T. Devaraja vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellants, who are arrayed before the Trial Court as accused 1, 2, 3, 9, 10, 11 and 13, respectively. In all, there were 23 accused before the court below. They were residents of Ibasapura Village, either belonging to Vokkaliga community, Achar community or the Ganiga community. It is stated that one Ramu who was examined as PW-9, was a member belonging to the Scheduled Caste and was visiting his father-in-law at Ibasapura village. He was said to be attending masonry work.

It is alleged that on 6.5.1999 at about 6.00 p.m., PW 9 is stated to have been noticed helping a dumb girl by lifting the head load. She belongs to an upper caste. It is alleged that the accused persons who had witnessed PW 9-Ramu, had mistaken his conduct as being an attempt to molest the girl who belonged to their community It is alleged that accused 13, 23 and 8 had sent word through PW 6-Talavar Anjinappa, who also belonged to Scheduled Caste, to secure Ramu before them. PW 6-Talavar Anjinappa therefore, had gone in search of PW 9 to his house. But having not found him, he had come to report the matter to the accused. In the meanwhile, accused 12, 13, 14 and 23 are said to have accosted PW 9 and had dragged him to the Panchayath Katte. They had beaten him and kicked him and threatened him to leave the village. It is claimed that PW 9 escaped from them. In the meanwhile, PW 6 who was on the way was accosted by accused 12, 14 and 23 and snatched the stick from the hands of PW 6 and he was assaulted with the very stick. Therefore, PW 9 and PW 6 had brought the matter to the attention of one Suresha, the complainant who was convener to "Karnataka Dalitha Sangha" at Devanahalli and since he was espousing the cause of the Scheduled Caste people and helping them to hail their grievance before the competent authority.

It is claimed that on 8.5.1999, at 8.30 p.m., when PW 1-Suresha had gone out to urinate, accused 3, 8 and 9, along with other accused armed with deadly weapons had accosted him and threatened to assault. But however, PW 1 is said to have escaped. But when he did not return home immediately, his father PW 2-Muniyappa had gone in search of him and when PW 2 had reached the Udupi Brahmin Hotel, a mob of 50 persons including the accused are said to have surrounded and assaulted him with clubs and weapons as a result of which he is said to have fractured his left leg.

On the next day, it is claimed that PWs. 1, 2 and 8 Manjunatha son of PW 2 sought to report the matter to the police, went to bring a taxi to take the injured to the hospital. Accordingly, PW 8 had brought a car from Vijayapura driven by PW 11-Pasha. The injured persons, namely, PWs. 1, 2 and 6 and other members belonging to the Scheduled Caste, namely, PW 3-Kaiyappa, PW 4-Arunkumar, PW 5-Channappa and PW 7-Anjinamma wife of PW 2 had all got into the car and proceeded towards Vijayapura. When the car reached the shop of accused No. 4-Angadi Ramanna, all the accused are said to have surrounded the car and dragged the inmates of the car one by one and assaulted with rods and clubs, causing injuries. It is further alleged that the accused dragged PWs. 1, 2 and 7 to a nearby manure pit and thereafter had pushed him. They were all taken in a tractor to the hospital for treatment by other by-standers. From the hospital, PW 1 is said to have made a written complaint, on the basis of which the police of Vijayapura Police Station had registered a case in Crime No. 51/1999 against 19 accused persons and had forwarded the First Information Report to the Court. After further investigation by the Deputy Superintendent of Police, Doddaballapura Sub-Division, charge sheet was laid against the accused. All the accused had obtained bail. Thereafter, charges were framed against the accused for offences punishable under Sections 143, 147, 148, 341, 323, 324, 307, 506 read with Section 149 of Indian Penal Code, 1860 and Section 3(1)(ii)(x) and (xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 149 of Indian Penal Code, 1860. The accused pleaded not guilty and claimed to be tried. Thereafter, the prosecution had tendered witness and examined 18 witnesses in support of the case and had marked MOs. 1 to 22. The defence had tendered evidence in contradiction of the statement of PW 7 and produced Ex. D1. The accused were then examined u/s 313 of the Code of Criminal Procedure, 1973 and denied the incriminating circumstances said to be alleged against them. But did not choose to adduce any oral or documentary evidence. The Trial Court after hearing the Prosecution and the accused had framed the following points for consideration.

1) Whether the prosecution proves beyond all reasonable doubt that the occurrence took place on 9.5.1999 at about 9.30 a.m., at Ibasapura village, in front of the shop of accused No. 4-Angadi Ramanna?

2) Whether the prosecution further proves beyond all reasonable doubt that during the occurrence, all the accused were members of an unlawful assembly armed with deadly weapons like clubs and choppers?

3) Whether the prosecution further proves beyond all reasonable doubt that in prosecution of the common object of the said unlawful assembly, the accused persons wrongfully restrained PW 1 to PW 7 and assaulted them with clubs and rods, with intent to cause the death of aforesaid witnesses?

