(Prayer: This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the Judgment and Order of Acquittal Dated 08.02.2011 passed by the II Additional Sessional Judge at Gulbarga in Special Case No.240/2010, thereby acquitting the respondents-accused for the offence punishable under Sections 143, 148, 504, 324, 336 read with Section 149 of IPC and also Section 3(1) (x) of SC/ST (PA) Act, 1989.
This appeal having been heard, reserved for judgment and coming on for pronouncement of judgment this day, the Court delivered the following:-
1. This appeal is preferred by the State by assailing the judgment dated 08.02.2011 passed by the II Addl. Additional Sessions Judge, Gulbarga in S.C.No.240/2010 for having acquitted the accused No.1 to 21 for the offence punishable under Sections 143, 148, 504, 336, 506 read with Section 149 of Indian Penal Code and also under Section 3(1)(x) of SC/ST (PA) Act, 1989.
2. The case of the prosecution in brief is that;
On 14.2.2010 in Kaleshwar Temple there was a Jathra Festival, all the community people use to assemble to the said festival. In the festival there use to be a wrestling competition. At about 5.00 p.m. in the said wrestling competition, wrestler belonging to the village of complainant fell down at that time complainant and his villagers by name Ranjeeth and Jaganath went to push him up, at that time the accused persons abused the complainant and his men by taking the name of caste when complainant asked what has happened, if they come to the help of the fallen wrestler, at that time accused No.1 took a stone and assaulted below the left side of eye and caused bleeding injuries. So also accused No.8 Sachin assaulted to Jagannath Kamble with stone on the left side of jaw. So also, accused No.2 assaulted Ranjeeta Kamble with stick on his right knee, at that time other accused persons threatened the complainant and his men with life. Therefore they started pelting the stones towards the complainant and his men and as a result of the same the persons gathered sustained the bleeding injuries, by coming to know the said galata the persons gathered came and pacified the quarrel. Thereafter, they came to know that, the complainant and his men lodged a police complaint against the accused persons in respect of pasting dung over the photos of Dr. Ambedkar, Budha and Basava, for which the accused persons developed the enemity and to take revenge they have taken action on that day. As such the complaint came to be filed. On the basis of the complaint, a case was registered in Cr.NO.41/2010 of Aland Police Station. Thereafter, police investigated the crime and filed the charge-sheet.
3. After filing of the charge-sheet, the committal Court on following the procedure laid down under Sec. 207 of Cr.P.C. committed the case to the Sessions Court. The Session Court after taking the cognizance secured the presence of accused after hearing, the charge came to be framed. Since accused persons denied the charges and claim to be tried, the trial was fixed.
4. In order to prove the case, the prosecution in all has examined P.Ws.1 to 13 and got marked Ex.P-1 to 16 and material objects at MOs NO.1 to 4. During the course of cross-examination the accused got marked Ex.D-1. After closure of the prosecution evidence, the statement of the accused were recorded under Sec. 313 of Cr.P.C. by putting the incriminating materials against them, which they denied and they have not led anyevidenc eon their behalf.
5. Thereafter, on hearing the arguments of the learned Public Prosecutor and learned counsel appearing for the accused, the impugned judgment came to be passed. Assailing the said judgment and order the present appeal.
6. Heard the learned High Government Pleader appearing on behalf of the State and Smt. Hema K.L the learned counsel for the respondents/accused.
7. The learned High Government pleader vehemently argued and contended that the trial Court erred in appreciating the evidence of eye witnesses. They have categorically deposed before the trial Court that accused No.1,2 and 8 have abused by taking the name of caste and they have also assaulted with stone and sticks but this part of the evidence has not been properly considered and appreciated by the trial Court. He would also further contend that the Doctor who has examined the injured witnesses has also deposed by producing wound certificate as per ERx.P.7 to Ex.P.14. He would also further contend that, the trial court on the basis of surmises and mistaken notion has given the benefit of doubt to the accused persons even though there is sufficient evidence to connect the accused persons to the alleged incident. On these grounds, he prayed for allowing the appeal by setting aside the impugned order.
8. Per contra Smt. Hema K.L. learned counsel for respondents would contend that though the witnesses have supported the case of the prosecution but there is no consistency in the evidence they have deposed like parrot by concentrating only to accused No.1, 2 and 8 and they have not stated any overt act on the part of the other accused persons. She would also further contend that there is gross variations in the evidence led by the prosecution. She would also further contend that only because of the political rivalry the present complaint came to be filed by the complainant. She would also further contend that the evidence led by the prosecution is not trustworthy and reliable. As such, the trial Court considering over all evidence has rightly acquitted the accused/respondents by giving benefit of doubt. There are no good grounds to interefere with the order of the trial Court, Thereby she request to dismiss the appeal.
