As per Rule 7 of SC/ST (Prevention of Atrocities) Act, 1989, an offence committed under the Act shall be investigated by a Police officer not below the rank of a Deputy Superintended of Police. The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. {Para 29}
30. There is no document on record to show that he was appointed by Superintendent of Police to investigate this case. On perusal of his evidence, he has not at all stated anything with regard to PW1 that he was on duty and how his official duty was obstructed on account of incident in question. It is important to note that neither PW1 nor PW5 deposed with regard to the deterring by the accused in performing the official duties of PW1. There is no presumption as such with the official in the office during the office hours should be presumed to be on duty. In order to prove the offence under Section 353 of IPC, the prosecution has to prove PW1 was on official duty and the act committed by the accused deterred him from doing his duty. In the absence of these ingredients the accused could not have even convicted for the offence punishable under Section 353 of IPC. Though the Investigating Officer obtained Ex. P9, but it is not stated on what basis Ex. P9 was issued and what was the duty the complainant was doing at the time of incident. No inference can be drawn from the document that PWs. 1 and 2 were discharging any duty as such. In Ex. P9, the name of the person, who had signed is not mentioned or no office seal is attested to it. He did not know whose custody the movement register there in the office nor he has verified the same. Who obtained Ex. P9 is not forthcoming. There is no serial number of the said letter nor the name of staff who obtained and furnished the document to Investigating Officer, is not mentioned.
IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)
Cri. A. No. 2800 of 2010
Decided On: 15.05.2019
Ashok Sangappa Sidareddi Vs. State of Karnataka
Hon'ble Judges/Coram:
A.S. Bellunke, J.
Citation: 2019 CRLJ 4052, AIRONLINE 2019 Kar 458,MANU/KA/7633/2019.
1. This appeal filed by the appellant-accused against the judgment and order of conviction dated 20.09.2010, passed by the Special (Sessions) Judge, Bagalkot, for the offences punishable under Sections 323, 353 and 504 of IPC and for the offence punishable under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act.
2. Brief facts of the case are as under:
The complainant was working as Assistant Engineer in Panchayatraj Engineering Section, District Administrative Bhavan, Navanagar, Bagalkot. On 19.08.2009 at about 4.30 P.M. the complainant was on duty at that time, the accused approached the complainant and initiated quarrel with respect to a tender of Hunnur Clean Village. He abused the complainant in filthy language and assaulted him voluntarily. At that time, a driver working in the said office i.e., P.W. 2(C.W. 4) - Mohan Dodamani interfered and tried to pacify the accused. The accused assaulted the said Mohan Dodamani and also abused him in filthy language as 'Madara Sule Magane' thus, he insulted PW2 by taking the name of his caste. Therefore, a complaint was filed by the complainant in the concerned Police station. A crime No. 69/2009 was registered against the accused for the offences punishable under Sections 353, 323, 504 and 506 of Indian Penal Code and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
3. The Deputy Superintendent of Police of Bagalkot Sub-Division conducted the investigation in the said case. Spot panchanama was conducted. The statement of witnesses was recorded. Documents were collected. After completing the investigation, the said Officer filed charge sheet against the accused for the offences punishable under Sections 353, 323, 504 and 506 of Indian Penal Code and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989, before the Special Court. The Court took Cognizance of the alleged offences. The special case was registered.
4. The learned Judge after hearing both sides framed charge against the accused for the alleged offences. The accused was on anticipatory bail as per the order passed by the trial Court in Cri.Misc. No. 262/2009 dated 1.9.2009 and his bail application under Section 439 was allowed on 24.11.2009 subject to certain conditions.
5. After holding the trial, the learned Judge found the accused guilty for the offences punishable under Sections 323, 353, 504 and 506 of IPC and also for the offence punishable under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act Accordingly, the impugned judgment of conviction and sentence was passed.
6. The said judgment of conviction and sentence has been challenged by the accused on following grounds.
1. The impugned judgment passed by the learned Special (Sessions) Judge, is illegal and arbitrary since the same has been passed without considering the material facts, circumstances, documents and evidence on record.
2. The learned Sessions Judge failed to appreciate that the PW2 and the accused are strangers and they don't know each other.
3. The Trial court failed to appreciate that the PW4 is the only eye-witness in the present case and who has turned hostile and he has not supported the prosecution case.
4. PWs 1, 2 and 5 are not trustworthy as they are colleagues working in the same office. No independent witnesses has supported the case of prosecution.
5. The Trial court failed to appreciate fact that PW1 and PW2 were discharging their duties as public servants at the time of incident as such section 353 of IPC is not attracted.
