Allowed

Sri Krishnappa @ Kittappa v. State of Karnataka

Karnataka HC23 May 2023CRL.A/1484/2016

Case brief

AI extract

What is this about?

High Court allowed criminal appeal challenging conviction and sentence for assault and suicide incitement. Court held solitary eyewitness evidence was unreliable due to contradictions and lack of corroboration, acquitting appellants of IPC and SC/ST Act charges.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted of all charges; bail bonds cancelled; matter referred for compensation.

Sri Krishnappa @ Kittappa Vs State of Karnataka — Caste Atrocities | Karnataka HC (2023)

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1 - CRL.A No.1484/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MAY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CRIMINAL APPEAL No.1484/2016 (C)

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BETWEEN:

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SRI KRISHNAPPA @ KITTAPPA AGED ABOUT 58 YEARS S/O CHIKKANARAYANAPPA

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SMT. LAKSHMIDEVAMMA AGED ABOUT 48 YEARS W/O KRISHNAPPA

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SRI SHIVASHANKARA AGED ABOUT 33 YEARS S/O KRISHNAPPA

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ALL ARE HINDU KURUBA BY CASTE R/AT BEECHAGANAHALLI CROSS GUBIBANDE TALUK CHIKKABALLAPUR DISTRICT-562 101 …APPELLANTS

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Digitally signed by A K CHANDRIKA Location: High Court of Karnataka

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(BY SRI S.R.SREEPRASAD, ADVOCATE)

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AND:

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STATE OF KARNATAKA REP. BY DY.SP CHIKKABALLAPUR SUB DIVISION CHIKKABALLAPUR- 562 101 GUDIBANDE POLICE STATION REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU- 560 001

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SMT.ANJINAMMA W/O GOPALAPPA AGED ABOUT 40 YEARS

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CRL.A No.1484/2016

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FRUIT VENDOR KONACHA BY CASTE J.P.NAGAR, GUDIBANDE TALUK CHIKKABALLAPUR DISTRICT …RESPONDENTS

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(BY SMT.RASHMI JADHAV, HCGP FOR R1; SMT.PAULINE PRIYANKA B, ADVOCATE FOR R2)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 26.08.2016 PASSED BY I ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA IN SPL.S.C.NO.4/2010 - CONVICTING THE APPELLANT/ACCUSED NOS.1 TO 3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323 AND 324 READ WITH SECTION 34 OF IPC AND UNDER SECTION 3(2)(V) OF SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989.

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THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Challenging the order of conviction and sentence passed against them, accused Nos.1 to 3 in Spl. Sessions Case No.4/2010 on the file of I Additional District & Sessions Judge, Chikkaballapur have preferred the above appeal.

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The appellants were accused Nos.1 to 3 in Spl.S.C.No.4/2010 before the trial Court. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.

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Accused Nos.1 to 3 were prosecuted in Spl.S.C.No.04/2010 for the charges for the offences

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punishable under Sections 323, 324, 306 read with Section 34 of IPC and under Section 3(1)(x) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) on the basis of the charge sheet filed by Gudibande Police in Crime No.42/2010 of their Police Station. Crime No.42/2010 was registered against accused Nos.1 to 3 on the basis of the complaint Ex.P4 filed by PW.3 Anjinamma the mother of deceased Ramanji.

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The case of the prosecution in brief is as follows:

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i). Accused Nos.1 to 3 were running hotel in Beechaganahalli Cross of Gudibande Taluk. The deceased was also resident of the same village. On 08.04.2010 at 10 a.m. Ramanji had gone to the hotel of the accused. After having breakfast, when he was checking out from the hotel, accused No.1 started to quarrel with the deceased saying that he has committed theft of the mobile phone which was placed on the table of accused No.1. PWs.5 and 6 who were present there advised Ramanji to return the phone if he has taken the same and pacified the quarrel. By that time PW.3 came near the hotel and Ramanji was

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revealing the incident to her. Being enraged by that accused Nos.1 and 3 assaulted him with the club MO.3, accused No.2 kicked him by her leg. Despite PWs.1, 4 and 9 pacifying the quarrel, accused chased him and assaulted him by clubs. Being humiliated by that, the victim took out the petrol-can placed in front of the hotel of accused No.1, poured the petrol on himself and set himself ablaze.

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ii). Initially the deceased was shifted to

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Chikkaballapura hospital. From there he was shifted to Victoria hospital, Bengaluru. He succumbed to the injuries at 5.00 p.m. on the same day. Since deceased belonged to scheduled caste, the accused have committed the offence punishable under Section 3(1)(x) of the Act and Sections 323, 324, 306 read with Section 34 of IPC.

