Kumara and Others vs State

N. Ananda, J.—The appellants were arrayed as accused 1 to 7 & 9 to 13 (hereinafter referred to as ''accused 1 to 7 & 9 to 13'') in Special Case No. 28/2002, on the file of II Additional Sessions Judge & Special Judge, Bangalore Rural District at Bangalore. The appellants and accused Nos. 8, 14 & 15 were tried for offences punishable under sections 143, 147, 148, 448, 427, 324, 354 r/w 149 IPC and also for offences punishable under sections 3(1)(x) & 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ''the Act''). The appellants (accused 1 to 7 and 9 to 13) were convicted for offences punishable under sections 143, 147, 148, 448, 427, 324, 354 r/w 149 IPC and also for an offence punishable u/s 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused No. 8, 14 & 15 were acquitted of the aforestated offences. I have heard Sri J.T. Gireesha, learned counsel for accused 1 to 7 & 9 to 13 and Sri B. Visweswaraiah, learned HCGP for State.

The accused were tried for following charges:-

That you A1 to A15 on 27.3.2001 at about 3 p.m. at Nayakanahalli Village, in (Harijan Colony, within the limits of Sathanur P.S. being the members of an unlawful assembly, with the common object of which was to assault, trespass, mischief etc., namely, C.W. 1. N.J. Ananda, C.W. 4 Parashiva, C.W. 5 Chikkamadaiah, C.W. 6 Shivalingaiah, C.W. 7 Shivalingaiah, C.W. 8 Chikkamari, C.W. 12 Smt. Rachamma, C.W. 13 Smt. Siddamma, C.W. 14 Smt. Kempamma, C.W. 16 Smt. Doddamma, C.W. 17 Anandaiah and C.W. 19 Eralingaiah and thereby committed an offence punishable u/s 143 r/w sec. 149 of IPC and within my cognizance.

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, committed rioting and thereby committed an offence punishable u/s 147 r/w sec. 149 of I.P.C. and within my cognizance;

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, committed noting holding deadly weapons like Bettakudlu, clubs and stones and thereby committed an offence punishable u/s 148 r/w sec. 149 of IPC and within my cognizance;

That you A1 to A15 on the aforesaid date, time and place being members of an unlawful assembly with the common object of committing mischief and in prosecution of the said common object trespassed into the dwelling house of C.W. 5 Chikkamadaiah, C.W. 1 N.J. Ananda, C.W. 17 Andanaiah and C.W. 19 Eralingaiah and thereby committed an offence punishable under sec. 448 r/w sec. 149 of IPC and within my cognizance;

That you A1 to A15 on the aforesaid date, time and place being the members of an unlawful assembly with the common object of committing mischief, and in prosecution of the common object such assembly, removed the doors and windows and broke the tiles of C.W. 1 N.J. Ananda, C.W. 5 Chikkamadaiah, C.W. 17 Andanaiah and C.W. 19 Eralingaiah and committed mischief and caused loss to them to the extent of Rs. 10,000/- and thereby committed an offence punishable u/s 427 r/w sec. 149 of IPC and within my cognizance.

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, you A1, A2 and A3 gained entrance to the house of C.W. 1 N.J. Anand, you A2 assaulted him on his left leg, you A3 assaulted him on his right hand, you A1, A4, A5, A7, A8 and A9, assaulted him all over his body, by means of bettakudulu, clubs; you A14 assaulted C.W. 4 Parashiva on his head, right hand shoulder, you A1, assaulted on his right hand shoulder, by means of, clubs and rods; you A6, assaulted C.W. 8 Chikkamari on his head and waist, you A11 on his right knee and waist, causing wounds by means of clubs, you A12 and A13 assaulted C.W. 5 Chikkamadaiah, C.W. 6 Shivalingaiah and C.W. 7 Shivalingaiah by means of clubs, which if used as weapon of offence, is likely to cause death and thereby committed an offence punishable u/s. 324 r/w sec. 149 of I.P.C. and within my cognizance;

