This was a criminal appeal by the State against the acquittal of accused persons in a case arising from an alleged assault and subsequent eviction dispute. The High Court dismissed the appeal, confirming the trial court's decision to acquit due to lack of evidence and credible proof of caste-based intent.
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 DHARWAD BENCH
DATED THIS THE 27T H DAY OF JANUARY, 2021
PRESENT
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON’BLE MR. JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.100083/2017
BETWEEN:
STATE OF KARNATAKA THROUGH POLICE SUB-INSPECTOR, MUNDRAGI POLICE STATION,GADAG, REPRESENTED BY ADDITIONAL STATE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, BANGALORE.
….APPELLANT.
(BY SHRI V.M.BANAKAR, ADDL. SPP.)
AND:
….RESPONDENTS.
(BY SHI.HARSHAVARDHAN M PATIL, AMICUS CURIAE)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AGAINST THE JUDGMENT AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 27.09.2016 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE AT GADAG.
RESERVED FOR JUDGMENT ON :13.01.2021 JUDGMENT PRONOUNCED ON :27.01.2021
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT THIS DAY COMING ON FOR PRONOUNCEMENT OF JUDGMENT, SRI P.N.DESAI, J, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the Statecomplainant being aggrieved by the judgment of acquittal dated 27.09.2016 passed by the Prl. District and Sessions Judge, Gadag in Spl.SC/ST C.C.No.17/2011 for the offence punishable under sections 307, 504, 506 R/w. Sec. 34 of IPC and Sec. 3(1)(x) and 3(2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the ‘SC/ST Act, 1989’).
under:
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On 07/09/2011 at 4.00 p.m. PW.6-Sridhar Hosamani, PW.7-Manju, PW8-Shekharaj, PW.9Chandru, PW.10-Vasu and PW.4-Suresh went to a open space situated on Gadag-Mundaragi road at Annadaneshwar Nagar, Mundaragi city to clean the said site after evicting the hutments. They asked the accused to vacate the shed on the ground that same was sold to them. Accused No.1 picked up quarrel with PW.6-Sridhar Hosamani, scolded him in filthy language and threatened with dire consequences. When PW.6 was attending a mobile phone call, accused No.2 brought an axe from her hut and gave it to accused No.1. Then accused No.1 assaulted PW.6 on his right side neck with the axe, which resulted in grievous injuries to him. The other witnesses took PW.6 to hospital at Mundaragi.
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abusing him touching his caste with an intention to intimidate and humiliate him as a schedule caste within public view.
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under Sections 307, 504, 506 R/w. Sec. 34 of IPC and Sec. 3(1)(x) and 3(2) (v) of the SC/ST Act, 1989.
charge was framed against them for the offences punishable under Sections 307, 504, 506 R/w. Sec. 34 of IPC and Sec.3(1)(x) and 3(2) (v) of the SC/ST Act, 1989, accused pleaded not guilty and claimed to tried.
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Konaraddi, Tahasildar has stated about issuing ‘caste certificate’ of the accused and injured PW.6 as per EX.P.9, which indicates that PW.6 belongs to scheduled caste and accused are ‘Muslim’ by caste. Recovery of MO.4 axe at the instance of accused No.1 is supported by panch witnesses PWs.3 and 4. The learned Addl. SPP argued that though prosecution has proved its charge, but the trial Court has erred in acquitting the accused. He urged to set aside the judgment of acquittal and convict the accused.
learned amicus curie argued that the witnesses PWs.6, 7, 8 to 11 all are interested witnesses. There is inconsistency in the medical evidence to the oral evidence. There are material discrepancies in the evidence of alleged eye witnesses regarding existence of the huts in the said place. The serological report does not corroborate prosecution recovery of MO.4 axe.
