State appealed acquittal under SC/ST POA Act and IPC sections alleging caste-based insult and assault. High Court found prosecution evidence compromised by hostile witnesses and dismissed appeal, upholding acquittal.
Appeal dismissed and application for condonation of delay rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER, 2016
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.982 OF 2016
BETWEEN:
State of Karnataka, Assistant Commissioner of Police, Mangaluru North Sub-Division, Panambur, Mangaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru – 560 001. …APPELLANT (By Shri S. Vishwa Murthy, Government Pleader)
AND:
Uday Kumar Kaje, Aged 32 years, Son of Madhava Kotian, Resident of Durga Kripa House, Kolambe Post, Mangaluru Taluk – 575 001.
RESPONDENT
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This Criminal Appeal filed under Section 378(1) and (3) of the code of Criminal Procedure, 1973, by the State Public Prosecutor for the State praying to grant leave to appeal against the judgment and order of acquittal dated 29.12.2015 passed by the II Additional District and Sessions (Special) Judge, Dakshina Kannada, Mangaluru in Spl.C.No.3/2013 – acquitting the respondent/accused for the offence punishable under Sections 323, 504 and 506 of IPC and Section 3(1)(x) of SC/ST (POA) Act, 1989.
This appeal coming on for Orders this day, the Court delivered the following:
JUDGMENT
Heard the learned State Public Prosecutor appearing for
the State. The State is in appeal challenging the acquittal of the respondent.
he was inspecting a land which he had recently purchased at Thenka Ekkar village, Permude Bunglow along with his partner Kiran Kumar and one Sunil Manoj Fernandes. The accused
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Uday Kumar who is also said to be a purchaser of adjacent land, had come over to the complainant and had spoken to him in a language derogatory of his caste and that the complainant belonged to a Scheduled Caste. Thereafter, the accused is said to have caught hold of the complainant’s shirt collar and
slapped him around. PW-2 and PW-3 had intervened and had prevented any further harm being caused. While going away, the accused had threatened the complainant further in Tulu language as under:
Thereafter, it transpires that the complainant has lodged a
complaint as regards the above incident which was registered as a criminal case and an FIR was registered and investigation was
launched and further steps were taken.
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Statements of the witnesses were recorded and chargesheet was filed against the accused. Summons having been issued against the accused, he had appeared and contested the case. The prosecution alleged offences punishable under Sections 323, 504 and 506 of the Indian Penal Code, 1860 and under Section 3(i)(x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty and claimed to be tried. Thereafter, the prosecution examined 10 witnesses and marked several documents. On the basis of the evidence, the court below had framed the following points for consideration:
“1. Whether the prosecution proves beyond all reasonable doubt that 20.11.2012 at about 4.00 p.m. at a place called Bungalow Gudde, Tenka Ekkar village of Mangaluru Taluk, while the P.W.1 was talking with P.W.2 and P.W.3, the accused abused the complainant/P.W.1 in filthy language and intentionally insulted him with intent to provoke breach of the public peace and
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thereby committed an offence punishable under Section 504 of IPC?
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intent to humiliate a member of a scheduled caste and thereby committed the offences punishable under Section 3(1)(x) of SC/ST (PA), 1989?
5. What Order?”
The court below answered all the points in the negative.
It is the reasoning of the court below on the analysis of
the evidence, that Sunil Manoj Fernandes and Kiran Kumar Atholige who were said to be present at the time of the incident were examined as PW-2 and PW-3. PW-4 and PW-5 were said to be eye-witnesses of the incident. PW-6 was the land developer under whom the accused was working as an assistant. PW-7 was the Head Constable who received the complaint. PW-8 was Ronald Fernandes and PW-9 was Maxim Fernandes
and they were witnesses to the spot mahazar. PW-10 was the Assistant Commissioner of Police, who was the Investigating Officer.
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It is found on examination of the evidence of these witnesses that apart from PW-1 who has narrated the incident, PW-2 has in his cross-examination pleaded ignorance about the complainant having removed the fencing wire which had been put up by PW-6, the neighbouring owner. But, he admitted that there was a complaint by the accused against the complainant for having removed the fence. PW-3 however, had turned hostile to the prosecution case and he had denied the suggestion made by the prosecution regarding its version of the case. PW-
4 and PW-5 who were said to be present at the time of the incident have also turned hostile. PW-6 who is the adjacent owner also is treated as a hostile witness. The mahazar witness in turn have also turned hostile. It is in this circumstance that the court below has held that apart from the self-serving evidence of PW-1 and formal evidence of PW-10, the Investigating Officer, there is no case made out against the accused, and thereby has acquitted him.
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Though the learned State Public Prosecutor would make a weak attempt to contend that there is indeed substance in the complaint and that there is a semblance of evidence which would support the case of the prosecution, there is no fault to be found with the judgment. This would not be sufficient to hold that the prosecution had established its case beyond all reasonable doubt.
Accordingly, the application I.A.1/2016 seeking condonation of delay in filing the appeal would not merit consideration and the same is rejected.
The appeal is also dismissed.
Sd/- JUDGE
KS
2 issues framed by the court
Whether the prosecution proved beyond reason able doubt that the accused committed offences under Sections 323, 504, 506 of IPC and Section 3(1)(x) of SC/ST POA Act.
Whether the acquittal of the respondent by the trial court is sustainable in view of the hostile testimonies of key witnesses.
3 provisions across 3 enactments
State of Karnataka
Uday Kumar Kaje
ANAND BYRAREDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
