V. Nagaraj vs State by Whitefield Police, Bangalore

A.N. Venugopala Gowda, J.—This appeal is by the accused 16 and 19, in Special Case Nos. 47 of 2001 and 34 of 2002, on the file of the II Additional Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru. By a common judgment passed on 5-12-2009, accused 16 and 19 were found guilty of the offences punishable under Section 427 read with Section 34 of Indian Penal Code, 1860 and accused 19 was found guilty of the offence punishable under Section 332 of IPC and were sentenced to undergo simple imprisonment and pay fine.

Chinnappa-P.W. 1, lodged a complaint-Ex. P. 1, on 24-5-1996, before the Whitefield Police Station. A case in Crime No. 96 of 1996 was registered for the offences punishable under Sections 143, 144, 147, 148, 149, 307, 332, 427 and 448 of IPC read with Section 3(2)(iii) and 3(2)(iv) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by A.B. Rajendrakumar-P.W. 14. FIR vide Ex. P. 14 was sent to the Special Judge. Investigation was conducted by N. Narasimhaiah-P.W. 13, the then Circle Inspector of Police, in the Whitefield Police Station. After completion of investigation, P.W. 13 filed the charge-sheet against 36 persons for the offences punishable under Sections 143, 147, 148, 149, 332, 333, 448, 427, 30? and 114 of IPC and Section 3(1)(x), 3(2)(iii), 3(2)(iv) and 3(2)(v) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused 2 to 10, 12 to 16, 18 to 30 and 32 to 36 appeared and when the charge was read over, pleaded not guilty and claimed to be tried. Accused 31, who was absconding, having been traced and produced, Special Case No. 34 of 2002 was registered by the II Additional Sessions Judge and Special Judge, Bengaluru Rural District. Common trial was held. The prosecution examined 14 witnesses, as P.Ws. 1 to 14 and marked 15 documents, as Exs. P. 1 to P. 15 and M.Os. 1 to 7. On behalf of the defence, Ex. D. 1 was marked. After closure of the prosecution case, the accused were questioned under Section 313 oi Criminal Procedure Code, 1973 and they denied the incriminating circumstances put to them, as appearing in the evidence of the prosecution witnesses. The accused did not choose to lead any defence evidence.

Considering the rival contentions and the record, the following points were raised for consideration:

"(1) Whether the prosecution proves that on 24-5-1996 at about 7.30 p.m. at Nallurahalli Village, the accused persons formed an unlawful assembly with the common object of committing offences and thereby committed an offence punishable under Section 143 of IPC?

(2) Whether the prosecution proves that on the day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, the accused persons committed rioting and thereby committed an offence punishable under Section 147 of IPC?

(3) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, the accused persons armed with deadly weapons like club, stones, stone pieces, were members of the unlawful assembly the common object of which was to assault P.W. 1-Chinnappa and thereby committed an offence punishable under Section 144 of IPC?

(4) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, the accused persons armed with deadly weapons like club, stones, stone pieces, committed rioting and thereby committed an offence punishable under Section 148 of IPC?

(5) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, accused 16,19,21 and 22 assaulted P.W. 2-Munikrishna with brick pieces on his face and legs causing bleeding injuries to him and accused 1 and 19 assaulted P.W. 3-Ramesha with club and brick piece on his body and stomach causing bleeding injuries and thus prevented and deterred P.Ws. 2 and 3-public servants from discharging their duty and thereby accused 2 to 4, 6 to 10, 13 to 16, 18 to 22 and 24 to 36 committed an offence punishable under Section 332 read with Section 149 of IPC?

(6) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, accused 16,19,21 and 22 assaulted P.W. 2-Munikrishna with brick pieces on his face and legs causing him grievous injuries and thus prevented and deterred P.W. 2-Munikrishna, a public servant from discharging his duty and thereby accused 2 to 4, 6 to 10, 13 to 16, 18 to 22 and 24 to 36 committed an offence punishable under Section 333 read with Section 149 of IPC?

(7) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, the accused persons committed trespass into the house of P.W. 1-Chinnappa and thereby accused 2 to 4, 6 to 10, 13 to 16, 18 to 22 and 24 to 36 committed an offence punishable under Section 448 read with Section 149 of IPC?

(8) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, the accused persons damaged Maruthi Van bearing Registration No. K.A.01-N-3112 and Autorickshaw bearing Registration No. K.A.03-5736 by setting fire to them and damaged the window glass, door, of the house of P.W. 1, Kinetic Honda motorbike bearing Registration No. K.A.01-7576 and caused wrongful loss of Rs. 4 Lakhs to P.W. 1 and thereby committed an offence of mischief punishable under Section 427 read with Section 149 of IPC?

(9) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, in prosecution of the common object of the unlawful assembly, the accused persons attempted on the lives of P.W. 1-Chinnappa, P.W. 2-Munikrishna and P.W. 3-Ramesha and in fact caused injuries to P.Ws. 2 and 3 and thereby committed an offence punishable under Section 307 read with Section 149 of IPC?

(10) Whether the prosecution proves that on the aforesaid day, time, place and circumstance, accused 1 to 15 not being the members of Scheduled Castes or Scheduled Tribes, abused P.W. 1-Chinnappa, a member of Scheduled Caste, intending to humiliate him in public view and thereby accused 1 to 15 and 31 committed the offences punishable under Section 3(1 )(x), 3(2)(iii) and 3(2)(iv) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989?

(11) What order?"

The learned Trial judge, by a judgment dated 5-12-2009, acquitted all the accused, except accused 16 and 19, who were found guilty in respect of the aforesaid offences and were sentenced, as above.