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, not being members of S.C. or S.T., intentionally insulted by abusing C.Ws. 1, 4 to 16 causing wounds to them by taking their caste name as "Madiga Sulemakkala" with intent to humiliate said C.Ws. 1, 4 to 16, who are members of S.C./S.T. in a place within public view and thereby you have committed an offence punishable u/s. 3(1)(x) of S.C. and S.T. (PA) Act, 1989 r/w sec. 149 of I.P.C. and within my cognizance;

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, you A4 and A5 dragged and assaulted C.W. 12 Smt. Rachamma, C.W. 13 Smt. Siddamma and C.W. 14 Smt. Kempamma, by hands, women, intending to outrage their modesty by such assault and thereby committed an offence (punishable u/s. 354 r/w sec. 149 of I.P.C. and within my cognizance;

That you A1 to A15 on the above said date, time and place being members of an unlawful assembly and in prosecution of the said common object of the said assembly, not being a member of Scheduled Caste or Scheduled Tribe you A4 and A5 dragged and assaulted by hands C.W. 12 Smt. Rachamma, C.W. 13 Smt. Siddamma and C.W. 14 Smt. Kempamma, who were women belonging to Scheduled Caste/or Scheduled Tribe with intent to outrage their modesty and thereby committed an offence punishable u/s. 3 Cl. 1(xi) of S.C./S.T. (PA) Act, 1989 r/w sec. 149 of I.P.C. and within my cognizance;

The prosecution has examined PW 1 to PW 20 and relied upon documentary evidence marked as Ex. P. 1 to Ex. P. 21 and material objects marked as M.O. 1 to M.O. 14.

It is seen from evidence of PW 1 to PW 7, though they have supported the case of prosecution in examination-in-chief, they have not supported the case of prosecution when they were cross-examined by learned counsel for accused.

It is seen from evidence of PW 1 to PW 7, after each of the aforestated witnesses was examined-in-chief on 28.09.2005, their cross-examination was deferred. These witnesses were recalled for cross-examination by the learned counsel for accused on 23.01.2007. During cross-examination by learned counsel for accused, PW 1 to PW 7 have given a complete go by to the case of prosecution. The learned Public Prosecutor realising this blunder, sought permission of court to treat these witnesses as hostile and learned Public Prosecutor was permitted to cross-examine these witnesses.

During cross-examination by learned Public Prosecutor, PW 1 to PW 7 have admitted that after they were examined-in-chief, elders in the village brought about compromise between some of the prosecution witnesses and accused. The accused gave compensation to victims, whose houses were damaged. For these reasons, PW 1 to PW 7 have taken a vacillatory stand.

The law is fairly well settled when witnesses are declared as hostile, their evidence does not get obliterated. The evidence of hostile witnesses to the extent it is found credible and consistent could be made use by prosecution as also by defence. The evidence of these witnesses (PW 1 to PW 7) would support the case of prosecution that on 27.03.2001 at about 3 p.m., at Nayakanahalli Village in Harijan Colony, within jurisdiction of Sathanur police station, there was a quarrel in relation to distribution of water from community borewell and tank. In that connection, there was a quarrel between some of the prosecution witnesses on one side and accused on the other side.

In order to prove an offence punishable u/s 3(1)(xi) of the Act, prosecution has to establish that accused not being members of a scheduled caste or a scheduled tribe assaulted or used force to any woman belonging to a scheduled caste or a scheduled tribe with intent to dishonour or outrage her modesty.

PW 11-Malathi is the wife of PW 1-Anand. PW 11 has deposed; accused after entering house started abusing her husband (PW 1); when PW 11 intervened, accused assaulted on her stomach and right shoulder; people of harijan colony gathered; accused removed their sarees and assaulted womenfolk. PW 11 has deposed that at the time of incident, she was carrying six months pregnancy; due to assault by accused, PW 11 had suffered miscarriage. This is not the case put forth by prosecution.

