheduled tribe in any place within the public view. 10. PW.2 is the complainant and he is specific about the so called incident that took place on 24.8.2011 in the morning hours. He corroborates the contents of his complaint as well as panchanama. In the cross- examination, he stated that, for the last eight years before filling of the complaint, he is doing the vegetable vending business and he knows the accused. Every Wednesday is the sandy day for Siddapura Village. According to him, he went to the market at 8.00 a.m. on that day, and started business. After going to the market, he started removing the vegetable crates and after getting them down, accused came and started galata by stating that, the crate belongs to him. He states that, on that day, at 6.00 a.m. he got down vegetable bags and put them by the side and at 9.00 a.m. when he was removing the tomato crates, - 10 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 accused came there and started galata. Accused was also doing the similar vegetable business. He stated that, a Bolero taxi was hired by him owned by one Raghavendra. Before getting down the tomato crates, accused started galata. According to him, after boarding the vehicle and dragging the crate, accused started quarreling with him. He stated that, in the said market at that time, there were no vegetable customers and the customers come to the market after 10.00 a.m. According to him, himself, accused and others were present. For the first time, he stated that, after assaulting him, he lost his consciousness, thereafter; he does not know what had happened. After pouring drinking water on his face, he regained consciousness. After one hour, he regained full consciousness when he was put in van. He further stated that, as he was unconscious, he cannot say who were all come there. According to him, from Siddapura, Meggan Hospital and Shivamogga is about 140 kms away. He has no knowledge that, whether at Siddapura town, hospitals are there or not. According to him, on the following day of - 11 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 admitting to the hospital, police came and took his statement. Except filing complaint, he had not given any statement before the police. He stated that, he had not stolen the crate of the accused. Further he stated that, sometimes there is possibility of exchange of such crates. Even he denied suggestion that, because of he assaulting the accused, a complaint was filed against him. Further, he deposed that, at Kundapura, the said tomato crates are sold in wholesale. He denied the suggestion that, the accused had not abused him. 11. On reading the evidence of this PW.2, the complainant, we find improved evidence with that of the complaint allegations with regard to the said incident. As per the complaint allegations, the incident took place on 24.8.2011 at 9.00 a.m. He lodged a complaint at 6.00 p.m. on 26.8.2011. There is delay of about 2 1/2 days in filing the complaint. There is no explanation in (Ex.P2) the complaint, regarding delay, so also in the evidence of PW.2. Though near Siddapura, the police station is very - 12 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 much available, he has not lodged any complaint. Non- explanation with regard to the delay shows that, after a thorough discussion, the complainant might have filed a complaint against the accused. If such evidence is placed on record, it requires corroboration. 12. PW.1 Dr.S.H.Chandrappa, is the Medical Officer of Meggan Hospital. According to his evidence, on 24.8.2011 at 1.25 p.m., complainant came to his hospital with a history of assault by one Chandrashekhar at Siddapura and noticed the injuries on the person of the complainant as stated in Ex.P1. In all three injuries were suffered by the complainant. It is the evidence of complainant that, he sustained pain in his stomach. But, Ex.P1 is silent to that effect. Certain simple injuries are noticed by the doctor. In the cross-examination, PW.1 stated that, injury nos.1 and 2 may be caused because of self infliction and injury no.3 may be caused when a person drags a heavy article. A small treatment is sufficient for the same. But, this PW.2 had taken - 13 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 treatment as an in-patient for two days. PW.2 never tells that, he was in the hospital for two days as in-patient. Thus, we find inconsistent evidence with full of contradictions and omissions. 13. PW.3 Raju Naika, was the worker under PW.2 and deposed with regard to the said incident. But, as per his own evidence, he came to know about the said incident when he was taking breakfast in the hotel. But, PW.2 states that, when the said incident took place, this PW.3 Raju Naika was present and he rescued him. Therefore, evidence of this PW.3 cannot be stated to be a truthful evidence to believe that, he has really witnessed the said incident. 