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Judgment
A.V. Chandrashekara, J—Heard the learned Government Pleader Sri. Sheshadri Jayashankar, Sri. Anilkumar Navadagi, the learned counsel for respondent Nos. 1 to 6 and Sri. Shivanand Pattanshetty, the learned counsel appearing for the victim.
Both the appeals are at the stage of admission.
Respondent Nos. 1 to 6 in both the appeals are accused in Special Case No. 28/2011, which was pending on the file of Special Judge/II Additional Sessions Judge, Bijapur.
Charge sheet has been filed against respondent Nos. 1 to 6/accused by the Dy.S.P., Basavana Bagewadi, Bijapur district, for the offences punishable under Sections 143, 147, 504, 506, 420 read with Section 149 of IPC and Section 3(i)(x) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
The facts leading to filing of the charge sheet against the accused, according to the prosecution papers, are as follows:
"a. Accused No. 1 - Tammannarao had agreed to sell his land bearing Sy. No. 531 of Basavana Bagewadi village to the complainant Sri. Harilal, in the year 1994, for total consideration of Rs. 2,52,000/- and a sum of Rs. 25,000/- had been received as advance. The case of the complainant - Harilal is that he had been put in possession of land bearing Sy. Nos. 531/2 and 531/1B of Basavana Bagewadi village and he is in possession of the same and has put up a farm house in the land in question.
b. It is alleged that accused No. 1 had postponed to execute regular sale deed on one pretext or the other and later on he had sold the said land in favour of accused No. 2 and his wife Shridevi for higher amount and thereby cheated him. It is alleged that when the complainant was in his land i.e., Sy. No. 531, on 25.06.2011, accused Nos. 1 to 6 came there and formed themselves into unlawful assembly, holding clubs and stones, with common object of committing offence. It is alleged that all the accused used criminal force against the complainant, abused him in filthy language with reference to his caste-Lamani and threatened him with dire consequences. CW.4 came there to rescue the complainant and accused also abused him in filthy language with reference to his caste and dragged him here and there. The complainant and CW.4 are the members of Lambani community, which comes within the purview of Schedule Caste."
The first information was lodged at about 2.00 p.m., on the same day before the respondent police station. On the basis of which, a case came to be registered in Crime No. 145/2011 for the offences punishable under Sections 143, 147, 504, 420 read with Section 149 of IPC and Section 3(i)(x) of SC & ST (P.A.) Act, 1989.
Investigation was taken over by the jurisdictional Dy.S.P. and charge sheet was filed. The following charges were leveled against the accused by the learned Judge, on 19.12.2012 are as follows:
CHARGES
"I, Sri. S.C. Maradi, B.A.LL.B. (Spl.), II Addl. Sessions Judge/Special Judge, Bijapur, do hereby charge you: Accused:
Tammannarao Krishnaji Managuli
Mahantesh Mallappa Hadagali
Venkatesh Basavaraj Chikkond
Suresh Guragondappa Chikkond
Suresh Ningappa Chikkond
Irganteppa Rampur
as follows:
That you Tammannrao Krishnaji Managuli being the owner of land bearing Sy. No. 531/2 and 531/1B of Basavana Bagewadi village agreed to sell said lands to the complainant Harilal Laxman Naik/CW.1 and by executing agreement of sale received advance of Rs. 25,000/- by handing over possession of the lands to the complainant who is cultivating the same by residing in the land itself and thereafter you have again sold the said lands to one Sridevi wife of your accused No. 2 Mahantesh Hadagali and cheated him.
On 25.06.2011 in the morning at about 11 a.m. when the complainant Harilal Naik CW.1 was in the above said land you accused No. 1 to 6 named above went their in Bolero Jeep No. GA-07/C-6768 by forming an unlawful assembly and the common object of which was to commit an offence of rioting and in furtherance of your common object picked up quarrel with complainant Harilal Laxman Naik/CW.1 and thereby committed an offence punishable under Sections 143 and 147 read with Section 149 of IPC within the cognizance of this Court.
Secondly that you accused No. 1 to 6 named above on the above said date, time and place being the member of an unlawful assembly and the common object of which was to commit an offence of rioting and in furtherance by going to the said land you have picked up quarrel with complainant Harilal Laxman Naik/CW.1 and abused him in filthy language, insulted in the public, knowing fully well that he belongs to scheduled caste insulted by taking his caste in the public place and thereby committed offence punishable under Sections 504 read with Section 149 of IPC and under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 within the cognizance of this Court.
Thirdly, that you accused No. 1 to 6 on the above said date, time and place being members of unlawful assembly and the common object of which was to commit offence of rioting and in furtherance put life threat to complainant Harilal Laxman Naik/CW.1 and caused alarm to his life and thereby committed an offence punishable under Section 506 read with Section 149 of IPC and within cognizance of this Court.