During cross-examination, PW 11 has admitted that her marriage with PW 1 was performed on 04.05.2000. The incident took place on 27.03.2001. Therefore, evidence of PW 11 that she was carrying six months pregnancy on the date of incident is not free from reasonable doubt. Above all, prosecution has not adduced documentary evidence to prove that PW 11 had suffered miscarriage due to assault. Therefore, evidence of PW 11 cannot be accepted.

PW 12-Rachamma is the mother of PW 1. PW 12 has deposed; about 4� years back, incident took place in relation to supply of water; PW 1 had gone to enquire about supply of water; accused chased PW 1; PW 12 and some of the prosecution witnesses to save PW 1, confined him in their house; Kumar (accused No. 1), Prakash (accused No. 3) and Shivu (accused No. 4) scaled roof of house of PW 1 and removed tiles of roof and got into their house; accused assaulted PW 1 with a chopper, clubs and rods; they also assaulted PW 12.

During cross-examination by learned counsel for accused, PW 12 has given a go by to case of prosecution. Therefore, PW 12 was treated as a hostile witness and she was cross-examined by learned Public Prosecutor.

During cross-examination by learned Public Prosecutor, PW 12 has admitted that after she gave her evidence in examination-in-chief, elders of village compromised matter and thereafter, accused and prosecution witnesses are cordial.

PW 13-Siddamma is the grand mother of PW 5. PW 13 has deposed; accused assaulted PW 1; when PW 13 intervened, accused Nos. 4 & 9 assaulted PW 13 with clubs.

During cross-examination, PW 13 has admitted that incident of assault on PW 1 had taken place inside house of PW 1 and PW 13 did not witness quarrel. PW 13 has admitted that she has been cordial with accused.

PW 14-Kempamma has deposed; PW 1 was assaulted by accused No. 3; accused removed her saree; PW 14 came out on petticoat and blouse; accused No. 4 assaulted PW 14 with a club.

The evidence of PW 14 that accused removed her saree is vague and omnibus. There are as many as 15 accused. It is not the case of prosecution that accused 1 to 15 outraged modesty of PW 14.

During cross-examination, PW 14 has admitted that she had received compensation from Government and at the instance of elders of village, matter was compromised and she is cordial with the accused.

Thus, on re-appreciation of evidence, I find prosecution has failed to prove that accused 1 to 7 and 9 to 13 committed an offence punishable u/s 3(1)(xi) of the Act.

PW 15-Chikkolamma and PW 16-Doddamma have not completely supported the case of prosecution. They have categorically admitted that after they were examined-in-chief, elders of village compromised matter, therefore, PW 15 & PW 16 have given go by to the case of prosecution. The learned Public Prosecutor has sought permission of court to treat PW 15 & PW 16 as hostile witnesses and they were declared as hostile witnesses.

PW 17-Dr. K. Medhavi, who at the relevant time was working as a Senior Specialist in General Hospital at Kanakapura has given evidence relating to injuries suffered by some of the prosecution witnesses.

PW 17 has deposed; on 27.03.2001 at about 8.15 p.m., she examined PW 11-Malathi in General Hospital at Kanakapura and found following injuries:-

I. Tenderness over epigastric region

II. Tenderness over right shoulder. As on the date of examination, patient was carrying six months.

PW 17 has deposed; on 27.03.2001 at about 8.25 p.m. she examined PW 13-Siddamma and found following injuries:-

I. A lacerated injury over dorsal of hand measuring 1 c.m. � c.m.

II. A contusion over left intra scapular region measuring 1 inch x 1 inch.

III. Tenderness over medial side of right ankle

PW 17 has deposed; on 27.03.2001 that about 8.50 p.m., she examined PW 10-Savithri and found following injuries:-

I. Tenderness over left knee

II. Tenderness over back measuring 2 inches x 2 inches

III. Contusion over occipital region measuring 2 inches x 2 inches.

PW 17 has deposed; on 27.03.2001 at about 8.15 p.m., she examined PW 1-Ananda and found following injuries:-

I. Contusion over middle 1/3rd of right hand measuring 2 inches x 2 inches, swelling, reddish in colour.

II. Contusion over lower 1/3rd of left leg measuring 2 inches x 2 inches reddish in colour.

III. A lacerated injury over lower 1/3rd on medial aspect of left leg measuring � inch x � inch fresh blood clot at its margin. Patient was referred to major hospital at Bangalore. He was semiconscious.