6. There is delay in filing the complaint. Because, the distance between the police station and the office premises is 10 minutes walk.
7. Caste certificate produced by the 10 is not affixed with round seal. Because, without affixing seal Tahasildar could not have issue the caste certificate.
8. Trial Court failed to appreciate the fact that there is no corroborative evidence. The statement of the prosecution witnesses is inconsistent.
9. It is contended that the complainant was demanding bribe amount, and the accused refused the same. Hence the complainant, to take revenge has filed false complaint against the accused to harass him.
10. The Court below failed to appreciate the inconsistencies in the evidence with regard to the alleged incident. None of the eyewitnesses have spoken about the incident.
11. The Court below lost sight to ascertain as to what are the ingredients to constitute the alleged offences. The Court below should have taken great care to assess the interested testimony of witnesses. The version of complaint is not been supported by the alleged independent witnesses.
12. The learned counsel for the appellant-accused submitted that the complainant is not a member of SC or ST. In order to take revenge against the accused he filed a false complaint. The complainant got filed a complaint through a member of SC i.e., PW2. The accused did not know the said person or his caste. He had no enmity with the complainant. Therefore, the question of caste abusing does not arise. There was no intention on the part of the accused to assault or abuse. PW2 gave statement of caste abuse to support the complainant. The incident is alleged to have occurred within the office it was not within the public view. No external wounds have been caused. Even though the accused is said to have attacked two persons. The alleged eyewitness have not supported the case of the prosecution. The driver had no role to play in the tender process. Therefore, the accused had no intention to abuse PW2. When the accused has been acquitted for the offence punishable under Section 506 of IPC then the accused should have been acquitted for the offence punishable under Section 3(1)(x) SC & ST Act. The ingredients of Section 3(X) are not proved. Therefore, the appellant-accused has prayed to allow the appeal by setting aside the impugned judgment and to acquit the accused.
7. The learned counsel for the appellant-accused submitted that the complainant is not a person belonging to Scheduled Caste or Schedule Tribe. The place of occurrence of the incident was not within the public view as required under Section 3(1)(X) of SC & ST Act. The accused had no intention to assault or abuse the driver by touching his caste. The accused also had no motive to abuse or assault in the chamber of office and it cannot be considered a public view. If the incident alleged to be between PW1 and the accused, PW2 entering suddenly, has been deliberately taken to strengthen the case of the prosecution. There is no evidence to show that the accused knew the caste of PW2. There is also delay in filing the FIR, introducing PW2 in the incident is only a deliberate and afterthought. No external injuries were found on PW1, and also on PW3. The motive regarding the incident not at all connected to the driver working in the office. PW1 is the alleged eye-witness to the incident. PW1 had demanded bribe from the accused who is Contractor, when the same was refused, a false case has been filed by the complainant by involving PW2, belonging to Scheduled Caste. If PW2 had tried to stop of the quarrel between the accused and PW1, then there was no question of abuse or assault on PW2. There was no enmity or motive on the part of the accused towards PW2. No official duty was obstructed. There is no evidence to show that PW2 was on the duty at the time of incident. Moreover, PW2 is not a driver of PW1. He is the driver of Executive Engineer. He is also colluded with the complainant as the accused had refused to give bribe to them for the contract work done by him. The entire case is concoction in order to attract offence under Section 3(1)(X) of SC & ST Act. The delay has been committed to make allegation of serious offence. The accused had no reason to abuse PW2 by touching his caste. The other independent witnesses have not supported the case of the prosecution. Therefore, the learned counsel for the appellant prayed to allow the appeal by setting aside the judgment and order of conviction passed by the learned Sessions Judge.
8. The learned HCGP submits that, there are no grounds to disbelieve the evidence of PWs 1, 2 and 5 injured witnesses and eyewitness. Based on the evidence of abovesaid witnesses the prosecution has proved the guilt of the accused. The prosecution has not preferred any appeal against the acquittal for the offence punishable under Section 506 of IPC. It is on account of dispute in the official transaction; the accused assaulted PW1 and had abused in filthy language and insulted him in a public place. He intentionally insulted PW2 in public place by taking the name of his caste of PW2. Therefore, learned HCGP argued that the appeal is devoid of merits has prayed to dismiss the appeal.
9. On the basis of the above, the following points would arise for consideration:
1. Whether the prosecution had proved beyond any reasonable doubt before the trial Court that the accused had committed offence punishable under Sections 323, 353 and 504 of IPC and for the offence punishable under Section 3(1)(X) of SC/ST (Prevention of Atrocities) Act.
