Salim Mittusab Sutar and Another vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned Government Pleader. The present appellants are accused 2 and 3, and seek to question their conviction for offences punishable under Sections 324 and 342 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as ''IPC'', for brevity).

The background to the appeal is as follows:

It was alleged that, on 25-6-2007, at about 8.20 p.m., the complainant-P.W. 19 was proceeding towards Kirana shop, which was on the lane, in which he lives and when he was passing by the house of one Shyam Khandre, it is stated that, accused 1 to 7, forming themselves into an unlawful assembly and armed with deadly weapons like iron rods, attacked the complainant, wrongfully restrained him from proceeding and abused him saying that, he had assaulted the accused 4 and therefore, they would not spare him. Accused 2-Salim is said to have assaulted the complainant with iron rod on his head, accused 3-Shabbir, the second appellant herein, had also assaulted him with iron rod on his right leg below the knee. Similarly, accused 4-Shabbir Sutar assaulted him with iron rod on his left leg below the knee, whereas the other accused wrongfully restrained him and instigated others to finish of the complainant.

It is claimed that, P.W. 11-Krishna Madar, P.W. 8-Sunil Kallimani, P.W. 9- Parashuram Obi, and P.W. 10-Mahantesh, were all present at the time of incident and though it was 8.00 p.m., there was enough light of the street lights and they witnessed the incident. But they did not come to the rescue of the complainant, as they were scared of the accused. In the meantime, the complainant''s father-P.W. 20, on hearing the commotion, said to have rushed at the spot and on seeing the father of the complainant, the accused are said to have fled the scene.

The complainant had sustained bleeding injuries on his head and legs and therefore, the complainant''s father had brought a vehicle and shifted him to the Government Hospital. The Police Sub-Inspector, Gokak Town Police Station, recorded the statement of the complainant at the hospital, in the presence of the medical officer. It was further alleged that, the complainant belongs to a Scheduled Tribe and the accused were all Muslims and that, the accused abused him with reference to his caste as "Byadar Suli Magane". On the basis of the statement of the complainant, a case was registered in Crime No. 125 of 2007 against accused 1 to 7 and further proceedings were taken up.

After completion of the investigation, the appellants and the other accused were charge-sheeted. Subsequently, charges were framed for offences punishable under Sections 143, 147, 148, 342, 307, 114, 504 and 506 read with Section 149 of the IPC and u/s 3(1)(ii) and 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The accused had pleaded not guilty and claimed to be tried. The prosecution had examined P.Ws. 1 to 21 and had marked Exhibits P. 1 to P. 35 as well as material objects 1 to 11.

On recording the statements of the accused u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'' for brevity) and after hearing the parties, the Court below had framed the following points for consideration:

(i) Whether the prosecution has proved beyond all reasonable doubt that on 25-6-2007 at 8.20 p.m. on a public road in front of the house of C.W. 15 situate within the limits of Gokak Falls and Gokak Town Police Station, the accused 1 to 7 being angry against the complainant in connection with collection of certain amount and also due to previous ill-will and quarrel, were members of unlawful assembly with the common object of committing the murder of the complainant and thereby they have committed an offence punishable u/s 143 of IPC?

(ii) Whether the prosecution has further proved that, on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above committed rioting and thereby committing an offence punishable u/s 147 of IPC?

(iii) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods committed rioting and thereby committed an offence punishable u/s 148 of IPC?

(iv) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods wrongfully restrained the complainant and thereby committed an offence punishable u/s 343 read with Section 149 of IPC?

(v) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods accused 2, 3 and 4 among other accused assaulted the complainant with iron rods on backside of the head, below knee and thereby attempted to commit his murder and caused him grievous hurt and thereby committed an offence punishable u/s 307 read with Section 149 of IPC?

(vi) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods, accused 1 and 5 to 7 instigated accused 2 to 4 not to leave the complainant and to finish him, and thereby all the accused have committed an offence punishable u/s 114 read with Section 149 of IPC?

(vii) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods abused the complainant in filthy language saying "Byadar Suli Magana" with such knowledge that by the said act, the complainant may commit breach of public peace or any other offence and thereby the accused 1 to 7 have committed an offence punishable u/s 504 read with Section 149 of IPC?

(viii) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods threatened to the life of the complainant and thereby they have committed an offence punishable u/s 506 read with Section 149 of IPC?

(ix) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods knowing fully well that the accused belongs to Byadar by caste which comes under the category of Scheduled Tribe, wrongfully restrained and assaulted him and attempted to commit his murder and thereby the accused have committed an offence punishable u/s 3(1)(ii) of SC and ST (PA) Act, 1989?

(x) Whether the prosecution has further proved that on the above said date, time and place the accused being members of unlawful assembly with the above said common object and for the reason stated above arming themselves with weapons like iron rods knowing fully well that the accused belongs to Byadar by caste which comes under the category of Scheduled Tribe abused him touching the name of his caste in the words "Byadar Suli Magana" with intention to insult or humiliate him in the public view and in public place and thereby the accused have committed an offence punishable u/s 3 of SC and ST(PA) Act, 1989?

(xi) What sentence or order?

The Court below had answered Point Nos. 1 to 4 and 6 in the negative and answered Point No. 5 in the affirmative, insofar as the appellants are concerned and found the appellants to have committed offences punishable under Sections 324 and 342 read with Section 34 of the IPC and convicted the appellants to undergo imprisonment for a period of six months and to pay a fine of Rs. 10,000/- each for the offence punishable u/s 324 read with Section 34 of the IPC and to undergo imprisonment for three months and to pay a fine of Rs. 1,000/- each for the offence punishable u/s 342 read with Section 34 of the IPC, while acquitting the other accused. It is that, which is under challenge in the present appeal.