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the intimidation was such that on account of such threat and the consequent to assault, PW.6 had sustained such injuries thereby attracting the offences under Sections 504 and 506 of IPC alleged against the accused.
observed that some of the witnesses while giving evidence in the Court had made notes in their palm has drawn an inference that they were not knowing the incident. That itself indicates that witnesses are highly interested and intend to implicate the accused. Learned Sessions Judge disbelieved the seizure of M.O.4 axe at the instance of the accused No.1, further observed that medical evidence regarding the nature of treatment given to PW.6 is not forthcoming and number of other injuries create doubt about assault by MO.4 axe. Disbelieving the evidence of prosecution the learned Sessions Judge acquitted the accused by giving benefit of doubt.
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admits in the cross examination that his father had permitted 4 to 5 persons to reside in the property by putting sheds and no steps have been taken to evict them in accordance with law. Therefore the evidence of prosecution witnesses in this regard shows that they are suppressing the truth before the Court and it create doubt about their presence at the time of incident.
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Rs.10,00,000/- as advance. The sale deed is to be executed within six months by paying remaining balance amount and the said agreement is styled as ‘agreement with possession’. It bears no date. The said agreement is unregistered one.
has set the law in motion by lodging complaint as per Ex.P.5. He has not seen the incident. He is only a hearsay witness. Based on his written complaint, FIR came to be registered. It is in the
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evidence that PW.5 was partner of PW.1 in business and his father was a MLA at that time. The complainant and witnesses are all highly interested persons. The accused and other witnesses have given representation to Municipal authorities for regularization of their occupation. In this background we have considered the prosecution case regarding assault on PW.6 by accused No.1. It is the case of prosecution that when PW.6 was attending a mobile phone call, accused No.1 came from back side and assaulted him with axe on the right side of his neck. Then PW.6 sustained injury and collapsed. This is stated by PWs.6, 7, 8 and PW.11. Other witness PW.9Chandru’s evidence indicates that the assault was on back side of the neck. PW.10-Vasu states that the assault was on the front side of the neck. So there is inconsistency as to the manner of assault. According to these witnesses accused No.1 gave only one blow with axe. But medical evidence
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indicates several other injuries on other parts of body.
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posterior aspect of neck active bleeding present measures 10x5 cms.
(CSI) Hospital shows grievous injurey
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other parts of the body. But as per prosecution evidence there was only assault by axe on right side of the neck. Then how all these injuries were caused is not forthcoming. The Doctor was not shown MO.4 axe to prove that all injuries mentioned in EX.P.7 could be caused by one blow by MO.4. Further as per seizure panchanama EX.P.3 the said axe handle measures 48 inches in length and 4 inches in radius with handle made up of wood. The front portion was only 3.5 inches width. Therefore, if a person was assaulted with such weapon how all the injuries mentioned in EX.P.7 could be caused is not forthcoming. The serological report Ex.P.12 indicates that though the blood stained grouping of item Nos.2,3 and 4 ie. One T-shirt, pant and one Kaivastra are of ‘A’ group, but blood grouping on item No.1 Kodli (axe) could not be determined. This also creates a doubt as to whether MO.4 is used for assault by accused No.1. The medical evidence and serological report are not in corroboration with the oral evidence. On
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the other hand it is inconsistent with the theory of assault thereby makes the prosecution case doubtful.
stained axe-MO.4 was seized as per voluntary statement of accused No.1 in the presence of panchas PW.4-Suresh and PW.5-Srinivas Doddamani.
chief itself that Dy.S.P took him to see the axe. So this witness was already knew that axe will be produced. He has further stated that police took the axe to their custody. In the examination chief itself he has stated that seizure panchanama was written in the police station. He has further stated that MOs. 1 to 3 were also in the police station. In the cross examination he has admitted that he being a mason, used to visit PW.1-Basavaraj and Ramkrishna. He was called over a phone by police when he was in a market to attend a panchanama.