14. PW.4 is the owner and driver of Bolero vehicles who transported the vegetable of the complainant and deposed of galata between complainant and accused with regard to missing of tomato crate. He deposed that, accused took his crate and assaulted the complainant by using hands on the person of the complainant and also - 14 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 abused him in filthy language by taking his caste. Even he stated that, complainant fell down and accused treaded complainant and he lost his consciousness. Thereafter, he was taken to Shivamogga Meggan Hospital. He admitted that, complainant always hires his Bolero vehicle. According to him, the said incident took place at the time of unloading the vegetable. He said, galata took place for half an hour. He stated that, complainant had not stolen the said crate and even he stated that, whether the said crate belongs to the accused or not, there is no guarantee. 15. Further, he deposed that, the galata was completed within five minutes. After complainant loosing his consciousness, he took him to the Shivamogga hospital in his Bolero vehicle and after sprinkling water on his face, he regained his consciousness. 16. According to him, he alone rescued the complainant from the clutches of accused and nobody came forward. Further, he stated that, along with accused, the other persons also came to assault complainant. To - 15 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 this effect evidence of PW.2 is silent. Thus, we find the evidence of this PW.4 is quite inconsistent with that of evidence of PWs.2 and 3. 17. PW.5 Shekhar, the then Head Constable of Shankaranarayana Police Station had gone to the Meggan Hospital and recorded the statement of complainant as instructed by his superior officer. Based upon that, a complaint was registered. To the extent of recording the statement of complainant, his evidence has to be accepted. 18. PW.6 Jayanth M., was the then PSI of Shankaranarayana Police station. He stated that, from the Meggan Hospital, he received the MLC intimation through Amasebail Police Station and accordingly, he deputed his staff to visit the hospital and record the statement of the injured. This witness had conducted part of investigation. According to his cross-examination, the officials of Amasebail police station informed orally through telephone about the MLC intimation sent by the hospital at 9.45 a.m. - 16 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 on 26.8.2011. He had no idea about receipt of email. According to him, ASP had not visited his police Station, scene of offence is shown by the panchayathdars. Thus, we find that, he had just accompanied the investigation agency. 19. On scrupulous reading of the entire evidence of the witnesses examined by the prosecution, except the self-serving evidence of PW.2 and interested evidence of PW.4, there is no evidence placed on record to show that, really such an incident had taken place in the manner alleged by the complainant. There is delay in filing the complaint which is fatal to the case of the prosecution. We find that, there are material contradictions, omissions and discrepancies in the evidence adduced by the prosecution. Thus, the prosecution case suffers from material particulars. If the evidence of PW.1 is believed, then the evidence of PW.4 cannot be believed. Though PW.3 has been branded as an eye witness but, in fact, he was not present when the alleged incident took place. According to - 17 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 him, he came to know about the said incident when he was taking his breakfast in a hotel. He had not rescued the complainant. But, complainant PW.2 tells that, PW.3 rescued him along with PW.4. Even PW.4 never said that, PW.3 was present there. Thus, we find that, the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. The prosecution has not explained the contradictions, omissions and discrepancies brought on record in the cross-examination. There is no explanation offered in filing the complaint after 2 and half days though PW.1 medically examined the complainant on the alleged date of incident at 1.25 p.m at Meggan Hospital and intimation was sent to the police. 20. The learned Special Court has not properly appreciated the evidence placed on record by the prosecution and has wrongly convicted and sentenced accused. Thus, the impugned judgment suffers from infirmities and illegalities and requires interference by this Court. The appeal so filed by the appellant deserves to be - 18 - NC: 2025:KHC:15548 CRL.A No. 520 of 2013 allowed and impugned judgment of the Special Court is liable to be set aside. 21. Resultantly, I pass the following:
Decision
ORDER (i) Appeal is allowed. (ii) Impugned judgment in Special Case No.13/2011 dated 18.04.2013 passed by the District and Sessions Judge, Udupi, is hereby set aside. (iii) Consequentially, accused is acquitted of the charges punishable under Section 323 of IPC and Section 3(1)(x) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. (iv) Bail bonds if any, stand cancelled. (v) He is set at liberty. (vi) Send back the trial Court records along with copy of this judgment forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk, List No.: 1 Sl No.: 25