Sangamesh vs The State

K.N. Phaneendra, J.

The appellant has called in question the judgment of conviction and sentence passed against him by the II-Additional District and Sessions Judge (Special Judge), Gulbarga, on 02.11.2011 in Special Case No. 264/2010 convicting the appellant/accused for the offence punishable under Section 323 of IPC and sentencing him to pay fine of Rs. 5,000/- for the said offence and in default to pay fine, to undergo S.I. for a period of three months.

The brief factual matrix of the case that emanate from the records are that, the State through Station Bazaar Police Station, Gulbarga, has laid the charge sheet against the appellant/accused for the offences punishable under Sections 323, 324 of IPC and also under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, on the grounds that, the complainant by name Allama Prabhu examined as PW.1 was having a Bank Account in SBH Bank at Vidyanagar, Gulbarga; On 12.10.2009 when he had been to the bank, he has drawn a sum of Rs. 1,00,000/-. While returning, the appellant/accused a police personnel came to the said bank and picked up quarrel with the complainant and assaulted the complainant with his lathi. Because of the said assault, the lathi was broken and thereafter, the accused has assaulted him with his hands and kicked him with his boot-leg and also abused him in vulgar language taking his caste into task. At that time, one Revanasiddapa S/o. Saibanna was present and he rescued the complainant. Thereafter, the complainant has lodged a complaint with the Station Bazaar Police Station, Gulbarga, and the police after due investigation submitted the charge sheet. The Court has secured the presence of the accused and framed charges against him for the offences punishable under Sections 323 and 324 of IPC and Section 3(1)(x) of SC and ST (PA) Act, 1989.

The prosecution in order to prove the guilt of the accused, examined 18 witnesses as PWs.1 to 18 and got marked Exs. P1 to P18. The accused were also examined under Section 313 of Cr.P.C. As they did not choose to lead any evidence, the Trial Court after appreciating the evidence convicted the accused for the offence punishable under Section 323 of IPC imposing fine of Rs. 5,000/-.

Sri Ravi K. Anoor, learned counsel for the appellant strenuously contends that the Trial Court convicted the accused morally though there is no legal evidence. There are lot of contradictions and omissions in the evidence of the prosecution witnesses. More than that, the victim and the so-called eyewitnesses have not supported the case of the prosecution. This has not been properly considered by the Trial Court. The accused is a government servant and he has been falsely implicated into the crime. If the judgment of conviction and sentence is allowed to be continued, it will have severe impact on his job as well as on his future career. Therefore, he argued that the accused is entitled for acquittal.

Per contra, the learned High Court Government Pleader unsuccessfully tried to convince me that though there are contradictions and omissions in the evidence of the prosecution witnesses and also the complainant himself turning hostile, the incident of quarrel between the complainant and the accused has been established and the assault by the accused on the complainant is also proved. Therefore, judgment of conviction and sentence passed by the Trial Court does not call for interference.

On careful re-evaluation of the evidence on record, this Court has to consider whether the prosecution has proved the case alleged against the accused beyond reasonable doubt. It is not that proving of the incident and proving of the factual aspect is sufficient to send the accused behind the gallows. But the case of the prosecution should be of such a sterling quality, the Court should not incur any reasonable doubt which is sufficient to uproot the case of the prosecution. Therefore, in this background, it is just and necessary for this Court to re-look into the evidence of the prosecution witnesses.

PW.1-Allama Prabhu is the victim who has lodged the complaint as per Ex. P1. Ex. P1 discloses that the victim has made allegations that, on that particular day of the incident i.e., on 12.10.2009, he drawn an amount of Rs. 1,00,000/- from SBH Bank, Vidyanagar, Gulbarga. While coming back from the bank, there were three police personnel belonging to Ashok Nagar Police Station and they unnecessarily assaulted him. He specifically stated that Ramu G. @ Sangamesh (appellant) assaulted him with his hands and other two persons also assaulted with their hands. The said person also kicked him with boot leg and abused the complainant in filthy language referring to his caste. Looking to the above said first information report, the allegations are not only against the present appellant but also against other two persons. But the case has been registered and the charge sheet has been laid only against the present appellant. So according to the FIR, the accused person has assaulted the complainant with lathi and also with his hands and legs. It is also stated that the said lathi was broken, therefore, the accused has assaulted him with his hands. But PW.1-Allama Prabhu himself has turned totally volte-face to the prosecution. Even he has gone to the extent of saying that no incident happened and he has not lodged any complaint against the accused and he has not sated anything before the police.

PW.2-Sharanappa is a Field Officer. According to the prosecution, he came to know about the incident little later. But he also turned hostile to the case of the prosecution and he has stated that he has not given any statement before the police. PW.3-Revansiddppa is the so-called eyewitness to the incident but he also did not say anything about the incident. He totally given a go-bye to his alleged statement given before the police stating that he does not know anything about the case. PW.4-Sooganna has stated that, at 4.30 p.m. he came to know about some galata taken place near the bank, but he did not give any description as to how the incident happened and who assaulted whom and he even failed to identify the accused before the Court. PW.5-Karabasappa who is a Bank Manager was also examined before the Court as if he is an eyewitness to the incident. He also turned hostile to the case of the prosecution and even in the course of cross-examination nothing has been elicited. So far as these PWs.1 to 5 are concerned, during the course of their cross-examination, nothing has been elicited to come to the conclusion that they are the eyewitness to the incident and that the incident happened as stated in the first information report.

