G.D. Nanjegowda vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned Government Pleader.

The facts leading up to this case are as follows:

"According to the complainant, who was said to be a person belonging to a Scheduled caste and employed as a ''Kulawadi'', that on 8.10.2009, at about 8.30 p.m., the village elders had ordered him to make an announcement by way of a proclamation. While the complainant had embarked on this assignment, to make an announcement at the Ganapathi temple, it is alleged that the accused had wrongfully restrained him and abused him calling him ''boli magane'' and he was threatened not to make any announcement, as instructed by one Lava and that he should make the announcement as directed by him, while roughly holding him by the collar of his shirt and further abusing him as ''holeya nanna magane, soole magane'', etc., it is stated that this had occurred in the presence of witnesses, Lava, Kumara and Manju, who had come there and rescued him. It was the complainant''s further case that this last incident was the culmination of such harassment spread over several days when he was abused in similar language by the accused. Therefore, the complainant had informed the village elders of the said assault and thereafter had filed a complaint on 10.10.2009, which was clearly 2 days after the alleged incident.

On the basis of the complaint, a case was said to have been registered in Crime No. 155/2009 for offences punishable under Sections 341, 323 and 504 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC, for brevity). The investigating officer, after having visited the scene of offence, is said to have conducted the mahazar in the presence of witnesses. The complainant was also taken to the Primary Health Centre for treatment and a wound certificate is said to have been issued as Per Exhibit P.6. After investigation of the offence, where it was disclosed that the accused did not belong to a Scheduled Caste or a Scheduled Tribe, the appellant was charge sheeted and a case was registered in Special Case No. 53/2009 and the court below had framed charges against the accused for offences punishable under Sections 341, 323 of the IPC, and Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the ''SC & ST Act'', for brevity). The accused had pleaded not guilty and had claimed to be tried. The prosecution had then examined P.Ws. 1 to 8 and marked exhibits P.1 to P.6. The defence had tendered evidence through D.W. 1 and marked exhibits D.1 to D.7. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 and after hearing both the sides, the court below had framed the following point for its consideration:

"1) Whether the prosecution has proved beyond reasonable doubts that the accused on 10.11.2009, at about 8.30 a.m. near Vighneswara temple in Giriyarahalli, wrongfully restrained C.W. I from proceeding in any direction and thereby committed an offence under Section 341 I.P.C?

2) Whether the prosecution has proved that on the said date, time and place the accused voluntarily caused hurt to C. W.I by beating him and thereby committed an offence under Section 323 I.P.C.?

3) Whether the prosecution further proves that on the said date, time and place the accused not being a member of Scheduled Caste or Scheduled Tribe with an intention to insult and annoy a member of Scheduled Caste or Scheduled Tribe in a public place by abusing him as "holeya nanna magane, soole magane - boli magane" etc., and thereby committed an offence under Section 3(1)(x) of the SC and ST (Prevention of Atrocities) Act, 1989?"

The court below has answered point No. 1 in the negative and points 2 and 3 in the affirmative and convicted the accused and sentenced him to pay a fine of Rs. 1,000/- for the offence punishable under Section 323, IPC and to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 2,000/- for the offence punishable under Section 3(i)(x) of the SC & ST Act and out of the total fine amount, Rs. 2,000/- was to be paid as compensation to the complainant. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would firstly point out that the entire case is falsely foisted against the appellant and that he was not even present in the village on the date of the incident. In this regard, he had tendered evidence which has been trashed by the trial court. The learned Counsel would submit that the evidence tendered was to the effect that the appellant was a resident of Mysore and he was also shown as a resident of Mysore in the very charge sheet and further, he was working as a recovery agent of a private bank and that he was on duty and was working on the date of the incident and therefore could not possibly have been involved in the incident.

In this regard, evidence having been tendered, the court below had trashed the same and has proceeded to hold that if the alibi set up by the accused could not be established, it would then have to be taken that his presence at the time of the incident was to be held established and consequently held that notwithstanding the claim that the accused was a resident of Mysore and that he was working on the date of the incident, having regard to the distance, from the village to Mysore city, which is only 50 kilometres, it was quite possible for the appellant to have been present both at Mysore and in the village at the time of the incident. In that, he could have easily travelled from Mysore to the village, to have committed the offence.