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The trial Court on hearing the parties, on 25.02.2014 framed the charges only for the offences punishable under Sections 323, 324, 306 read with Section 34 IPC and under Section 3(1)(x) of the Act. By another order dated 19.08.2016 i.e., after lapse of two years the trial Court framed additional charge for the offence punishable

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under Section 3(2)(v) of the Act. Since accused denied the charges and claimed to be tried, the trial was conducted.

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In support of the case of the prosecution, PWs.1

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to 21 were examined, Exs.P1 to 25 and MOs.1 to 3 were marked. After their examination under Section 313 Cr.PC, the accused neither filed the defence statement nor adduced defence evidence.

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The trial Court on hearing the parties by the impugned judgment and order convicted accused Nos.1 to 3 for the offences punishable under Sections 323, 324, 306 read with Section 34 of IPC and Section 3(1)(x) and 3(2)(v) of the Act. Further the trial Court imposed the sentence of imprisonment and fine for the aforesaid offences as per the

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table below:

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Sl. No.	Offences Punishable under Section	Imprisonment	Fine amount in Rs.	Default sentence
1	323 read with 34 of IPC	Simple imprisonment of one year	1,000/-	Simple imprisonment of two months
2	324 read with 34 of IPC	Rigorous imprisonment of two years	5,000/-	Simple imprisonment of six months
3	3(2)(v) of SC/ST (POA) Act,1989	Life imprisonment	50,000/-	Simple imprisonment of two years

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The trial Court based the conviction holding that PW.3 is the eyewitness, her evidence about overt acts of the accused was acceptable, that was corroborated by the medical evidence and the evidence of official witnesses. The accused challenge the said judgment in the above appeal.

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Submissions of Sri S.R.Sreeprasad, learned Counsel for appellants/accused Nos.1 to 3:

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Out of PWs.1 to 6, 9 and 20 who are cited as eyewitnesses, only PW.3 the complainant supported the prosecution version. Her evidence was full of material contradictions, improvements, omissions and commissions which go to the root of the matter. Under such circumstances her evidence required corroboration. The same was not corroborated by the evidence of other witnesses. The evidence on record shows that the deceased was suffering from Epilepsy and his wife was also suffering from some ailment. That probabalises the defence of the accused that the deceased being frustrated by the health and domestic problems committed suicide. There was no evidence to attract Section 306 of IPC. Similarly the presence of accused Nos.2 and 3 and PW.3 at the scene of offence was not probabalised. The evidence on record did not show that the

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alleged offences were committed for casteist reasons. The trial Court supplied the flaws in the prosecution case by several hypothesis which is incorrect. Therefore, the impugned judgment and order suffers illegality and liable to be set aside.

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In support of his submission, he relies on the following judgments:

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i. Dinesh @ Buddha Vs State of Rajasthan¹ ii. S.S.Chheena Vs Vijay Kumar Mahajan & Another² iii. Lallu Manjhi and another Vs State of Jharkhand³

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Submissions of Smt. Rashmi Jadhav, learned HCGP for respondent No.1 and Smt. Pauline Priyanka B, learned Counsel for respondent No.2/complainant:

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The evidence of PW.3 shows that even when the incident was going on, none of the villagers came to rescue the deceased. Thus the other eyewitnesses have not supported the case of the prosecution. Under such circumstances the other eyewitnesses turning hostile is of no consequence. PW.3 being the mother of the deceased, there was no reason for her to falsely implicate accused Nos.1 to 3

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1 AIR 2006 SC 1267

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2 (2010) 12 SCC 190

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3 AIR 2003 SC 854

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in the case. Her presence at the scene of offence was probabalised by her evidence and the fact that soon after the incident she filed the complaint. The accused also did not dispute the death of the victim being suicidal near the hotel of the accused. Therefore the accused had to explain why he committed suicide. The minor contradictions, improvements in the evidence of the witnesses are bound to occur due to time gap between the incident and their deposition before the Court. Unless the same goes to the root of the matter, that is not a ground to disbelieve the said eyewitness. Though PW.3 admitted that the deceased was suffering from Epilepsy, she further deposed that was cured. Chickenpox with which the wife of the deceased was suffering is a common disease. Therefore they could not have been the cause of suicide. As the accused assaulted the victim in the public view, he was humiliated and took the extreme step of committing suicide. Therefore, it was a clear case of incitement by the accused to the deceased to commit suicide. The victim being a person belonging to scheduled caste was not disputed. The offences were inflicted with a knowledge that he belonged to scheduled caste. The trial Court on sound appreciation of the

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evidence has convicted the accused which does not warrant interference of this Court.