PW 17 has deposed; on 27.03.2001, she examined PW 5-Shivalingaiah and found following injuries:-

I. Contusion over middle 1/3rd of left upper arm.

II. Contusion over left infra scapular region measuring 2" x 2".

PW 17 has deposed; on 27.03.2001, at about 08.30 p.m., she examined PW 15-Chikkalamma and found following injuries:-

I. Contusion over right maxillary region measuring 2" x 2" reddish in colour.

II. Lacerated injury over right maxillary region, measuring �" x �" fresh blood clot at margin.

III. Contusion over left gluteal region measuring 4" x 3" reddish in colour.

PW 17 has deposed; on 27.03.2001, at about 8.40 p.m., she examined PW 16-Doddamma and found following injuries:-

I. Tenderness over chest over manubrium sterni. Ribs are intact

II. Tenderness over epigastric region. Diffused.

III. Tenderness over supra pubic region - diffused.

PW 17 has deposed; on 27.03.2001, at about 9.00 p.m. she examined PW 14-Kempamma and found following injuries:-

I. Contusion over right gluteal region measuring 4" x 3".

II. Contusion over right elbow joint on posterior aspect measuring 2" x 2" reddish in colour.

III. Contusion over left infra scapular region measuring 2" x 2" reddish in colour.

PW 17 has deposed; on 27.03.2001, at about 7:45 p.m., she examined PW 7-Chikkamari and found following injuries:-

I. Lacerated injury over left parieto-occipital region measuring 2" x 2" fresh blood clot at its margin.

II. Contusion over left gluteal region.

PW 17 has deposed; on 27.03.2001, at about 8.00 p.m., she examined PW 3-Parashiva and found following injuries:-

I. Contusion over right dorsum of hand measuring 3" x 2" reddish in colour.

II. Contusion over left scapular region measuring 2" x 2" reddish in colour.

PW 17 has deposed; on 27.03.2001, at about 8.35 p.m., she examined PW 6-Shivalingaiah and found following injuries:-

I. Tenderness over lumbar region. Clinically no fracture.

II. Tenderness over sternum.

III. Contusion over right knee joint measuring 2" x 2" reddish in colour.

PW 17 has deposed; on 27.03.2001, at about 9.10 p.m., she examined PW 4-Chikkamadaiah and found following injuries:-

I. Lacerated injury over right eye brow measuring �" x �" fresh blood clot at its margin.

II. Contusion over lumbar region measuring 2" x 1".

PW 17 has deposed; on 27.03.2001, at about 8.45 p.m., she examined PW 12-Rachamma and found following injuries:-

I Contusion over left thigh measuring 2" x 2", Upper 1/3rd reddish in colour.

II. Contusion over left gluteal region measuring 2" x 2" reddish in colour.

III. Contusion over the manubrium sterni.

PW 17 has deposed; on 27.03.2001, at about 8:55 p.m., she examined PW 9-Shivaraj and found following injuries:-

I. Contusion over right ankle joint measuring 2" x 2".

II. Contusion over left leg lower 1/3rd on the later side measuring 2" x 2".

During cross-examination, PW 17 has denied suggestions that she had given false evidence and he had issued false wound certificates to enable prosecution witnesses to get compensation from Government.

PW 1-Anand has deposed; accused No. 2 assaulted on his left leg with a chopper; accused No. 3 assaulted PW 1 on his right fore arm with a club and other accused namely accused Nos. 7, 12 & 13 had trespassed into his house.

PW 3-Parashiva has deposed; accused No. 1 assaulted on his back with a club.

PW 4-Chikkamadaiah has deposed; accused No. 12 assaulted on his face with a club; accused No. 13 assaulted on his back with a club.