Secondly, insofar as the claim that he was working on the said date of the incident and could not have been involved in the alleged commission of the offence, it is pointed out that the incident had occurred at 8.30 p.m., when the petitioner was off duty. Therefore, it was held that the possibility of the incident having occurred could not be ruled out. It is on this basis that the defence set up has been negated by the court below.

However, the learned Counsel for the appellant would submit that leaving aside the alibi and the defence set up by the accused, the burden was on the prosecution to establish its case beyond all reasonable doubt. In this regard, the learned counsel would point out that the allegation of the appellant having accosted the complainant and having abused him and having assaulted him, is sought to be established, by relying upon the evidence of the P.W. 1, the complainant himself, apart from the testimony of P.W. 2, P.W. 3, and P.W. 7. Insofar as the self serving evidence of P.W. 1 is concerned, it is contended that unless the same is corroborated by independent evidence, the same cannot be readily accepted for more than one reason. It is claimed that not only was the complainant abused, he was also assaulted and he had suffered injuries, which was duly certified by a Medical Practitioner. Insofar as the injuries are concerned, the opinion of the Medical Practitioner was that there were no external injuries. It was only pain that the complainant had complained of and which was recorded in the wound certificate. There is no indication of any injury having been caused by virtue of any alleged assault. Therefore, the claim that he was abused had to be established atleast with reference to the evidence of other witnesses.

Insofar as the evidence of P.W. 2 is concerned, P.W. 2 has categorically stated that he did not hear the words actually employed by the accused in having abused the complainant. Therefore, the evidence of P.W. 2 does not corroborate the evidence of P.W. 1 insofar as any particular words or language having been used, with reference to the caste of the complainant in a derogatory fashion. Insofar as P.W. 3 is concerned, the said witness, admittedly, was the nephew of P.W. 1, the complainant, namely, and therefore, his evidence could not be readily accepted. Insofar as P.W. 7 is concerned, he is again a witness, who has admitted that there were, in fact, differences between the family of the said witness and that of the accused, since his wife and the wife of the accused had contested at an election and the wife of the accused had succeeded at the election. Therefore, it is contended that there was a strong possibility of a false case being foisted on the basis of the evidence of those witnesses. On the other hand, when the allegation of the prosecution is to the effect that the incident had occurred in a public place and in public view, it was expected that the independent witnesses from the general public, who may have witnessed the incident, ought to have been examined as witnesses. In the absence of any such independent evidence to establish that the complainant was abused with reference to his caste in a derogatory fashion and that he was assaulted causing injuries and the same not having been established with reference to any cogent evidence, the case of the prosecution would have to fall to the ground and therefore, the findings of the court below are without basis and that the same requires to be set aside and the accused be acquitted.

More significantly, the learned Counsel for the appellant would point out that there is an undue delay of two days in filing the complaint. Admittedly, the Police Station was 9 kilometres from the village and the place of the incident. Even if there were alleged conciliatory talks with the village elders and the complainant, the same ought not to have delayed the initiation of proceedings by over two days and coupled with the fact that there is a possibility of a false case being foisted against the accused, the inordinate delay would not compound the falsity of the case and therefore, would submit that the findings of the court below are without any basis. And that on the other hand, the unexplained circumstances of the case would vitiate the entire proceedings and seeks that the conviction be set aside and the accused be acquitted.

The learned Government Pleader, on the other hand, would seek to justify the judgment of the court below and would firstly submit that insofar as the delay in filing the complaint is concerned, it is generally the trend in a village, that whenever there is an incident, there will be an attempt at conciliation and settlement at a Panchayath. The present case on hand is one such where there has been an attempt to settle the matter at the Panchayath level, though it is not a welcome state of affairs and therefore, the delay being sought to be explained would have to be accepted, and that it is necessary to take a pragmatic view in this circumstance and the delay, therefore cannot be said to be fatal to the case on hand.