2. Whether the appellant-accused proves that the judgment of the trial Court is perverse, capricious against to the law and therefore, it is liable to be interfered with?
3. What order?
10. It is bounden duty of the prosecution to prove its case as made out in the charge sheet. Though the accused has been prosecuted for the offence punishable under Section 3(1)(X) of SC/ST (Prevention of Atrocities) Act. But, he is not the complainant in this case. In fact, the incident never occurred on account of PW2, who is said to be a member belonging to the Schedule Tribe. The quarrel that occurred was between PW1 and the accused. The motive for the incident or cause for the incident between the accused and PW1, which is not at all connected to PW2. Therefore, the accused had no motive to abuse PW2. The reasons stated by the complainant is that PW2 has stopped the quarrel between himself and the accused and at that time the accused is said to have been abused the PW2 by touching his caste. Therefore, the evidence on record so far as the offence punishable under Section 3(1)(X) of SC/ST (Prevention of Atrocities) Act is concerned, has to be appreciated very carefully.
11. Having regard to the aforesaid facts borne out from the case of prosecution, the learned counsel also has given below mentioned rulings:
(1) Asmathunnisa v. State of Andhra Pradesh Represented by the Public Prosecutor, High Court of Andhra Pradesh, reported in MANU/SC/0276/2011 : (2011) 11 SCC 259 : (2011) 3 SCC (Cri) 159 : (AIR 2011 SC 1905).
(2) Chandra Poojari v. State of Karnataka by Seshadripuram Police, Bangalore, reported in MANU/KA/0101/1997 : (1997) 4 Kant LJ 81 : 1998 Cri.L.J. 53.
(3) Gorige Pentaiah v. State of Andhra Pradesh and others, reported in MANU/SC/7983/2008 : (2008) 12 SCC 531 : (2008 AIR SCW 6901).
(4) Alka A. Misra v. J.P. Shoke, reported in MANU/MH/0937/2002 : LAWS (BOM) 2002 12 13 : (2003 Cri.L.J. 1333 (Bom).
(5) Pappu Singh v. State of Uttar Pradesh, reported in MANU/UP/0919/2001 : LAWS (ALL) 2001 11 12 : (2002 Cri.L.J. 1251 (All).
12. I have gone through the above said ruling and understood the position of law with regard to the offences in question.
13. In this case, the incident is said to have occurred in a public office i.e., Zilla Parishad, Bagalkot. Where the complainant and PW2 were working. PW2 is the driver of the said office and PW1 is the Engineer in the said office. It is also borne out from the evidence of PW1 that the accused had an official transaction in the office of Zilla Parishad, Bagalot. The accused is a contractor and he use to bid tender in the work that are undertaken by the said office. It is also admitted fact that the accused had an official work with PW1. Though the tender was approved by the Chief Engineer but, the information was not furnished to Deputy Commissioner and the District Bulletin Officer. Therefore, it was not accepted, the accused has met with the complainant and asked him to approve his tender and he has not agreed for the same.
14. The incident is said to have taken place on account of the above said issues between the accused and the complainant. A verbal heated argument took place between them and at that time the accused is said to have abused the complainant and threatened to kill him and assaulted him with the hands on his cheeks and on his chest and also abused him in filthy language. He is also said to have torned the shirt of the complainant.
15. It is further evidence of PW1 that, PW2, who was watching this incident and came to rescue him from the accused. At that time the accused is said to have beat PW2 and abused by his caste by stating that (Vernacular matter omitted....Ed.) Since, the other officials assembled there. Therefore, the accused ran away from the place of incident. The incident is also said to have been witnessed by Hanumanth Juttad and Stenographer of the office and Balappa Balaraddi-Contractor.
16. The said Balappa is examined as PW4 and he has totally not supported the case of the prosecution. He has turned hostile. He has denied that he has given any statement before the Police as per Ex. P4 about the incident.
17. PW1 filed a complaint as per Ex. P1, he was examined by PW3-the Doctor. He has deposed about the conducting of mahazar of scene of offence, seizure of torn shirt as MO1. In the cross-examination, he admits that immediately after the incident he did not call the Police over phone. He has not given documents to the Police to show that the accused is a contractor. If the Gram Panchayat calls the tender the said Panchayat only will send the tender to the Bulletin Officer and as well as to the Deputy Commissioner. The contractor was required to contact the Gram Panchayat, however, he denies that there was no requirements on his part to the tender proceedings of the Gram Panchayath and his office will explain if anybody have doubts regarding tender work and they will contact their office as the Panchayath will not be having sufficient experience.