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PWs.1,2,6,10 and 12 give totally different and inconsistent evidence to that of Investigating Officer about actual persons residing in the said site by putting their sheds. This indicates, somehow PWs.1,6 and other witnesses intend to implicate the accused with some allegation which failed to prove beyond reasonable doubt. Though the incident had taken place according to prosecution on 07.09.2011, but blood stained cloths were seized on 17.09.2011. This creates doubt about investigation done by the Investigating Officer in this case.
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evidence makes the theory of assault doubtful. Seizure of MO.4-axe is not proved. Admittedly, according to prosecution witnesses, a number of other persons were present at the time of alleged incident. But none of them was either cited as witness or examined as witnesses before Court. Admittedly PW.1-complainant PW.6-Sridhar Hosamani, PW.8-Shekhar Hosamani, PW.9-Chandru all belongs to same caste. PW.10 admitted that he is close friend of PW.6 and stated that at the time of incident persons residing in other sheds were present. Their evidence indicates that they are highly interested. One of the owners of site PW.13-Iranna Alavandi has turned hostile to prosecution. Therefore, it is not safe to rely on their evidence without corroboration by other independent evidence. The presence of alleged eye witness examined before the court at the time of the incident is doubtful. If at all these witnesses were present they could have tried to stop the accused. Therefore, the presence of these
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interested eye witnesses itself becomes doubtful at the time of alleged incident. No call details of PW.6 mobile phone was produced to show that PW.6 was in a phone call at the time of assault. Prosecution has failed to prove theory of assault or ingredients of mens rea for assault. The prosecution evidence regarding assault by accused No.1 with MO.4 axe and alleged injuries sustained, suffers from material contradictions and inconsistencies, thereby makes theory of assault doubtful.
1989 is to prevent commission of offences of atrocities against the members of schedule castes and schedule tribes, to provide for trial of such offences by exclusive special Courts and for relief and rehabilitation of victims of such offences and for matters connected therewith. They are subjected to various offences, indignities, humiliations and harassment. But evidence in this case reveals that it is PWs.6 to 11 without having
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any right tried to evict the persons residing in huts, illegally from the scene of offence place. Therefore, it is evident that there was no intention on the part of the accused either to intentionally insult or humiliate PW.6 within public view by caste. The ingredients of mens rea is totally absent.
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other witnesses by their caste. There is nothing to show that accused knew the caste of PW.6.
by Byandur Police, Kundapura Sub-Division, Udupi reported in 2021(1) Kar.L.J. 110 wherein a similar view has been taken.
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the view favorable to the accused will have to be accepted. In view of all these discussions, it is evident that the possibilities of falsely implicating the accused just to evict from the said site also cannot be ruled out.
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learned Amicus curiae-Sri.Harshavaradhan M Patil. Therefore, his fee is fixed at Rs.10,000/- and the same shall be paid by the registry to the Amicus curiae in accordance with law.
Sd/JUDGE
Sd/JUDGE
Vb/-
3 issues framed by the court
Whether the appreciation of evidence by the trial Court which acquitted the accused is liable to be interfered with on appeal by the State?
Whether the ingredients of the offences under Sections 307, 504, 506 IPC and the SC/ST Act, 1989 were proved beyond reasonable doubt?
Whether the prosecution has established the mens rea for insulting or humiliating a member of the Scheduled Caste by caste?
Colour shows how this judgement treated each authority
Ravikumakr and others V/s. State of Karnatka by Byandur Police, Kundapura Sub-Division, UdupiReferred¶103
Ravikumakr and others V/s. State of Karnatka by Byandur Police, Kundapura Sub-Division, Udupi reported in 2021(1) Kar.L.J. 110
3 provisions across 3 enactments
STATE OF KARNATAKA THROUGH POLICE SUB-INSPECTOR, MUNDRAGI POLICE STATION,GADAG
DAVALSAB KASHIMSAB DAMBAL
IMAMBI W/O. KASHIMSAB DAMBAL
SREENIVAS HARISH KUMAR
P.N.DESAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