Lastly, that you accused No. 1 Tammannarao Krishnaji Managuli being the owner of land Sy. No. 531 Basavana Bagewadi village having entered into sale agreement with the complainant Harilal Laxman Naik/CW.1 to sell the land and having received advance of Rs. 25,000/-, then sold the said lands to Sridevi wife of you accused No. 2 Mahantesh Hadagali and thereby committed an offence of cheating punishable under Section 420 of IPC and within cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charges.
Dated: This 19th Day of December 2012.
(S.C. Maradi) Special Judge, II Addl. Sessions Judge, Bijapur"
The accused had pleaded not guilty and claimed to be tried.
In order to bring home the guilt of the accused, 11 witnesses have been examined out of 18 witnesses cited in the charge sheet. Exs. P1 to P8 have been got marked. Ex. D1 is the xerox copy of the notice, got issued by the complainant through his advocate Sri. S.S. Hiremath of Bagalkot. Ultimately, the learned judge has framed the following points for consideration:
POINTS
"1. Whether prosecution prove beyond all reasonable doubts, on 25.06.2011 at about 11:00 a.m. in the land bearing Sy. No. 531 situated adjoining Basavana Bagewadi-Bijapur road within the limits of Basavana Bagewadi, accused Nos. 1 to 6 formed into an unlawful assembly, the common object of which was to commit offence against the complainant and his brother Tarasingh/CW-4 and thereby committed an offence punishable U/s.143 of Indian Penal Code?
Whether prosecution further prove beyond all reasonable doubts that, on the same date, time and place, accused being the members of unlawful assembly and in furtherance of common object of such assembly, committed rioting by using criminal force against the complainant and his brother Tarasingh/CW-4 and thereby committed an offence punishable U/s. r/w s.149 of Indian Penal Code?''
Whether prosecution further prove beyond all reasonable doubts that, on the same date, time and place, accused being the members unlawful assembly and in furtherance of the common object of such assembly, abused the complainant and his brother Tarasingh/CW-4 in filthy words and intentionally insulted them with intent to provoke knowing it to be likely that such provocation would cause them to break public peace and thereby committed an offence punishable U/s.504 r/w 149 of Indian Penal Code?
Whether prosecution further prove beyond all reasonable doubts that, on the same date, time and place, accused being the members of unlawful assembly and in furtherance of the common object of such assembly, threatened the complainant and his brother Tarasing/CW-4 with their lives with intent to cause alarm to them and thereby committed an offence of criminal intimidation punishable U/s.506 r/w s.149 of Indian Penal Code?
Whether prosecution further prove beyond all reasonable doubts that, accused No. 1 being the owner of the land Sy. No. 531 of Basavana Bagewadi having entered into an agreement of sale of said land in favour of the complainant and handed over the possession of the said land to the complainant and received entire consideration amount in instalments and thereby sold the said land to one shridevi w/o accused No. 2 and thereby committed an offence of cheating punishable U/s.420 of Indian Penal Code?
Whether prosecution further prove beyond all reasonable doubts that, accused Nos. 1 to 6 abused the complainant and his brother Tarasing/CW-4 in filthy language with intent to humiliate them being members of Scheduled Tribe in a place within the public view and thereby committed an offence punishable U/s. 3(1)(x) of scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989?
What order?"
The learned Judge has answered all the points in the negative and ultimately acquitted all the accused.
Aggrieved by the judgment of acquittal passed on 18.09.2013, the State has filed an appeal before this Court in Crl.A. No. 200020/2014, aggrieved by the same judgment of acquittal of all the accused. The complainant Harilal has filed separate appeal before this Court in Crl.A. No. 200026/2014. Hence, both the appeals are taken up together for consideration and they have disposed off by the common judgment.
After going through the pleadings and hearing the learned counsel for the parties, the following points arise for consideration of this Court:
"1. Whether the trial Court is justified in coming to the conclusion that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubts?
Whether the trial Court is justified in acquitting all the accused?
Whether any interference is called for and if so, to what extent?"
In order to convict the accused, the prosecution is expected to bring home the guilt of the accused beyond all reasonable doubts. What is proof of reasonable doubt is succinctly explained by the Apex Court in the case of State of U.P. Vs. Krishna Gopal and Another, AIR 1988 SC 2154 : (1989) CriLJ 288 : (1988) 3 Crimes 195 : (1988) 3 JT 544 : (1988) 2 SCALE 632 : (1988) 4 SCC 302 : (1988) 2 SCR 391 Supp and paragraph of 13 of said judgment is relevant and extracted as follows:
"13. There might also be some justification for the grievance of the appellant that the High Court had preferred some observations in the medical evidence which Sri. Prithviraj characterised as merely conjectural answers to the other categoric answers by the very medical witnesses themselves. Sri. Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses'' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".