18. It is also admitted that the Junior Engineer from Gram Panchayat had also put with comparative statement and has taken his opinion as to whether the tender is correct or not. After going through the tender he has informed as that was not correct. The said Junior Engineer enquired about the tender clarification orally and he has also expressed his opinion orally. If that is the case, whether was occasion for the accused to come to the Gram Panchayath and abuse the complainant for the tender issue? This is first doubt one can reasonably raise. Though there were more than 40 officials in the office, but, only this driver alone came to rescue the complainant. PW1 denies that accused and PW2 were not known to each other, but does not say how the accused and PW2 knew each other.
19. He does not know whether he had cleared bills pertaining to the work done by accused. But, after the incident he has not passed the bills. A suggestion was made that he demands bribe to pass the bills, but he denied the same. He did not know whether any Lokayukth case has been filed on the officials of his office. Only once the accused had met him. Around 20 people had gone to the Police Station along with the complainant to file complaint. According to him, the incident occurred at about 4.30 p.m. in the evening. He has filed complaint at about 6.00 p.m. in the evening and thereafter, he was taken for hospital. Regarding the tender work is concern; no documents are admittedly given to the Police to show that the accused had any reason to come to the office on that day to meet PW1.
20. It was also suggested that to clear the bills, he had demanded money from the accused and he did not gave the same. Therefore, by projecting PW2 he got filed a false complaint against the accused. Witness denies the said suggestion and also denied that since the accused did not give bribe at the instance of other contractors he had filed false case in order to harass the accused. As regard assault of PW1 is concerned, the Doctor PW3 found tenderness on the left side of the chest and head. She did not find any external injury. The CT Scan report showed that it was normal. The medical report as per Ex. P2, she also did not find any injury on PW2. Accordingly, she has given certificate as per Ex. P3. It is suggested that she has not mentioned her name in Exs. P2 and P3. She denies that she is a habit of giving false wound certificate. It is admitted by PW3 that Lokayukth corruption case filed against her and it is still in the investigation stage. She has been released on bail. Tenderness would be caused even person contact with a hurt object like iron rod or wall.
21. If this evidence as well as evidence of PW1 is taken into consideration it cannot be said that the prosecution had proved the offence under Section 323 of IPC. PW2 who saw the incident of accused abusing PW1 in filthy language, assaulting him left side of the chest. It is important to note that the Doctor has stated nothing with regard to assault, even she did not find any tenderness over chest. According to him, the accused abused him as (Vernacular matter omitted...Ed.) but, according to PW1 he abused him as (Vernacular matter omitted...Ed.). He does not know about the caste of the accused even prior to the incident nor he knew the caste of the complainant prior to the incident.
22. According to him, in Karnataka, in some places, the people call 'Madar' in other places it is called as 'Holeya'. He has specifically questioned as to why he did not filed complaint when he was abused with touching his caste. The Court found that the witness was giving answer by looking down and without raising his head and lawyer repeatedly objected his style and manner in which he was standing before the court.
23. It is important to note that the Court failed to appreciate the said testimony as to why the witness was looking down, without facing the defence lawyer boldly. He has not filed any complaint regarding his caste abuse. Though he has been assaulted but, his CT scan was not got done. The Doctor, in fact did not find any tenderness injury on PW2. PW2 has not stated that the accused abused him by touching his caste as he belongs to the SC caste. He does not know what were the talks between the complainant and the accused.
24. Having regard to the aforesaid evidence on record, the defence raised that the accused had no reason or motive to assault him or abuse him in filthy language, is found to be having force in it. In fact the intention of PW2 was, only rescue the complainant. Therefore, that would not have proved the accused be abuse him by touching his caste. Therefore, in order to make the incident more aggravated the possibility of objecting the accused, by taking the caste of PW2 as he belonging to the member of SC, cannot be ruled out. Further the fact that, PW2 not filed any complaint though he was abused by touching his caste raises a serious doubt to accept the evidence.
25. The next witness is PW5, who deposed that there was quarrel between the accused and the complainant. The accused abused in filthy language, assaulted on his cheek and chest, then PW2 intervened, the accused assaulted him, abused as (Vernacular matter omitted....Ed.) and assaulted on his head, also. The manner of filthy words touching the caste of the PW2 has come in three types of version, first from PW1, another from PW2 the victim himself and PW5. These witnesses, they differ the manner of abuse. He does not know the accused coming to the office of complainant and asking him about the tender. He does not know who was to complete the tender bulleting proceedings.
