S. L. Lokesh Bhovi Vs State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 20.08.2018, PASSED BY LXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE, BANALORE CITY (CCH-71) IN SPL.C.C.NO.163/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 448, 427, 506 R/W 34 OF IPC AND SECTIONS 3(1)(iv)(v)(x) IF SC/ST (POA) ACT.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the

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learned counsel for the appellant and the learned Addl. SPP for the respondent No.1 and the learned counsel for the respondent No.2 on merits. The records also secured.

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The factual matrix of case of prosecution before

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the Trial Court that P.W.1 lodged the complaint stating that P.W.1, P.W.3 to P.W.5 and others have running their

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office of Dr.B.R.Ambedkar Seva Samithi in the shed belongs to C.W.2 in Sy.No.35/2 situated at B.G.Road,

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Kalena Agrahara. They installed the board and had furnitures in the said shed. That on 16.02.2011 at about 2.00 p.m accused No.1 along with other accused persons with common intention trespassed into the office of Dr.B.R.Ambedkar Seva Samithi and dragged C.W.1 to C.W.5 out of shed and destructed the furnitures, windows, door and caused loss to the tune of Rs.65,000/- and also demolished the wall of the shed. It is also the case of the prosecution that the accused intimated C.W.1 to C.W.5 by taking their caste name and humiliated and insulted them. Based on the First Information statement dated 05.03.2011 lodged complaint to Inspector General of Police, C.R.E cell which referred to the Hulimavu Police on 08.04.2011 the P.S.I of Hulimavu Police Station registered the case in Crime No.118/2011. The Police have investigated the matter and after completion of investigation, filed the charge sheet only against the accused No.1 for the offences punishable under Sections 448, 427, 506 r/w 34 of IPC and under Section 3(1)(iv)(v)(x) of S.C & S.T (POA) Act. The accused No.1

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was secured before the Trial Court and they have not pleaded guilty and hence claims the trial. The prosecution in order to prove the case, relied upon the evidence of P.W.1 to P.W.6 and also got marked Ex.P.1, Ex.P.1(a) and Ex.P2, Ex.P(2)(a) and accused was subjected to 313 statement and thereafter defense has not led any evidence. The Trial Court having considered the material comes to the conclusion that prosecution has not proved the case of trespass, causing of any damage as well as life threat and only coming to the conclusion that the oral evidence of P.W.1 to P.W.3 regarding alleged abusing language used to abuse in the name of caste is not corroborating with each other. Apart from that P.W.1 to P.W.3 are brothers and interested witnesses. The Trial Court also comes to the conclusion that inspite of sufficient opportunity is given to the prosecution, not examined C.W.2 and C.W.8 to C.W.14 and C.W.2 is a material witness, since the case of prosecution that the C.W.2 constructed the shed and so also the official witnesses of investigating officer Tahasildar, PSI, ASI and Deputy

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Superintendent of Police have not been examined who have been cited as C.W.10 to C.W.14 and the same is also fatal to the case of prosecution. The uncorroborated oral version of P.W.1 to P.W.4 creates doubt about the version and hence, admitted the accused person and hence, present appeal is filed before this Court.

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The counsel appearing for the appellant would vehemently contend that the complaint was immediately lodged and Police did not refer the complaint and referred the complainant to C.R.E cell and the C.R.E having received the complaint, conducted a enquiry and having found the material referred the matter to the judicial Police and C.W.10 registered the case and there was no any delay, but the Trial Court committed an error in coming to the conclusion that there was a delay in lodging the compliant. The counsel also would vehemently contend that the Trial Court passed the order of not examining the witnesses even though C.W.2 was present in two occasion and in one occasion and in one occasion, the learned Public Prosecutor sought time on the ground that both

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C.W.1 and C.W.2 are suffering from viral fever and hence the C.W.1 and C.W.2 were bound over and later on also C.W.1 was examined and when C.W.2 was present before the Court he was not examined and again bound over and thereafter non-bailable warrant was issued and same was also executed and ultimately dropped the C.W.2 and he is a material witness and Trial Court committed an error in coming to the conclusion that P.W.2 was not examined before the Trial Court. The counsel also would vehemently contend that when the mahazar was conducted in terms of Ex.P2 and mahazar witnesses also not examined and only allowed the prosecution to lead evidence of P.W.1 to P.W.6 and not given any opportunity and even Investigating Officer was also not examined. The habitual witnesses were also not examined including Tahasildar and the Police who have conducted the investigation and erroneously acquitted the accused.