It is trite that where the eye-witnesses'' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses'' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the ''credit'' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to ''proof is an exercise particular to each case. Referring to of probability amounts to ''proof is an exercise the inter-dependence of evidence and the confirmation of one piece of evidence by another a learned author says: (See "The Mathematics of Proof II" : Glanville Williams : Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342).
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common-sense. It must grow out of the evidence in the case.
The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice."
The complainant-Hiralal''s case is that the lst defendant is the owner of lands bearing Survey Nos. 531/B and 531/2 and he had agreed to sell the same in his favour in the year 1994 for a sum of Rs. 2,52,000/- and had received Rs. 25,000/-. It is his case that the said lands have been handed over to him and he is in possession. The 1st defendant is stated to have cheated him by not executing the regular sale deed. It is further alleged that the 1st accused along with other accused persons, trespassed into the schedule land and threatened him with dire consequences and abused him with reference to his caste and even threatened to demolish the entire house put up by him. It is further alleged that 15-20 persons had also accompanied those accused persons and they caught hold of him and dragged him here and there and pulled his collar. If really the complainant was in possession of the property by virtue of the agreement of sale, his name would have found place in the revenue records, at least in column No. 12(2), a column earmarked for entering the name of the person in possession, though not in columns 9 and 10.
Exs. P6 and P7 are RTC entries in respect of Survey Nos. 531/1B and 531/2 measuring 8 acres and 4 acres respectively. The name of khatedar is shown as Mahantesh, son of Mallappa Hadagali in Ex. P6 and name of Sridevi, wife of Mahantesh is found as khatedar in respect of 4 acres pertaining to Survey No. 531/2 as depicted in Ex. P7. Under Section 133 of the Land Revenue Act, an entry found in the revenue records is deemed to be true and correct till the same is substituted by means of a valid order. No document is forthcoming as to the existence of the house in the land in question as alleged by the complainant in his first information lodged before the police marked as Ex. P1.
The first informant himself has been examined as PW1. He is an agriculturist residing at Jalihala Thanda. He has reiterated the contents of Ex. P1. He has been cross-examined at length by the learned counsel for the accused. Some useful admissions have been elicited from his mouth in regard to the pending judicial proceedings between the complainant on one hand and accused Nos. 1 and 2 on the other hand. He has deposed about 2 suits being filed by him against the 2nd accused in the civil court at Basavanabagewadi. He has admitted that an application had been filed on his behalf seeking temporary injunction against the 2nd accused relating to these lands in the said suits and no injunction has been granted in his favour. Apart from this, he has admitted that 2nd accused who has purchased the lands from the 1st accused has obtained an order of injunction against him, i.e. complainant from interfering with his peaceful possession and enjoyment of the lands in question.
Admittedly a serious civil dispute is pending between accused Nos. 1 and 2 on the one hand and the complainant on the other hand and in this regard the court is expected to cautiously evaluate the evidence of PW1 and the witnesses who have spoken about the alleged offence of trespass as well as abuse made with reference to the caste of PW1 and his brother. The best persons who could have spoken about the alleged incident are adjoining land owners. PW1 has admitted that to the east of the schedule land is the land of Kanteppa Kallur, to the west is the land of Ningappa Chikkond; to the north is road leading from Basavanabagewadi to Bagalkot and to the south is the land of Shankreppa Haariwal After the road is the land of Mudukappa Revanasiddappa. He has admitted that CWs-5 to 7 who allegedly came to rescue him are not the neighbouring land owners. The lst accused is residing at Bagalkot and he has feigned ignorance about the place of residence of 2nd accused when a specific question was put to him that the 2nd accused is living in Goa. CW6-Neelu Naik is the head of their community and is a member of Town Panchayat and is related to him.
PW2-Tarasingh, PW3-Neelappa Naik and PW4-Dharmanna were stated to be present when the alleged incident took place. They did not have any land adjacent to the lands in question. In his cross-examination, PW2 has admitted that the lst accused is not residing in Bagewadi village. Similarly PW3 has deposed that he was in judicial custody relating to Crime No. 108/13 of Bagewadi police for 15 days and has feigned ignorance about the offence for which he was detained by the police. In his cross-examination, he has deposed that the complainant and accused were engaged in verbal exchange of words and he abused them. PW3 is closely related to PW1 and does not have any land in the vicinity of the land in question.