26. He claims that the incident happened with regard to tender work, but, he was not aware about the same. Only after this incident, but he has stated before the Police on the same day of incident he came to know about it. He has stated as per Ex. P1 as he knew the motive for the incident. According to him, Executive Engineer has not at all come to the Police station for giving complaint. Whereas, PW1 claims that Executive Engineer had also come to the Police Station. It is admitted that PW2 had no place for sitting, but PW5 cleverly answered, it is he, who sit in front of cabin of Executive Engineer.
27. On perusal of the above said evidence, I find that reasonable doubt can be raised, on the date of said witnesses PWs 1, 2 and 5 cannot be considered independent witnesses. They are interested in the complaint as they are working in the same office. PW6 is the Pancha witness. PW7 is the Tahasildar, who had given caste certificate to PWs 1 and 2 as per Ex. P7. He admits that round seal was not affixed to Ex. P7. Nothing was elicited in the evidence of PW7 that PW2 belonging to the member of Schedule Caste.
28. PW8 is the Sub-Inspector, who had received the complaint as per Ex. P1 and had registered the FIR. Further investigation handed over to the DSP. It is important to note that PW9 is the Investigating Officer had taken further investigation from PW8 and conducted mahazar and recorded the statement of witnesses etc.
29. As per Rule 7 of SC/ST (Prevention of Atrocities) Act, 1989, an offence committed under the Act shall be investigated by a Police officer not below the rank of a Deputy Superintended of Police. The Investigating Officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.
30. There is no document on record to show that he was appointed by Superintendent of Police to investigate this case. On perusal of his evidence, he has not at all stated anything with regard to PW1 that he was on duty and how his official duty was obstructed on account of incident in question. It is important to note that neither PW1 nor PW5 deposed with regard to the deterring by the accused in performing the official duties of PW1. There is no presumption as such with the official in the office during the office hours should be presumed to be on duty. In order to prove the offence under Section 353 of IPC, the prosecution has to prove PW1 was on official duty and the act committed by the accused deterred him from doing his duty. In the absence of these ingredients the accused could not have even convicted for the offence punishable under Section 353 of IPC. Though the Investigating Officer obtained Ex. P9, but it is not stated on what basis Ex. P9 was issued and what was the duty the complainant was doing at the time of incident. No inference can be drawn from the document that PWs. 1 and 2 were discharging any duty as such. In Ex. P9, the name of the person, who had signed is not mentioned or no office seal is attested to it. He did not know whose custody the movement register there in the office nor he has verified the same. Who obtained Ex. P9 is not forthcoming. There is no serial number of the said letter nor the name of staff who obtained and furnished the document to Investigating Officer, is not mentioned.
31. The Investigating Officer has not signed for having record it. The Investigating Officer had not given requisition to Thahasildar to give caste certificate as per Exs. P7 and 10. Further, the name of the Thahasildar is not mentioned in Ex. P7 and 10. The contradiction in the statement of PW2 and 5 is admitted. He do not know whether there was any dispute between Executive Engineer and the accused regarding passing of bills in his office. Therefore, on re-appreciation of evidence on record, I find that the case is not free from reasonable doubt.
32. Further, the prosecution has miserably failed to prove that the accused had no intention to abuse PW2 by touching his caste in order to humiliate within public view. The law requires that a member of SC and ST should have been abused with an intention to cause insult and humiliate the victim on the ground that he belongs to that caste. That type of evidence and allegation is totally not forth coming from the evidence. Once a doubt is raised about misusing the caste by a member of SC in order to aggravate the case, then corroboration by independent witnesses is a must. Having regard to the facts and circumstances of the case, reasonable inference can be drawn that PW2 has been used as a dice in order to make the incident serious one. Having regard to that inference, I find that the evidence of PWs. 1, 2 and 5 cannot be believed without due corroboration by independent witnesses. Admittedly, the independent witness examined has not at all supported the case of the prosecution. Therefore, I find that the case of the prosecution is not proved beyond any reasonable doubt. Hence, the point No. 1 answered in the negative and point No. 2 answered in the affirmative. The appeal filed by the appellant-accused is bound to be allowed. Accordingly, the appeal is allowed.
33. The judgment and order of conviction dated 20.09.2010, passed by the Special (Sessions) Judge, Bagalkot, in Special Case No. 98/2009 dated 20.09.2010 is set aside.
The accused is acquitted from all charges leveled against him. Bail bond shall stands continue till expiry of the appeal period.
Fine amount paid by the accused, if any, be refunded to the accused.
Send back the LCR along with the copy of this order.
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