G D NANJEGOWDA @ VASU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant and the learned Government Pleader.

(2.) THE facts leading up to this case are as follows: According to the complainant, who was said to be a person belonging to a Scheduled caste and employed as a 'Kulawadi', that on 8.10.2009, at about 8.30 p.m., the village elders had ordered him to make an announcement by way of a proclamation. While the complainant had embarked on this assignment, to make an announcement at the Ganapathi temple, it is alleged that the accused had wrongfully restrained him and abused him calling him 'boli magane' and he was threatened not to make any announcement, as instructed by one Lava and that he should make the announcement as directed by him, while roughly holding him by the collar of his shirt and further abusing him as 'holeya nanna magane, soole magane', etc., It is stated that this had occurred in the presence of witnesses, Lava, Kumara and Manju, who had come there and rescued him. It was the complainant's further case that this last incident was the culmination of such harassment spread over several days when he was abused in similar language by the accused. Therefore, the complainant had informed the village elders of the said assault and thereafter had filed a complaint on 10.10.2009, which was clearly 2 days after the alleged incident. On the basis of the complaint, a case was said to have been registered in Crime No.155/2009 for offences punishable under Sections 341, 323 and 504 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). The investigating officer, after having visited the scene of offence, is said to have conducted the mahazar in the presence of witnesses. The complainant was also taken to the Primary Health Centre for treatment and a wound certificate is said to have been issued as Per Exhibit P.6. After investigation of the offence, where it was disclosed that the accused did not belong to a Scheduled Caste or a Scheduled Tribe, the appellant was charge sheeted and a case was registered in Special Case No.53/2009 and the court below had framed charges against the accused for offences punishable under Sections 341, 323 of the IPC, and Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the 'SC & ST Act', for brevity). The accused had pleaded not guilty and had claimed to be tried. The prosecution had then examined PWs.1 to 8 and marked exhibits P.1 to P.6. The defence had tendered evidence through DW.1 and marked exhibits D.1 to D.7. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 and after hearing both the sides, the court below had framed the following point for its consideration:

(3.) THE learned Counsel for the appellant would firstly point out that the entire case is falsely foisted against the appellant and that he was not even present in the village on the date of the incident. In this regard, he had tendered evidence which has been trashed by the trial court. The learned Counsel would submit that the evidence tendered was to the effect that the appellant was a resident of Mysore and he was also shown as a resident of Mysore in the very charge sheet and further, he was working as a recovery agent of a private bank and that he was on duty and was working on the date of the incident and therefore could not possibly have been involved in the incident. In this regard, evidence having been tendered, the court below had trashed the same and has proceeded to hold that if the alibi set up by the accused could not be established, it would then have to be taken that his presence at the time of the incident was to be held established and consequently held that notwithstanding the claim that the accused was a resident of Mysore and that he was working on the date of the incident, having regard to the distance, from the village to Mysore city, which is only 50 kilometres, it was quite possible for the appellant to have been present both at Mysore and in the village at the time of the incident. In that, he could have easily travelled from Mysore to the village, to have committed the offence. Secondly, insofar as the claim that he was working on the said date of the incident and could not have been involved in the alleged commission of the offence, it is pointed out that the incident had occurred at 8.30 p.m., when the petitioner was off duty. Therefore, it was held that the possibility of the incident having occurred could not be ruled out. It is on this basis that the defence set up has been negated by the court below. However, the learned Counsel for the appellant would submit that leaving aside the alibi and the defence set up by the accused, the burden was on the prosecution to establish its case beyond all reasonable doubt. In this regard, the learned counsel would point out that the allegation of the appellant having accosted the complainant and having abused him and having assaulted him, is sought to be established, by relying upon the evidence of the PW.1, the complainant himself, apart from the testimony of PW.2, PW.3, and PW.7. Insofar as the self serving evidence of PW.1 is concerned, it is contended that unless the same is corroborated by independent evidence, the same cannot be readily accepted for more than one reason. It is claimed that not only was the complainant abused, he was also assaulted and he had suffered injuries, which was duly certified by a Medical Practitioner. Insofar as the injuries are concerned, the opinion of the Medical Practitioner was that there were no external injuries. It was only pain that the complainant had complained of and which was recorded in the wound certificate. There is no indication of any injury having been caused by virtue of any alleged assault. Therefore, the claim that he was abused had to be established atleast with reference to the evidence of other witnesses. Insofar as the evidence of PW.2 is concerned, PW.2 has categorically stated that he did not hear the words actually employed by the accused in having abused the complainant. Therefore, the evidence of PW.2 does not corroborate the evidence of PW.1 insofar as any particular words or language having been used, with reference to the caste of the complainant in a derogatory fashion. Insofar as PW.3 is concerned, the said witness, admittedly, was the nephew of PW.1, the complainant, namely, and therefore, his evidence could not be readily accepted. Insofar as PW.7 is concerned, he is again a witness, who has admitted that there were, in fact, differences between the family of the said witness and that of the accused, since his wife and the wife of the accused had contested at an election and the wife of the accused had succeeded at the election. Therefore, it is contended that there was a strong possibility of a false case being foisted on the basis of the evidence of those witnesses. On the other hand, when the allegation of the prosecution is to the effect that the incident had occurred in a public place and in public view, it was expected that the independent witnesses from the general public, who may have witnessed the incident, ought to have been examined as witnesses. In the absence of any such independent evidence to establish that the complainant was abused with reference to his caste in a derogatory fashion and that he was assaulted causing injuries and the same not having been established with reference to any cogent evidence, the case of the prosecution would have to fall to the ground and therefore, the findings of the court below are without basis and that the same requires to be set aside and the accused be acquitted. More significantly, the learned Counsel for the appellant would point out that there is an undue delay of two days in filing the complaint. Admittedly, the Police Station was 9 kilometres from the village and the place of the incident. Even if there were alleged conciliatory talks with the village elders and the complainant, the same ought not to have delayed the initiation of proceedings by over two days and coupled with the fact that there is a possibility of a false case being foisted against the accused, the inordinate delay would not compound the falsity of the case and therefore, would submit that the findings of the court below are without any basis. And that on the other hand, the unexplained circumstances of the case would vitiate the entire proceedings and seeks that the conviction be set aside and the accused be acquitted.