Sri G.G. Chagashetti, learned Advocate, contended that the evidenced prosecution witnesses and the marked documents having not made out the ingredients of the offences under Sections 427 and 332 of IPC, the finding of guilt recorded by the Trial Judge is wholly erroneous. Learned Counsel submitted that the evidence of prosecution witnesses being inconsistent and contradictory and there being no credible evidence, the finding of guilt recorded against the accused 16 and 19 is wholly erroneous and illegal. Learned Counsel submitted that without there being any legal evidenced proof of the prosecution case, as against the appellants, the finding of guilt recorded against them is wholly erroneous. Learned Counsel by taking me through the record of the case submitted that there being misreading of evidence and omission to consider the relevant evidence, the finding of guilt recorded being perverse, is liable to be set aside.

Sri B. Visweswaraiah, learned High Court Government Pleader, made submissions in support of the finding recorded by the learned Trial Judge against the accused 16 and 19 and sought dismissal of the appeal.

Keeping in view the rival contentions and the record of the case, point for consideration is, whether the Trial Court has committed error in holding the appellants-accused 16 and 19, guilty of the offence punishable under Section 427 read with Section 34 of IPC and appellant 2-accused 19, guilty of the offence punishable under Section 332 of IPC and in sentencing them?

The alleged incident occurred on 24-5-1996 at about 7.30 p.m. Complaint vide Ex. P. 1 was filed by P.W. 1 and was registered at 11.30 p.m. In Ex. P. 1, there is allegation against 100 persons. Case was registered by P.W. 14, in Crime No. 96 of 1996, for the offences punishable under Sections 143, 144, 147, 148, 149, 307, 332, 427 and 448 of IPC read with Section 3(2)(iii) and 3(2)(iv) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The investigation was undertaken by P.W. 13-CPI, Whitefield Police Station. P.W. 13 being not the Designated Officer, in terms of Rule 7 of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 the Trial Judge has rightly held that the investigation being vitiated i.e., having been conducted by an officer below the rank of Deputy Superintendent of Police, the accused persons cannot be held guilty of the offence punishable under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (see State of Andhra Pradesh v. Viswanadula Chetti Babu, (2010) 15 SCC 103.

Though the case was registered by P.W. 14, against 46 persons, after conducting the investigation, charge-sheet was filed against 36 persons by P.W. 13. The incident allegedly took place at 7.30 p.m. The distance between the place of alleged incident and the police station is about 1 km., as is evident from the statements made by the prosecution witnesses i.e., P.Ws. 2 and 3, the ASI and police constable respectively. There is inordinate delay in the matter of lodging of the complaint-Ex. P. 1. Though, P.Ws. 2 and 3, the police personnel, were allegedly present at the spot, when the incident in question allegedly took place and their duty was allegedly obstructed and they were injured, complaint was not filed by them.

When a mob of about 100 persons had assembled and the alleged incident took place at a distance of about 1 km. from the police station, it is unbelievable as to how the police station was not alerted and extra police personnel was not requisitioned to the scene of occurrence. No explanation has been offered for the inordinate delay in lodging of Ex. P. 1 by P.W. 1 and the failure of P.Ws. 2 and 3, who had a vehicle, in not alerting the police station to send additional force for controlling the mob.

P.Ws. 2 and 3, though stated to have gone to the police station in the midnight, their statements have not been recorded, i.e., on the same day. P.Ws. 2 and 3 have obtained medical treatment, leisurely, i.e., on the following day. Injuries found on P.Ws. 2 and 3, as per Exs. P. 6 and P. 7 are simple in nature. There are contradictions in the evidence of prosecution witnesses with regard to the blood having been found on the uniform worn by P.Ws. 2 and 3. The bloodstained clothes of P.Ws. 2 and 3 was not seized and sent for FSL. The blood of P.Ws. 2 and 3, allegedly found on the spot, as per the statements made by the prosecution witnesses, was not collected and sent to the FSL. Ex. P. 2-the spot mahazar, does not even make any reference to the blood having been found on the spot of the incident. Ex. P. 2 has been signed by P.Ws. 1, 4 and 7. P.W. 4 is the son of P.W. 1 and is an interested witness. P.W. 7 has not supported the prosecution case in its entirety.

The learned Trial Judge having found the evidence of prosecution witnesses as not credible has passed the judgment of acquittal in respect of all other accused by answering Point Nos. 1 to 4, 6, 7, 9 and 10 in the negative.

Having regard to the above, in my considered view, the case against the accused 16 and 19 has not been proved beyond reasonable doubt(s) and hence, it is not safe to convict them. The Trial Court having found the prosecution case to be doubtful in respect of large number of accused has erred in holding accused 16 and 19 guilty. The benefit of doubt extended to other accused enures even to accused 16 and 19-appellants herein. Hence, there is need to interfere with the impugned judgment as the findings against accused 16 and 19 are perverse.

In the result, the appeal is allowed and the judgment dated 5-12-2009 passed in Special Case Nos. 47 of 2001 and 34 of 2002 by the II Additional Sessions Judge and Special Judge, Bengaluru Rural District, Bengaluru, holding the accused 16 and 19 guilty of the offences punishable under Section 427 read with Section 34 of IPC and accused 19 guilty of the offence punishable under Section 332 of IPC, is set aside. The prosecution having failed to prove its case as against accused 16 and 19 beyond all reasonable doubts, they are acquitted of the aforesaid offences. Bail bonds executed by the appellants and the sureties is cancelled.