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Per Contra, the counsel appearing for the respondent would vehemently contend that even though evidence was commenced long back in 2014 itself and also

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though C.W.2 bound over and records clearly disclosed that the case was pending before the Court at the instance of C.W.2 and also the accused persons and also when C.W.2 is interested person and he had constructed the shed and his shed was demolished and he would have voluntarily appeared before the Court instead of warrant was issued on several occasions, he did not appear before the Court. The Trial Court made an observation that inspite of opportunity is given, prosecution have not led any evidence before the Trial Court even warrant was issued against C.W.4 and C.W.6 when they have not been

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cross examined and taken as nil and subsequently crossexamination was also made and even from 2014 to 2018 they did not come forward to give evidence and ultimately the Trial Court the prayer of the learned Public Prosecutor was rejected since even warrant was also not executed and P.W.2 and P.W.3 were cross examined on 06.06.2018 and thereafter considering the evidence of P.W.1 to P.W.6, comes to the conclusion that there is no any corroborative piece of evidence and P.W.1 to P.W.3 are the brothers who

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are interested witnesses and regarding causing of mischief

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also no evidence was placed and hence, the Trial Court rightly appreciated the evidence and not committed any error. It is also the case of the prosecution that accused Nos.1 and accused Nos.7 to 8 were also committed the trespass and also the mischief, but the Police have investigated the matter and filed charge sheet only against the accused No.1 and not filed against the other accused persons and the same is fatal to the case of prosecution.

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Having heard the appellant’s counsel and also the learned counsel for the respondents and also having perused the evidence available on record, the point that would arise for consideration of this Court are:

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1. Whether the Trial Court committed an error in acquitting the accused persons and whether this Court can exercise the appellate jurisdiction?

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1. What Order?

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Having heard the appellant’s counsel and also

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counsel appearing for the respondents, the main case of

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the prosecution is also that at particular date of incident, this accused along with other accused persons trespassed to the land of the C.W.2 and caused the damage to the shed which was constructed and hence, invoked the offences under Section 448, 427, 506 of I.P.C and section 3(1)(iv)(v)(x) of SC/ST (POA) Act. Having perused the document of complaint Ex.P.1, no doubt an allegation is also made that they uttered the word by taking their caste name and hence, offences under the special enactment was also invoked. Now, the Court has to take note of the evidence available on record, P.W.1 to P.W.3 who have been examined before the Court re-iterated with regard to the incident is concerned that on 14.01.2011 at about 2.00 p.m when the C.W. 2 to C.W.5 were there in the office, 8-9 persons came in a car and suddenly trespassed and caused the damage to the table, chair and also to the door and also removed the window. In the crossexamination of P.W.1, he admits that the accused belongs to the Goudar community and he has not produced any document and also he is not aware of Sy.No.33-A,

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Sy.No.33-B and Sy.No.33-C and also denies the

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suggestion that the same belongs to the accused persons and the same was denied. However, suggestion was made that there was a case in O.S.No.34/2005 filed by Ramachandra against the accused persons but he says he does not know about the same and also suggestion was made that there was an interim order and also the suit filed against the accused was dismissed on 31.03.2005 and he denies the same. In the cross-examination he admits that when he was assaulted, only the members of Sanga were present.

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The other witness P.W.2 who is the brother of P.W.1, he re-iterates the same and in the crossexamination he admits that there is a civil suit between the C.W.2 and also accused persons in respect of Sy.No.35/2 and though P.W.1 denies the same, but P.W.2 admits that there was a civil dispute between the C.W.2 and the accused persons. He also admits that he has not produced any document to show that the shed belongs to the Ambedkar Seva Samithi and also suggestion was

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made that some of the cases in O.S.No.1212/2002, O.S.No.1212/2014 and 1212/2013 are also filed against the accused persons and also obtained an interim injunction and witness is not having information regarding the said injunction order.

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The other witness P.W.3 who is also brother of the P.W.1 and P.W.2 and in his evidence, he re-iterates the same about trespassing of the property and causing damage and also abusing taking their caste name, but in the cross-examination admits that he came to know about the accused persons from the date of incident and he says that C.W.2 is the Secretary of the said Sanga and he also denies about the case filed against C.W.2, however, he admits that M.A.No.100/2005 in respect of Sy.No.35/2, Sy.No.35/1 and Sy.No.35/2 and he denies the dismissal of application filed in M.A.

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The other witness is P.W.4 who claims that in Sy.No.32/2 there was a shed and the same was taken on 16.01.2008 from Ramachandra and also started Sanga in the said shed and he also re-iterates with regard to the

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incident is concerned. However, in the cross-examination he categorically admits that he know the C.W.2 since 5 years and he was supplying size stones to the C.W.2 and he do not have any document to show that he is the member of Ambedkar Seva Sanga and also he know the case number filed in respect of Sy.No.35/2, Sy.No.33/1 which is going on for last 8 years.

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The other witness P.W.5, he claims that he gave the electric connection in respect of the shed which is constructed by C.W.2, but in the cross-examination, he admits that he belongs to the caste of complainant and also suggestion was made that if any illegal construction was made, no such electric power will be supplied, but the same was denied.