4) Whether the prosecution further proves beyond all reasonable doubt that, the accused persons not being the members of Scheduled Caste or Scheduled Tribe, intentionally insulted and abused the prosecution witnesses namely, PW 1 to PW 9 in public view and also molested the women belonging to Scheduled Caste and committed the above offences against the members of Scheduled Caste, rendering them liable for punishment under the provisions of S.C. and S.T. (Prevention of Atrocities) Act, 1989?

5) What the offences made out against the accused?

The Trial Court had held that insofar as points 1 to 5 are concerned that the Prosecution had proved the guilt of accused 1, 2, 3, 8, 9, 10, 11 and 13 for the offences punishable under Sections 143, 148, 341, 325 read with Section 149 of the Indian Penal Code, 1860 and the other charges were held not proved. On the basis of the same had sentenced the said accused for the offence punishable u/s 325 read with Section 149 of Indian Penal Code, to undergo simple imprisonment for a period of six months and pay fine of Rs. 500/- each and for the offences punishable under Sections 143, 148, 341 read with Section 149 of the Indian Penal Code, 1860, the said accused were sentenced to pay fine of Rs. 500/- in each of the above offences and the period of custody undergone by the respective accused during trial had given set off against the substantive sentences of imprisonment. It is that, which is under challenge in the present proceedings.

The learned counsel for the appellants would firstly point out the glaring circumstances that though it is sought to be brought on record that the genesis of the alleged attack of the injured was on 6.5.1999, there is no attempt made to frame any charges on those allegations. Nor is there any charge framed insofar as the subsequent alleged attack on PW-1 and the attack on PWs 2 and 7 causing injuries to them.

The case of the prosecution however is restricted to PWs 1 to 7 and several others while on their way to the Hospital for treatment on 9.05.1999, that they were waylaid by 19 accused and had been dragged out of the car one by one and all the inmates were said to have been assaulted with deadly weapons by all the accused, causing grievous and other injuries.

It is pointed out that insofar as PW-2, the father of PW-1 is concerned, though it was claimed that he had suffered a fracture of the left leg and further that he had suffered many injuries near Udupi Hotel on 8.5.1999 and on the next day i.e., 9.5.1999 near the house of Angadi Ramanna, but a plain reading of the Wound Certificate produced in support of the contention discloses that PW-2 had suffered three injuries in all, which would show that there is no substance in the allegations and the very incident said to have taken place on 9.5.1999 is rendered doubtful. Similarly, it is pointed out that the evidence of PW-3 Kaiyappa discloses that on 9.5.1999 in the early hours, he was summoned by PW-1 Suresha and Suresha along with his father had suffered grievous injuries on the previous night and requested him to take him to the Hospital, but Suresha had denied that he had suffered any injuries on the previous date of the incident. However, though PW-1 claimed to have been attacked but not injured, PWs 2 and 3 have claimed that he was injured. This again throws serious doubt on the manner in which the incident alleged is said to have occurred and the sequence of events are doubtful as sought to be made out by the prosecution. It is further pointed out PW-4 Arun Kumar had claimed that he suffered injuries on 9.5.1999 at 9.00 a.m. but he further claims that he had not suffered severe injuries and that he was not even treated as an in-patient. However, the Medical Certificate of the said witness discloses that he was an in-patient from 9.5.1999 to 13.05.1999, which would establish that this witness had not suffered any injuries even according his own claim and that the Medical Certificate produced was apparently a false and a got-up document. Further, PW-5 Channappa in order to prove the charge against the accused, had tendered evidence to the effect that on 8.5.1999 at about 9.30 p.m., he was assaulted by people of the village and that he had suffered injuries. Therefore, he had left the village in the early hours of 9.5.1999 to obtain medical treatment at Chikkaballapur Hospital. However, the learned Trial Judge has placed much reliance on this witness to prove the charge against the accused. PW-6 had stated that he had suffered some injuries during the night of 8.5.1999.'' However, the medical certificates discloses that there were no visible injuries and hence, it is doubtful whether he was injured at all. PW-7 Anjanamma claims that she along with her husband and son were thrown into a manure pit and they lay there till 3.00 p.m. and thereafter they were shifted to Chikkaballapur for treatment and they went to Chikkaballapur Hospital at 6.00 p.m. But the Wound Certificate discloses that all the injured witnesses were in the Hospital at 2.30 p.m., which clearly indicates that the Wound Certificates were fabricated to suit the case of the prosecution. Further, the complaint is inordinately delayed. Though the incident had occurred between 9.00 and 9.30 a.m. according to the prosecution, the complaint lodged was at 5.45 p.m. When the distance between the place of the incident and the Police Station was 7 kms., there was no explanation forthcoming insofar as the delay in filing the complaint was concerned. In this manner, the learned counsel takes the Court through the record to demonstrate that the allegation as to 19 of the accused having attacked the witnesses as aforesaid, is not established having regard to the serious discrepancies and inconsistencies which are apparent from the record, which the court below has overlooked, though it has acquitted several of the accused including Accused Nos. 20 to 23, as apparently they were sought to be roped in as the accused having committed offences pertaining to some other incident and it was wholly irrelevant. The court below had acquitted other accused to whom overt acts were attributed by the several witnesses. Therefore, by the same token of reasoning when the court did not find any substance insofar as the accusations made against the other accused out of 19 accused who were acquitted, a different yardstick being applied to the present accused who are convicted, results in a miscarriage of justice and cannot be justified.