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In support of their submissions, they rely on the

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following judgments:

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i. Manoj Kumar Roop Singh and others Vs State of Himachal Pradesh⁴

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ii. Appabhai and Another Vs State of Gujarat⁵ iii. Karanjit Singh Vs State of Jammu and Kashmir⁶ .

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iv. Ravasaheb Alias Ravasahebgouda v. State of Karnataka⁷

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On careful consideration of submissions of both

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side and the materials on record, the point that arises for determination of the Court is “whether the impugned judgment and order of conviction passed against the appellants/accused Nos.1 to 3 suffers illegality or impropriety”?

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Analysis

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The prosecution case is that the accused persons in the hotel of accused No.1 at Beechaganahalli humiliated the deceased Ramanji imputing theft of mobile phone of accused No.1, despite intervention of PW.3, they chased him

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4 2016 CRL.L.J.5015

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5 1988(Supp) SCC241

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6 2005 2 Crimes (HC) 148

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7 2023 SCC Online SC 274

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from the hotel and assaulted him. Being humiliated by that, he committed suicide. According to the prosecution, PWs.1 to 6, 9 and 20 were the eyewitnesses to the incident. To hold the accused guilty of the charges, the prosecution was required to establish the following facts:

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(i) The presence of the accused and the deceased at the scene of offence;

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(ii) The presence of PWs.1 to 6, 9 and 20 at the scene of offence;

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(iii) The accused humiliating the deceased imputing him the theft of mobile phone;

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(iv) Assault by accused Nos.1 & 3 on the deceased with club MO.3 and accused No.2 kicking the deceased with her legs;

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(v) The deceased committing suicide near the hotel of accused No.1 by pouring petrol on himself due to the overt act of the accused;

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The accused also did not dispute the relationship between PW.3 and the deceased and the fact that Ramanji committed suicide near hotel of accused No.1 in Beechaganahalli village by pouring petrol and setting himself

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ablaze. Their defence is that the deceased was suffering from epilepsy and his wife also had health issues, in that background he was being humiliated by family members and frustrated by such ailment and humiliation, he committed suicide. It is their further contention that as there was provision to grant compensation in case of homicidal death of a person belonging to the Scheduled Caste, PW.3 has falsely implicated the accused to get such compensation.

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Reg. Eyewitnesses:

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Though the prosecution claimed that PWs.1 to 6, 9 and 20 were the eyewitnesses, except PW.3 no other witnesses supported the prosecution version and hence the case of the prosecution was based on the solitary evidence of PW.3. Therefore the Court has to analyze whether her evidence about she witnessing the incident and overt acts of the accused is acceptable.

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The incident said to have taken place on 08.04.2010 at 10.00 a.m. The victim died on 08.04.2010 at 5.00 p.m. at Victoria Hospital, Bangalore. Before that he was shifted to Government Hospital, Chikkaballapur. The complaint Ex.P4 purportedly recorded on 08.04.2010 at

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11.30 p.m. in Victoria Hospital, Bangalore on receiving MLC intimation from the said hospital. The said MLC intimation is not produced in the evidence. The first information report Ex.P22 shows that the same was registered on 09.04.2010 at 2.30 a.m. The same was delivered to the Court on 09.04.2010 at 12.25 p.m.

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Though PW.3 claims that her husband also came to the scene of offence, after the incident and both of them shifted the injured to the hospital, in her chief examination she says that PWs.1, 2 and 20 put off the fire using gunny bags and shifted him to the hospital. As per the complaint and her deposition, she is the eyewitness to the incident of the accused imputing theft of mobile phone to the deceased and humiliating him. In the complaint, she says that Marappa who was examined as PW.5 asked the deceased that since he has taken the phone, he has to pay Rs.10,000/- to the accused. Though initially PW.5 was shown as accused No.4 in the first information report, while filing the charge sheet, he was dropped and shown as charge sheet witness No.7.

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PWs.5 and 20 did not support the allegations of the accused humiliating the deceased imputing commission

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of theft of mobile phone. Even according to complaint Ex.P4, PW.3 went there to buy groceries, while so going she came across her son and he narrated the incident, for that accused No.2 took exception and kicked him. When he fell down, accused Nos.1 and 3 assaulted him with clubs, then the deceased ran back towards hotel, took up petrol-can, doused himself with petrol and set himself ablaze. But in the chiefexamination she states that somebody came and informed her about the accused assaulting her son, therefore she rushed to the spot and then witnessed the assault by the accused and the deceased attempting to commit suicide.