The learned Counsel for the appellants would take this Court through the record and seeks to support the several grounds raised in this appeal. It is pointed out that, the alleged eye-witnesses had turned hostile and it was claimed that, the appellants, with the other accused, were armed with the deadly weapons and that, the appellant 1 had assaulted the complainant with an iron rod on his head and appellant 2 had assaulted the complainant with iron rod on his right leg below the knee, which is contradictory to the claim of the complainant. Further, though the complainant had claimed that, he had produced his bloodstained clothes before the police at the hospital, but the record would indicate that, the clothes were seized on the next day, which is a contradiction not explained by the prosecution. There were said to be several eye-witnesses at the spot, but none of them had accompanied the complainant for the police station or the hospital. Therefore, the entire story of the prosecution is not consistent with the allegations. The entire case of the prosecution rests on the statement and evidence of the complainant and there is no corroborating evidence by any of the other witnesses. On the strength of the allegations made by the complainant alone, the case of the prosecution could not have been held to be proved beyond all reasonable doubt. The significant circumstance that, there are no independent witnesses supporting the case of the prosecution has been completely overruled.

It is further pointed out that, the Medical Officer, who had examined the complainant, has admitted that the X-ray report and the radiological report pertaining to the complainant was not produced. Therefore, one of the injuries, a grievous injury alleged by the prosecution, was a fracture of the left leg of the complainant. In the absence of the X-ray report and radiological report to indicate that, there was indeed a fracture, the Court below had no choice, but to hold that the fracture sustained by the complainant was not established. Hence, there was a serious doubt of the allegations about the complainant. The several witnesses to the panchanama having resiled from their statements to the effect that,'' they were signatories to the panchanama, would indicate that, there was no evidence to corroborate the statements of the complainant and therefore, could not be said that the prosecution had established its case. It is in this vain, that the learned Counsel for the appellants seek to point out several discrepancies, which could have been sustained the findings of the Court below.

While the learned Government Pleader would seek to justify the judgment of the Court below and would point out that, wherever the Trial Court had found that, there was incomplete evidence or inconsistencies, the benefit of the same had been given to the accused. It is in that regard that, in a detailed judgment, the Court below has thought it fit to acquit the several accused. However, it is found that the present appellants were indeed the named assailants, who had inflicted injuries, which could not be claimed to be self-inflicted and notwithstanding the finding of the Trial Court, that the fracture sustained by the complainant was not established by producing the necessary certificates, the other injuries having been spoken to by the medical practitioner, were sufficient to hold that they were inflicted by the present appellants. It is for that reason, that the Court below had held that, the injured witness having spoken to the same having been caused by the present appellants and that statement not having been displaced by the sustained cross-examination of the said witness, the Court below had restricted its findings against the appellants for the offence punishable under Sections 324 and 342 of the IPC, even though the allegations are of a serious nature involving offences punishable under various provisions of the IPC.

Hence, the alleged infirmities and inconsistencies, which are sought to be highlighted by the learned Counsel for the appellants, had been duly considered by the Court below and therefore, the limited grounds, on which the appellants have been convicted, cannot be faulted and the punishment imposed is also lenient and hence would not warrant interference by this Court, as the State has not sought to challenge the findings of the Trial Court and that the appeal be dismissed.

In the above contentions, it is to be noticed that, while the Court below had held, no case was made out against the several other accused, except the present appellants, it was in the circumstance, where the complainant had alleged that, all the accused have formed themselves into unlawful assembly and that the complainant was attacked by all of them, there are specific allegations of overt acts against each of the accused. Notwithstanding the same, the Court below had thought it fit to acquit the several accused except the present appellants. There is no circumstance made out by the Court below to indicate that, it is only as against these accused, there was sufficient evidence to establish the case of the prosecution. As could be seen, the allegations and the evidence are common against all the accused.

Therefore, in view of the several infirmities, which the Trial Court itself had accepted as being present in the case of the prosecution, namely that, there are no independent witnesses to support the case of the prosecution, though several have been named, in other words, there were 21 witnesses for the prosecution, of whom the Court below had found that, there is some relevance only insofar as the evidence of P.W. 19-the complainant, P.W. 20-the complainant''s father, P.W. 17-the Medical Practitioner and P.W. 18-the Deputy General Manager of Gokak Mills. Therefore, it is evident that, except P.W. 19, other witnesses, whose evidence the Court below had held relevant, were not eye-witnesses to the incident. P.W. 20-the father of the complainant, had arrived at the scene after the incident had taken place. It is also the allegation of the complainant that, the accused had run away on seeing his father.

Therefore, it is the sole testimony of P.W. 19, on the basis of which, the present accused have been found guilty of the aforesaid offences. In other words, when the Court below had held that the evidence was not sufficient to bring home the charges against all the accused, namely accused 1 and 4 to 7, the finding against these appellants, namely accused 2 and 3, when the allegations and the evidence was common, is inexplicable and cannot be accepted. The benefit of doubt, that is extended to the other accused ought to have also been extended to the present appellants. On that short question, there was no difference on the evidence against the other accused, who are acquitted for the offences and as against these appellants, the Court below was not justified in singling with the present accused for the different consideration, whereas the other accused should have given the benefit of doubt.

Consequently, the appeal is allowed. The accused are acquitted. The fine amount, if any paid by the accused shall be refunded. The bail bonds stand cancelled.