Insofar as the further contention that the accused having miserably failed in establishing his alibi, the court below has rightly held that if the accused was not in a position to establish his defence and the alibi that he was not in the village at the time of the incident as he was residing at Mysore, and he was employed there, and was on duty on that particular day, the presumption that he was, in fact, present at the scene of the incident naturally arises and the court below has proceeded to consider the evidence of the witnesses on that basis. Therefore, the injured complainant himself being a witness, has spoken to the manner in which the incident has occurred and the actual words used by the complainant. This has been supported by P.W. 2 insofar as the assault having been caused and the complainant being injured as a result of the assault, and this has been corroborated by P.Ws. 3 and 7. The contention that these are interested witnesses and their evidence ought to be negated is not tenable, merely because P.W. 3 was related to P.W. 1. the complainant, and the fact that the relative of P.W. 7 had contested at the elections against the relative of the accused by itself, would not be a reason to disbelieve the evidence of the said witnesses. The witnesses being characterised as interested witnesses would not detract from the fact that they were present at the time of the incident and have narrated the same on oath before the court. Therefore, it would have to be tested with reference to the veracity of their statements, which has withstood the test of cross-examination of the defence. Therefore, merely because of the relationship between the witnesses with the complainant, their evidence cannot be dismissed as not acceptable. It is not possible in every case to gather witnesses from the general public, even if they were witnesses to such an incident and merely because there were no such independent witnesses, the case of the prosecution being negated cannot be the general rule, as sought to be canvassed by the learned Counsel for the appellant. The learned Government Pleader hence seeks dismissal of the appeal.

In the light of the above facts and circumstances, the delay of 2 days in lodging the complaint in the case on hand could even be held not fatal to the case of the prosecution, if there were other circumstances to indicate that there was a justifiable explanation. As is seen from the material on record, there are several weaknesses in the case of the prosecution, which would result in the delay taking on significance. In that, the complainant had asserted that he was abused in foul language not only at the time of the incident, but over several days, but there are no witnesses to speak to any such continued harassment over several days. Insofar as the actual incident is concerned, the complainant naturally has tendered evidence in support of his own case. It would necessarily have to be corroborated by other witnesses. Insofar as the evidence of P.W. 2 is concerned, he has only supported the case of the prosecution, to the extent that he saw the accused assaulting the complainant but however, there were no injuries caused, as is evident from the evidence of the Medical Practitioner, who has stated that there were no visible injuries caused to the complainant. Therefore, the evidence of P.W. 2 would support the case of the prosecution only to the extent of corroborating the statement of the complainant that he was attacked by the accused and was injured. Insofar as P.Ws. 3 and 7 are concerned, they are certainly shown to be interested witnesses, who would be expected to depose against the accused, having regard to the fact that P.W. 3 was admittedly the nephew of the complainant and P.W. 7 also had an axe to grind as there was rivalry insofar as the election between the relatives of the said witness and the accused was concerned. Therefore, the allegation of an offence punishable under Section 3(1)(x) of the SC & ST Act, would naturally require that the offence had been committed in a public place and in public view. The evidence of the prosecution in that regard would necessarily have required the appellant that some members of the public being examined to support the case of the prosecution. There is no such member of the public examined to support the case of the prosecution, except the aforesaid witnesses, who cannot be called as members of the general public and it is a coincidence that it is these relatives, who were present at the time of incident. Therefore, it leads to a presumption that given the inordinate delay in filing the complaint, that there was an attempt to foist a false case against the accused and the evidence tendered does not evoke confidence of this court in accepting the same in the manner that it is projected, especially, since the complainant has not suffered any injuries at all, though the attempt was to indicate that he had suffered injuries as would require treatment by a Medical Practitioner and that the Medical Practitioner having stated that there were no visible injuries, would further dilute the case of the prosecution. Therefore, in the above facts and circumstances, the court below was not justified in arriving at its conclusion without any basis.

The appeal is allowed and the judgment of the court below is set aside. The accused are acquitted. The fine amount, if any, paid shall be refunded to the accused. The bail bonds stand cancelled.