PW4 is close to PW1 and his brother. He has admitted that normally his caste people would be called ''Lambani'' and if they are called so, they would not feel offended. From his evidence, it is clear that the use of the word ''Lambani'' is not an offensive word. PW5- Vishwanath Kallur has been examined to prove the factum of possession by PW1. No document is forthcoming in regard to the agreement of sale. If really PW1 was in possession of the land, police would have definitely invoked Section 447, I.P.C. for trespassing into the land. PW6 has deposed about PW1 being in possession of the land on the strength of the agreement of sale. As already discussed, no document is forthcoming evidencing the alleged possession.
PW7 is stated to have mediated between PW1 and 1st accused relating to the agreement of sale and receipt of Rs. 25,000/- by the lst accused. He does not know anything about the alleged interference and offence. Without producing the document evidencing the agreement of sale, his evidence is of no consequence. PW8 is Sangappa Sharanappa, attestor to Ex. P4-spot mahazar. PW9-Dharmanna is an eyewitness to the incident in question. He has deposed in his examination-in-chief about the accused trespassing in his land and abusing PW1 and his brother with reference to caste and holding out threat with dire consequences. He is basically a lawyer by profession. He practices in Bagewadi as well as Bagalkot. He resides in Lavaneshwar Tanda village. He has admitted about the notice being got issued to the lst accused at the instance of PW1 through his senior relating to specific performance. He has admitted Ex. D1 as the copy of notice got issued.
PW10-Godeppa Rayappa, ASI, registered the case and PW11-Vittal Parashuram Jagali, DSP, conducted investigation. Prosecution is expected to prove that PW1 was in possession of the property in question and he had put up a farm house there. Unless that basic aspect is proved, it is difficult to accept the case of the prosecution. These aspects have been taken into consideration by the trial court in right perspective. Admittedly lst accused was the absolute owner of the property in question and has conveyed the same to 2nd accused. Apart from this, 2nd accused had already obtained an order of temporary injunction against PW1 and therefore he was entitled to rebut any sort of interference by any person who has no authority. Therefore, self-defence as per Section 104 of the Evidence Act should also be taken into consideration while evaluating the evidence in a case like this.
PWs-5, 6 and 7 have not deposed about the alleged incident of quarrel that took place on 25.6.2011. They have only deposed about execution of the agreement of sale in favour of the complainant and possession being handed over to him. There are inherent inconsistencies in the oral evidence of PWs-1, 2, 3, 4 and 9. PW2 has not at all deposed that accused Nos. 1 and 2 held the shirt of the complainant and pulled him or that he went to the rescue of his brother, or that lst accused threatened the complainant with dire consequences to his life if he did not vacate the land. There is no material corroboration in the evidence of witnesses who are closely related to each other. Necessary discussion in this regard is found at paragraph 15 of the judgment. In paragraph 18, the learned judge has doubted the credibility of the evidence of PW1 who has admitted about injunction being granted against him from interfering with the peaceful possession and enjoyment of the land purchased by accused No. 2 from the 1st accused. Being armed with an order of temporary injunction, accused No. 2 is entitled to protect his protection.
Admittedly there is a civil dispute pending between the 1st accused and the complainant. PW1 and his brother are inimically disposed towards the accused and therefore, the trial court has scrutinized the entire evidence slowly but cautiously. On such close scrutiny, the trial court has found that their evidence is full of glaring inconsistencies vis-�-vis the contents of Ex. P1-first information and has held that PWs-3, 4 and 9 belong to the same caste and they are partisan in nature. This court does not find reason to interfere with such finding even on a careful evaluation of evidence. PW1 has deposed that Shankreppa and Tammannarao abused him in filthy language, but the I.O. has not sent both of them for trial. This also speaks in volumes about the credibility attached to Ex. P1 which is a detailed first information.
Learned counsel, Mr. Anilkumar Navadgi has argued that the complainant has ingeniously invented a way to seek vengeance against accused Nos. 1 and 2, being unsuccessful in his suits. He has argued that the provisions of Section 420, I.P.C. is not applicable to the facts of this case as the matter is civil in nature. There appears to be a strong force in this submission. The alleged incident is stated to have taken place because of the alleged cheating and PW1 has thoroughly failed to prove the said aspect. Suffice to state that the learned judge has tested the entire evidence on the touchstone of intrinsic probabilities and has carefully analyzed the entire evidence to come to the conclusion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Taking into consideration the overall facts and circumstances of the case and evidence, the trial court is justified in holding that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Hence, point No. 1 is answered in the affirmative.
Point Nos. 2 and 3: In view of my finding on point No. 1, point No. 2 is answered in the negative. In view of findings on point Nos. 1 and 2, no interference is called for and the learned judge of the trial court is justified in acquitting the accused. There are no merits in the appeal filed by the State and the complainant.
Accordingly both the appeals are liable to be dismissed. Accordingly the appeals are dismissed as unfit for admission.