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Even according to the accused, it was accused No.1 who was running the hotel. Why accused Nos.2 and 3 were also present there was not explained. According to the charge sheet itself, accused No.3 was working as auto driver. Then how and why he was at the scene of offence at 10.00 a.m. was not made clear. So far as the deceased going to accused No.1’s hotel for breakfast, PW.3 in her chiefexamination states that her son was doing coolie work. In Ex.P4 PW.3 has stated that the victim left the house at 10.00 a.m. to have breakfast in the hotel of accused No.1, whereas

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in her cross-examination, she states that on that day her son left the house at 7.30 a.m. and she does not know where he was between 7.30 a.m. to 9.00 a.m. In chief examination she states that her son left the house to have breakfast in the hotel of accused No.1. There are material inconsistencies in her evidence about she being present at the scene of offence at 10.00 a.m. If her evidence that she had gone to buy groceries, then she becomes chance witness. If her evidence that she rushed to the spot on somebody informing her about the accused assaulting her son is accepted, then she being the witness to the assault on the victim by the accused is unbelievable. Therefore her evidence with regard to her presence at the scene of offence before the victim attempting to commit suicide required corroboration.

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Learned Counsel for respondent No.2-

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complainant argued that nobody came to the rescue of the deceased except PW.3 and therefore reasons for other eyewitnesses turning hostile is obvious. The said contention has no merit as PW.3 herself in her deposition states that PWs.1, 2 and 20 put off the fire and shifted the injured to Chikkaballapur Government Hospital. If the accused

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assaulted the victim and humiliated him imputing theft of mobile phone to him, then PWs.1, 2 and 20 should have deposed regarding the same. The other witnesses PWs.4 to 6, 9 and 20 also did not support the case of prosecution with regard to the assault by the accused on the deceased and alleged humiliation in the guise of the deceased committing theft of mobile phone.

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So far as PWs.11 and 12 the father and brother of the deceased, the complaint as well as the evidence of PW.3 themselves show that they were not eyewitnesses. According to her PW.11 came to the scene of offence after the incident took place and PW.12 came to the hospital on learning about the incident.

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So far as assault by the accused, in the complaint Ex.P4, it is alleged that accused No.2 kicked the deceased and accused Nos.1 and 3 assaulted him with club MO.3, whereas PW.3 in her deposition states that all the accused were assaulting her son with clubs. As per the prosecution itself, the victim was first taken to Chikkaballapur Government Hospital, but the case records or MLC register extract from the said hospital were not collected and

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produced by the Investigating Officer with the charge sheet. What was the history given there was not placed before the Court which amounts to suppression of material fact.

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No doubt, PW.3 being mother will be concerned about her son. However, she in her cross-examination admits that her son was suffering from epilepsy and the wife of the deceased was also suffering from health issues. She also admits that the wife of the deceased also died after three months of the death of Ramanji. That probabilizes the defence of the accused that the deceased was depressed because of the health issues of himself and his wife. Though PW.3 claimed that the disease was cured, no material to that effect was placed before the Court in that regard or to show that epilepsy was a curable disease.

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According to the prosecution, the deceased was assaulted by the accused with clubs mercilessly and he had suffered injuries. But PW.8 in his evidence deposes that except the burns, no other external injuries were found on the dead body. Learned Counsel for respondent No.2complainant relies on Chapter 22 pages 903 and 916 of Medical Jurisprudence & Toxicology by Modi and submits that

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if there are severe burn injuries, in processing of the body the signs of death by throttling, suffocation or blows may completely be destroyed by fire. Neither that was the prosecution version nor in the evidence of PW.8 that was so clarified. Moreover the postmortem report Ex.P12 does not state that the other injuries could not be noticed because of processing the body and severe burns. Therefore the said argument at the Appellate Stage for the first time cannot be accepted.

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The defence of the accused is that, to claim compensation from the Government the accused are falsely implicated to project the cause of death as castiest atrocity. PW.3 in her cross-examination admits that she has received the compensation from the Government for the death of her son. Another thing to be noticed is that PW.3 in her deposition states that one Devamma informed her about the accused assaulting her son, then she rushed to the spot. Said Devamma was not cited as charge sheet witness. Such deposition of PW.3 further probabilises the defence of the accused that she was not eyewitness to the incident. In her deposition she further admits that she does not know what

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all took place before she coming to the spot and she does not know who informed her husband about the incident. In her cross-examination, she states that she could not notice the distance between the place where her son was aflame and the location of accused Nos.1 to 3 at that time.