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The other witness is P.W.6 who is the contractor and he says that on the request of C.W.2, he constructed the shed spending Rs.55,000/- and he also says that he witnessed the incident. In the crossexamination he says that he knows the accused from the date of the incident and he has not seen the incident and

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the C.W.2 told about the same. He know the P.W.1 to P.W.4 and C.W.2 from 2004 and also know them through contract work. He also admits that he has not seen any permission obtained by the C.W.2 from corporation or concerned authority with respect to construction of shed and he also further admits that contractors don’t construct without approval plan and they construct only as per the approved plan. Having taken note of the evidence available on record, P.W.1 to P.W.3 are the brothers and other witnesses though claims that they witnessed the incident and it is very clear from the evidence of P.W.1 to P.W.3 that though they denied about the fact that there was a civil dispute between the C.W.2 and also the accused, but P.W.2 categorically admitted that there is a civil dispute with respect of Sy.No.35/2 and even P.W.1 and P.W.3 denies the same.

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It is important to note that P.W.4 is the witness who claims that he also witnessed the incident, but in the cross-examination he admits that he was supplying the size stones to the witness C.W.2 and C.W.2 is none other

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than the person who claims that he constructed the shed. The P.W.5 is electric contractor and he claims that he gave the electric connection, but the fact that P.W.6 categorically deposes that though he claims that he was present, but he came to know about the accused on the date of incident and he has not seen the incident. Hence, it is clear that though claims that he was present at the time of incident, but admission elicited from the mouth of P.W.6 is very clear that he had not seen the incident and he came to know about the incident through C.W.2, but in the case on hand, C.W.2 was not examined. No doubt counsel appearing for the appellant brought to notice of this Court C.W.2 was present twice. The learned Public Prosecutor at the first instance sought for time on the ground that he was suffering from viral fever and hence, he was not examined and in the second time, he was bound over.

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It is important to note that when the C.W.2 claims that he constructed the shed and the shed was demolished, according to the prosecution and according to the complainant C.W.1, he is interested witness, he ought

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to have been voluntarily appeared before the Court and there was no need to issue NBW to him, but even he was appeared before the Court and he was bound over and later on he did not appear before the Court and the same was observed by the Trial Court. Even from 2014 to 2018 either the C.W.2 and other witnesses C.W.8, C.W.10 to C.W.14 were not appeared before the Court and ultimately the Court after considering for a period of 4 years and witnesses did not appear before the Court and apart from that it is emerged during the course of evidence also that there was a civil dispute between the C.W.2 and also the

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accused which was pending and when such material discloses that C.W.2 was interested person who constructed shed and his building was demolished and he ought to have appeared before the Court, but he did not appear before the Court and the same was also observed by the Trial Court. Apart from that though allegation was made that the witnesses were assaulted in the incident, no document of taking of treatment with regard to the assault or wound certificate is placed before the Trial Court and

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rightly Trial Court comes to the conclusion that the evidence of witnesses who have been examined though limited witnesses of P.W.1 to P.W.6 have been examined and evidences of each witnesses not corroborates each other and the same has been observed in paragraph No.21 and 22. The Trial Court taken note of oral evidence of P.W.1 and P.W.3 regarding the delay in lodging the complaint is not forthcoming, but the counsel appearing for the appellant brought to notice of this Court that when the complaint was not received, matter was referred to C.R.E cell and the fact that the C.R.E cell referred the matter to the C.R.E cell is also not in dispute and hence, the reasoning given by the Trial Court that there was a delay cannot be accepted. However, the Court has to take note of material available on record, whether the evidence of P.W.1 to P.W.6 is consistent and I have already pointed out that there was no any corroboration with regard to the incident is concerned and also the other material witnesses were also not examined, particularly the C.W.2 who claims that he had constructed the building and the same was

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given to the Sanga and material witness C.W.2 did not appear before the Court from 2014 to 2018 and Trial Court also made an observation in paragraph No.22 that admittedly there is a dispute between C.W.2 and the accused in respect of the property bearing Sy.No.35/2, under such circumstances, non-examination of C.W.2 is also fatal to the case of prosecution. It is also observed that despite of sufficient opportunity was given to the prosecution, the prosecution has not examined the material witnesses including investigating officer, Tahasildar, A.S.I, Deputy Superintendent of Police and even non-examination of C.W.10 to C.W.14 is fatal to the case of prosecution and order sheet of the Trial Court also reveals that evidence was commenced in the year 2014 and till 2018 though even coercive steps was taken that is issuing NBW also, the witness was not secured, even interested witness C.W.2 who claims that when his property was damaged, he did not chose to appear before the Trial Court and give the evidence and now appellant’s counsel cannot contend that no opportunity was given to

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the prosecution to lead evidence and having considered the material on record and I have already pointed out that with regard to the incident is concerned, nothing is placed on record and mahazar which has been drawn also not been proved by examining even mahazar witnesses also. The very contention that opportunity was not given cannot be accepted, even when P.W.1 to P.W.3 were examined and they are having the knowledge about the pendency of case for a period of 4 years, there was no any progress of examination of material witnesses. Under these circumstances, even remanding the matter also, no purpose will be served when the C.W.2 himself has not taken any interest and not appeared voluntarily before the Court even on issuance of non-bailable warrant also, he did not chose to appear before the Trial Court and hence, no grounds are made out to set-aside the order of Trial Court and and there is no any merit.

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