9. In order to prove the case of the prosecution, the prosecution got examined P.W.1 to 13. P.W.1 is the complainant who has sustained the injuries with the hands of accused No.1 he has deponed by reiterating the contents of complaint that the accused persons abused by taking the name of the caste and also told, not to come to the fair and at that time accused No.1 assaulted near his left eye with stone, accused No.8 assaulted on the jaw portion with stone, accused No.2 assaulted over the left knee with stick. Thereafter, the accused persons did not do anything. He has also further deposed that thereafter he went to house and thereafter went to police station and filed the complaint per Ex.P.1. During the course of cross-examination it has been elicited that about 4000 to 5000 people were gathered in the said fair and police were also deputed for the purpose of bandobusth. It has been also elicited that a criminal case has been registered against six accused persons for having pasted the dung to the photos of Dr. Ambedkar and others, PW2 is a spot mahazar pancha to Ex.P.2 whereunder M.Os. No.1 to 3 have been recovered. PW.3 to PW8, 11 and 12 are the eye witnesses to the alleged incident and also sustained injuries. They have also reiterated the evidence of PW1. During the course of cross-examination they have admitted that the said galata took place about half an hour and PW2 is the member of DSS and accused No.6 is the Chairmen of the Panchayath. It has been also elicited that no umpire was there in the said wrestling. Except this nothing has been elicited from the mouth of this witness. PW9 is also an eye witness to the alleged incident but he has not supported the case of prosecution and he has been treated as hostile. PW10 is the Doctor who examined the injured witness and issued would certificates as per Ex.P.7 to Ex.P.14. PW13 is the Dy.S.P. who took the further investigating and filed the charge-sheet against the accused persons.
10. Keeping in view the above said evidence, let us consider whether the prosecution has proved the guilt of the accused persons beyond all reasonable doubt. Further, whether the judgment of the trial Court is sustainable in law or not?
11. Though during the course of argument, the learned High Court Government Pleader would contend that the eye witnesses have categorically deposed that the accused No.1, 2 and 8 have assaulted by taking the name of the caste and have sustained injuries but the said version of the witnesses appears to be imaginary and concocted. All the witnesses have deposed like a parrot and as if they have been tutored by somebody. If really the incident has taken place as alleged in the charge-sheet, the charge-sheet discloses about 21 accused persons but the witnesses have deposed only against accused No.1,2 and 8. When was the role played by the remaining accused persons at the time of alleged incident is not forthcoming from the evidence led by the prosecution. Even a omnibus statement to the effect that accused person abused by taking the name of caste is a general allegation.
12. Be that as it may. When admittedly about 4000 to 5000 persons have gathered to see the wrestling and at the fair and if that movement, if any incident has taken place, then under such circumstances, it is highly improbable to identify each of the accused person and their role. Another surprising thing, which is noticed from the records, is that even though in the said fair the peoples of different villages have gathered but in the complaint only the accused persons who are residents of Tadola Village have been shown as accused. When admittedly, that there was pelting of stones about half an hour then under such circumstances it is very difficult to identify who actually pelted the stone who are all other persons sustained injuries etc. Though the prosecution got examined PW10 the Doctor and got produced Ex.P.7 to Ex.P.14, it is not going to substantiate the said fact because of the reasons that admittedly in the said fair there was pelting of stone by the people in that galata the witnesses might have sustained the injuries and might have taken the treatment and by taking the advantage of the same to take a revenge they might have filed the complaint. During the course of evidence, it has been brought on record that earlier also a complaint was filed against six accused persons for having pasted the dung to the photos and there was also political enmity between the two groups, that may be genesis for fling the false complaint.
13. Though the prosecution evidence discloses the fact that M.O.NO.1 to 3 have been recovered by drawing the mahazar Ex.P.2 from the place of incident. Admittedly Ex.P.2 the spot mahazar panchanama was drawn on 15.02.2010 next day after the incident. Admittedly, the alleged incident has taken place at the time of fair so many persons were gathered at that time and it is the specific contention of the complainant that by taking the name of the caste by threatening with life everybody was pelting the stone and the same were hitting to back and other parts of the body and they have also sustained contusions. Under such circumstances, how only three stones were identified and recovered is a misery, which is not properly answered and explained by the prosecution.
14. Live apart this admittedly in the said fairs the police bandobust was there. If the incident has taken place as alleged, then definitely the police personals who were present should have taken some lawful course to prevent the said galata, there is no whisper about the said aspect. Per contra the prosecution papers indicates that the police also started running from the said place which appears to be not natural and probable. Even the Investigating Officer has also not deposed when the police who were present have not taken any steps for preventing the said galata.
15. It is not well established principles of law that there is presumption that the accused is innocent until the contrary is proved. The evidence, which has been led by the prosecution, does not repose any confidence so as to come to the conclusion that the accused persons abused the complainant and his men by taking the name of the caste and have also assaulted them. The evidence led by the prosecution is not specific particular about the act of the each of the accused and the evidence led appears to be tutored and only with an intention to fix the accused person they have planed it and filed the complaint. It is also well established principle of law that the prosecution has to establish the case beyond all reasonable doubt, if any doubt arises in the case of the prosecution that benefit of doubt should go to the accused. In that light the trial court after considering all the evidence has rightly acquitted the accused. The impugned order is not perverse or malafide. The appellants have not made out any good grounds so as to interfere with the order of the trial Court, I am conscious of the fact that if two views are possible from the case of the prosecution one beneficial to the accused should be given. When the Court below by exercising its discretion has acquitted the accused, then under such circumstances the appellate Court must be very slow in interfering with such discretion until it is shown, that some illegality has been caused or if the said order is perverse.
Keeping in view the above said aspects, I pass the following
ORDER
Criminal Appeal is dismissed.