Insofar as the allegations of offences punishable under the provisions of the SC & ST (Prevention of Atrocities) Act, 1989 is concerned, the court below has rightly held that there was no foundation laid for the said offences having been committed and therefore, there was no justification in the court below having proceeded to impose the punishment on the accused. Therefore, the learned counsel seeks that the appeal be allowed and the judgment be set-aside insofar as the present appellants are concerned.

The learned State Public Prosecutor on the other hand would seek to justify the judgment of the court below.

In the light of the above contentions and on an examination of the record, it is to be noticed that the court below has straightaway held at Paragraph 34 that the prosecution had made omnibus allegations that all the accused were present at the spot of occurrence as members of unlawful assembly and all of them attacked the injured and caused injuries and further that the said omnibus allegations would not be sufficient to hold that all the accused were guilty of the charges leveled against them and that the burden was heavy on the prosecution to prove the presence of each of the accused in order to hold them guilty of the offences with which they are charged.

However, the court then proceeds to hold that the evidence of PWs 1 to 9 and PW-11 would establish satisfactorily and convincingly that the incident took place on 9.5.1999 at about 9.00 a.m. in front of Angadi Ramanna''s shop and that the accused had obstructed the car in which PWs 1 to 4 and PW-6 and 7 were proceeding to Hospital and they had been dragged out of the car and each of them were assaulted with deadly weapons, as a result of which PWs 1, 2 and 3 had sustained simple injuries as well as grievous injuries, while PW-4 had sustained simple injuries. The weapons used had been identified and significantly, the court below has held that since there were a large number of accused that were involved, it would be unrealistic to expect the witnesses to speak with any accuracy as to the use of the weapons by the individual accused and about the overt acts committed by each of them. But then again, proceeds that on the basis of their evidence, the material witnesses having stated the specific overt acts of some of the accused, it would be sufficient to bring home the charges against the said accused. But however, since in the absence of corroborating evidence in proof of the guilt of the other accused 4 to 7, 12, 14 to 23. the court below has given them the benefit of doubt. Insofar as the other allegations as regards offences punishable under the provisions of the SC & ST (Prevention of Atrocities) Act, 1989 Act is concerned, the court below has held that the prosecution has failed to prove the allegations.

In the light of the manner in which the court below has proceeded to hold that on the basis of the testimony of the several witnesses, wherever there was corroboration of evidence as regards the overt acts of some of the accused, they have been found guilty, while other accused against whom there was no corroborating evidence, the court below has thought it fit to acquit them. In the above background, it is to be kept in view that though it was brought to the attention of the court below that the genesis of the alleged enmity arose with the action of PW-9 seeking to assist a girl belonging to another community which was viewed as an attempt on his part to molest the girl and thereafter there having been several incidents of the accused having attacked PW-2, PW-5 and PW-6 and thereafter finally the incident in respect of which the prosecution has actually brought, is the incident that has occurred on 9.5.1999, while ignoring the earlier incidents. This is possibly on account of the prosecution not having chosen to place any material before the Court requiring the court to frame any charges in respect of the earlier incidents, which are taken note of by the Trial Court, but which are however overlooked in framing the charges. The fact however remains that the court also has noticed that there were a large number of accused and it was impossible for the witnesses to state with any consistency as to the overt acts that could be attributed to each of the accused. But yet holds that there was adequate material to convict the several accused who are the appellants herein.

In the opinion of this court, the above circumstances would be adequate to hold that the prosecution) has not established its case beyond all reasonable doubt. However, the fact remains that the witnesses were all injured and some of them had suffered grievous injuries such as PW-1, 2 and 3 and PW-4 had suffered simple injuries. Though there were said to be nine persons in the car who were all attacked by the accused, the injured persons are only four in number. But however, the injuries are present and that cannot be ignored. The presumption therefore is that, though there was possibly an attack by some of the accused on the victims, the manner in which the prosecution has sought to present the case is inconsistent.

Therefore, in the opinion of this Court, it was incumbent on the prosecution to come forward with a consistent and cogent case against the accused and only in order to avenge the injured victims, a large number of accused being roped in, is apparent on the face of it. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt. The Trial Court itself having acquitted several of the accused holding that the accusations of offences punishable under other provisions were not even established, there was no scope to arrive at findings against the present appellants when the yardstick in a court finding that the prosecution had established its case beyond all reasonable doubt would be the same as against the present appellants as well. Consequently, the appeal is allowed. The judgment of the court below is set-aside. The accused are acquitted. The bail bond stands cancelled. The fine amount if any deposited, shall be refunded to the appellants.