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According to the prosecution, PW.3 had identified the petrol-can MO.1 during investigation. But in her crossexamination, she states that she is seeing the petrol-can for the first time in the Court. When in the complaint and in chief examination, she states that the deceased himself poured petrol and set himself aflame, in the cross-examination she says that accused No.2 was holding petrol can. Again she states that when she rushed to the spot, people were telling that accused No.1 killed the victim. Thus there were material contradictions in the complaint, in the evidence of PW.3 and other evidence on record and the presence of PW.3 at the scene of offence itself was doubtful. Under the circumstances, her evidence required corroboration. But other witnesses did not support the prosecution case and corroborate her evidence.

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So far as the offence under the Act, in para 16 of the judgment in Dinesh @ Buddha ’s case referred to supra, the Hon’ble Supreme Court held that to apply those provisions, there must be evidence to the effect that the offences against the persons belonging to the scheduled caste and scheduled tribe have been committed on the ground that he is the member of such caste or tribe. In the case on hand neither in the complaint Ex.P4 nor in the deposition of PW.3, it is alleged that the accused committed the offence against Ramanji with casteist intention. Since the alleged incident of accused humiliating the deceased and imputing commission of theft and assaulting itself is not proved, then the question of considering whether such acts amounts to incitement to the deceased to commit suicide does not survive for consideration.

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The judgment in S.S.Chheena’s case referred to supra relied on by learned Counsel for the appellant/accused has no application to the facts of this case. In para 10 of the judgment in Lallu Manjhi’s case referred to supra the Hon’ble Supreme Court held as follows:

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“10. The Law of Evidence does not require any particular number of witnesses to be examined

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in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable , (ii) wholly unreliable , and (iii) neither wholly reliable nor wholly unreliable . In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony , direct or circumstantial, before acting upon testimony of a single witness .”

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(Emphasis supplied)

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The above discussions go to show that PW.3 was neither wholly reliable nor wholly unreliable. Therefore in such case, the Court has to be circumspect and has to look for corroboration in the material particulars by reliable testimony of other witnesses. The said judgment supports the view of this Court that PW.3’s evidence required corroboration by independent witnesses.

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Even in Narendrasinh Keshubhai Zala’s case referred to supra relied on by learned Counsel for respondent No.2, the Hon’ble Supreme Court held that where single eyewitness is not found to be wholly reliable witness, then

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the Court generally insists upon some independent corroboration of other testimony. Since there were material inconsistencies and contradictions in the evidence of PW.3 throwing shadow of doubt on prosecution case, the aforesaid judgment in no way advances the case of the respondents.

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In the judgment in Appabhai’s case referred to supra relied on by learned Counsel for respondent No.2 it was held that when the incident took place in public place, non-examination of independent witnesses was fatal. In the present case also the incident took place in public place. But none of the independent witnesses supported the version of PW.3. Therefore the said judgment also in no way advances the case of respondent No.2. Suffice to say that the judgments relied on by learned Counsel for respondent No.2 are not applicable to the facts of the present case.

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The trial Court failed to note that such inherent contradictions and inconsistencies in the evidence of PW.3 made her sole testimony unreliable to convict the accused. Reading of the impugned judgment shows that the trial Court went on plugging loopholes on its own hypothesis. Therefore the impugned judgment and order of conviction and sentence

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is contrary to the evidence on record and the aforesaid judgments of the Hon’ble Supreme Court relied on by learned Counsel for the accused, therefore liable to be set aside. Hence the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and order of conviction and sentence is hereby set aside.

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The appellants/accused Nos.1 to 3 are acquitted of all the charges brought against them.

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The bail bonds of the accused shall stand cancelled.

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The impugned order with regard to disposal of the properties is hereby maintained.

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Acting under Section 357A of Cr.P.C., the matter is referred to District Legal Services Authority, Chikkaballapura for determination of compensation payable to PW.3. While determining the compensation, District Legal Services Authority shall take into account the compensation already received by PW.3.

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The Court places on record it’s appreciation for the able assistance rendered by Smt.Pauline Priyanka, learned Counsel, High Court Legal Services Committee for respondent No.2.

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Sd/JUDGE

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Sd/JUDGE

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PKN,KSR List No.: 1 Sl No.: 3

Sri Krishnappa @ Kittappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Krishnappa @ Kittappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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