The prosecution mainly relied upon the evidence of PWs.6, 7, 8 and 16. PW.6-Mehatab Patel is also another police constable of Station Bazar Police Station. It is stated by him that on that particular day i.e., on 12.10.2009, he himself and Head Constable-Shashikanth had been to SBH Vidyanakar Bank at about 3.00 p.m., after receiving a call from some unknown persons. They observed two persons were quarreling with each other. PSI also came there and they resolved the quarrel. He has stated that the accused has assaulted the victim with his hands and also kicked the victim with his leg. Except this one sentence, he has not stated anything about the incident with regard to the assault by the lathi or kicking with boot-leg etc. Even in the first information report, the victim himself has not stated about the presence of this witness and the presence of this witness has not been spoken to. Further added to that, the complainant has implicated two more police officials, but who are those police officials is not forthcoming either in the charge sheet papers or during the course of evidence before the Court. It is very difficult to hold that this person was also an eyewitness to the incident. Even considering that he received the information at 3.00 p.m., by the time they reached the place of the incident what was transpired between the accused and the complainant and how the incident happened and within what span of time the incident was completed, ought to have been explained.

In this background, cross-examination of this witness-PW.6 also plays a dominant role. He has stated that this accused is a police constable. He has also stated that when he went there, 15 to 20 persons were already gathered but he could not say who are all those persons present. Unfortunately, it is suggested to this witness that on that day the victim himself was assaulting Sangamesh. Though in the cross-examination presence is admitted, but it cannot be said that the incident has happened as projected by the prosecution.

PW.7-Nazeerkhan is another Head Constable of Bheemarayanagudi Police Station. He has stated that on that particular day, Sangamesh had been to SBH Bank for the purpose of drawing his salary. At about 3.00 p.m. Sangamesh telephoned to this witness stating that there was some galata near the Bank and requested this witness to send somebody. Then only, PSI went to the spot.

PW.8-Ramkishan is a PSI of Nelogi Police Station. He has deposed that PW.7 informed this witness that he received telephone call from Sangamesh. Therefore, he had been to SBH Bank at Vidyanagar. He observed that Sangamesh and some other persons were quarreling with each other, by the time he reached the place, quarrel was resolved and they were exchanging verbal altercations with each other. The evidence of this witness is distorted. He never stated who assaulted whom and as to whether Sangamesh assaulted the victim. If so, what was the weapon and whether he assaulted with hands or legs etc., nothing has been stated. According to him, by the time he reached the place, the incident was over. PW.16-Shashikanth is a Head Constable of Station Bazar Police Station and he is an another eyewitness to the incident. He has stated that he also went to the spot on 12.10.2009 after receiving telephone call at about 3.00 p.m. When he went there, the accused and the complainant were quarreling with each other. The accused kicked the victim with his boot-leg. He never stated that the accused was holding any lathi or he assaulted with legs etc. Therefore, considering the evidence of these witnesses there are lots of contradictions with regard to the happening of the incident. According to the first information report, the incident happened at 3.45 p.m. on 12.10.2009 and three police persons were involved in the incident, but who are those three persons is not stated. But according to the evidence of the prosecution witnesses, PW.6-Mehatab Patel, PW.8-Ramkishan and PW.16-Shashikanth were present at the time of the incident. But according to his evidence, PW.8 went to the spot after the incident was over. The allegations must have been made by the victim against three police persons who were present at that particular point of time. Perhaps, victim has selected the other two persons as witnesses in order to implicate the present appellant/accused and that may be the reason, they have supported the case of the prosecution and they were exonerated at the time of filing of charge sheet. When such a doubt is created with regard to the presence of the witnesses and the conduct of the witness, in my opinion, evidence of such witness should not have been made basis for convicting the accused. Moreover, as I have already noted, their evidence is distorted. There are lot of contradictions with regard to they proceeding to scene of offence and the nature of the altercations taken place and manner of assault made by the accused on the victim. Particularly, when the victim himself has not supported the case of the prosecution, the Court should not have ventured upon to convict the accused on the basis of distorted doubtful evidence of other witnesses.

In this background, the evidence of PW.11-Dr. Chandrashekhar also plays an important role. PW.11-Dr. Chandrashekhar has stated that he examined PW.1 on 12.10.2009 at about 7.56 p.m. The victim has stated that he suffered injury due to assault by lathi. On examination, he found absolutely no external injury or internal injury nor the complainant has complained any pain on any part of his body. Accordingly, he issued certificate as per Ex. P12. Therefore, absolutely there is no evidence in support of the case of the prosecution. At this stage, it cannot be over-ruled that the victim with the support of some other persons might have lodged the complaint and later came to know that some mishap has happened. Perhaps, that may be the reason, he turned hostile to the case of the prosecution. Looking from any angle, on the basis of the legal evidence, judgment of conviction and sentence passed by the Trial Court is not sustainable and the same is liable to be set aside.

Hence, I pass the following:

ORDER

The appeal is allowed. Consequently, judgment of conviction and sentence passed by the II-Additional District and Sessions Judge (Special Judge), Gulbarga, in Special Case No. 264/2010 convicting the accused/appellant for the offence punishable under Section 323 of IPC is hereby set aside. Consequently, the appellant is acquitted of the said offence.

The bail bond of the appellant/accused and the bond executed by the surety, if any, is hereby cancelled.

If the fine amount is already deposited, the same is ordered to be refunded to the accused/appellant.