PW 5-Shivalingaiah S/o. Byraiah has deposed; all accused assaulted him with clubs.

PW 6-Shivalingaiah S/o. Madaiah has deposed; accused No. 12 assaulted on his left forearm with a club.

PW 7-Chikkamari has deposed; accused No. 6 assaulted on his head and hip portion with a club.

PW 9-Shivaraj has deposed; accused No. 7 assaulted him with a club.

PW 10-Savithri has deposed; accused No. 10 assaulted on his knee joint and his back with a club.

These witnesses have deposed that they have been treated in General Hospital at Kanakapura.

As already stated, after examination-in-chief of these witnesses, their cross-examination was deferred at the request of learned counsel for accused. After they were recalled and they were cross-examined by learned counsel for accused, they have given a go by to the case of prosecution. They were declared as hostile witnesses.

During cross-examination by learned Public Prosecutor, they have admitted after they were examined-in-chief and before they were cross-examined, elders in village brought about compromise between two parties and some of them had received compensation.

It is obvious that these witnesses have tried to dilute the case of prosecution during cross-examination, nevertheless evidence of aforestated witnesses about assault on them by the named accused is found credible and consistent. The medical evidence reveals that PW 1, PW 3, PW 6, PW 7, PW 9 & PW 10 had suffered injuries. Therefore, prosecution has proved that accused 1 to 7 & 9 to 13 being members of unlawful assembly had assaulted PW 1, PW 3, PW 6, PW 7, PW 9 & PW 10 with dangerous weapons and caused hurt to them and thereby committed an offence punishable u/s 324 r/w 149 IPC.

The prosecution has proved that accused 1 to 7 & 9 to 13 were the members of unlawful assembly and in furtherance of common object of such unlawful assembly, they trespassed into house of PW 1 and assaulted PW 1 with clubs and choppers. The prosecution has also proved that in the same course of transaction, accused 12 & 13 assaulted PW 4-Chikkamadaiah, PW 5-Shivalaingaiah, S/o Byraiah and PW 6-Shivalingaiah, S/o Madaiah with clubs and voluntarily caused hurt to them. The prosecution has proved that accused 1 to 7 & 9 to 13 being members of unlawful assembly trespassed into house of PW 1 and caused damage to house of PW 1 and thereby committed an offence punishable under sections 448, 427 r/w 149 IPC. The prosecution has alleged that accused 1 to 15 had outraged the modesty of PW 12-Rachamma, PW 13-Siddamma & PW 14-Kempamma. PW 12 to PW 14 have given inconsistent versions. They are declared as hostile witnesses. Therefore, their evidence is not sufficient to prove that accused 1 to 7 and 9 to 13 outraged their modesty.

The prosecution witnesses, in particular, PW 1 to PW 7, PW 12, PW 14 to PW 16 at the instance of elders of village have compromised the matter with the accused. In view of this development, if accused 1 to 7 & 9 to 13 are sentenced to undergo imprisonment, it is likely to disturb tranquility in village. Therefore, I deem it proper to substitute sentence of imprisonment with fine. In the result, I pass the following:

ORDER

The appeal is accepted in part. The impugned judgment is modified. Accused 1 to 7 & 9 to 13 are acquitted of an offence punishable u/s 3(1)(xi) of the Act. Accused 1 to 7 & 9 to 13 are acquitted of an offence punishable u/s 354 r/w 149 IPC. The conviction of accused 1 to 7 & 9 to 13 for offences punishable under sections, 143, 147, 148, 448, 427, 324 r/w 149 IPC is confirmed. Accused 1 to 7 & 9 to 13 are sentenced to pay fine of Rs. 5,000/- each, in default to undergo simple imprisonment for a period of three months for an offence punishable u/s 324 r/w 149 IPC. The fine imposed by learned Special Judge on accused 1 to 7 & 9 to 13 for offences punishable under sections 143, 147, 148, 448, 427 r/w 149 IPC is confirmed.