Babu vs Tanveer and Others

A.V. Chandrashekara, J—The matter is at the stage of admission. Heard the learned counsel for Sri. Babu, the first informant and victim of a case in Crime No. 67/2012 of Ashok Nagar Police Station, Kalaburagi. On the basis of the first information lodged by the appellant, a case came to be registered against the respondents in Crime No. 67/2012 for the offences U/Sec. 143, 147, 149, 323 R/w 149 of IPC and Sec. 3(1)(10) of SC/ST Prevention of Atrocities Act 1989.

The respondents had faced the trial for the offences U/Sec. 143, 147, 149, 323 R/w 149 of IPC and Sec. 3(1)(10) of SC/ST Prevention of Atrocities Act 1989. Pursuant to charge framed against them on 03-11-2013, they had pleaded not guilty and claimed to be tried.

The gist of the charges leveled against them on 3-9-2013 is as follows:--

"All the accused had formed themselves into unlawful assembly on 6-8-2012 at 1-30 p.m., near Shop No. 20 at KHB Shopping Complex, in the vicinity of Gulbarga within the purview of Ashok Nagar Police Station and committed noting and abused CW-1, CW-4 and CW-5 i.e. Babu, Laxmikanth and Yogendra, committed criminal intimidation by holding on threats to their lives and abused them with reference to their caste in order to humiliate in public view knowing fully well that CWs-1, 4 and 5 are the members of Schedule Caste."

In order to bring home the guilt of the accused, prosecution has examined 9-witnesses and has got marked 9-exhibits. On behalf of the accused, no oral evidence is adduced but 3-documents have been got marked as exhibits. Ultimately all the respondents have been acquitted by a considered judgment on 24-12-2014.

The said judgment is called in question on various grounds as set out in the appeal memorandum.

The learned counsel appearing for the appellant has vehemently argued that trial court has not properly evaluated the oral and documentary evidence in right perspective and has unnecessarily attached much importance to the civil dispute that was pending between PW-2 and accused Mohd. Tanveer and that the evidence placed on record has not been assessed on the touch stone preponderance of probabilities of law.

The learned Special Judge has chosen to frame six points for consideration and Point Nos. 1 to 5 have been answered in the Negative and ultimately the respondents have been acquitted.

The accused No. 1 who the respondent No. 1 in this appeal had filed a civil suit in O.S. No. 361/2010 against Ravi Kumar and Laxmikant who have been examined as PWs-4 and 6 in the Sessions Case. The said suit was filed for the relief of perpetual injunction in respect of a business shop No. 20 measuring 8.9-feet X 18.8-feet situated in the cellar portion of KHB Shopping Complex, opposite to Gulbarga Bus Stand. The plaintiff Mohd. Tanveer is stated to have let out the said schedule shop to one Mohd. Muqtadeer for a period of 11-months on a monthly rent of Rs. 2,500/- and had even received Rs. 40,000/- from the brother of the plaintiff as security. Even after the expiry of the stipulated period, the plaintiffs brother continued his business in the suit premises till the second week of February, 2010. In a fire accident that occurred on 14-2-2010 the brother of the plaintiff had sustained grievous burn injuries and therefore he was hospitalized for a longer period. Therefore, the plaintiff and defendant No. 1 i.e. Mr. Ravi Kumar had entered into an amicable settlement in regard to the lease of the said property. According to him, shop No. 20 was given to the plaintiff on monthly rent of Rs. 7,100/- by receiving a sum of Rs. 1,00,000/- as security deposit and lease agreement was executed on 29-3-2010. The said agreement was notarised before the Notary Public.

The defendant No. 1 is stated to have taken the original lease deed stating that he would return the same after obtaining the xerox copy of it but did not return the original document to the plaintiff The defendant No. 1 did not hand over the southern portion of shop No. 20 as agreed upon. Since defendant did not hand over the southern portion of shop No. 20, the plaintiff did not pay the monthly rent to the defendant and he is stated to be carrying the business in the northern portion of the property under the name and style of "LIMRA FAST FOOD".

The defendant No. 2 choose to get a notice issued to the brother of the plaintiff on 30-11-2009 and later on as the brother of the plaintiff was admitted in a hospital, at that point of time and hence no notice could be served upon him. But, defendant No. 1 had executed a lease agreement on 29-3-2010 in favour of the plaintiff and therefore plaintiff replied the said notice in detail. In the reply notice, defendants had admitted the execution of the lease agreement executed in favour of the plaintiff and the defendant No. 1 got issued a notice on 30-6-2011 calling upon the plaintiff to vacate and hand over the vacant possession of the said property. On 29-11-2010 the defendant Mr. Ravi Kumar came near the property, threatened him with dire consequences if he did not hand over the vacant possession of the schedule property. Therefore, a suit was filed by Mohd. Tanveer and in the said suit defendants not only filed written statement but had even filed a counter claim on the ground that the said property was required for the purpose of running a business. Ultimately suit was dismissed after contest as against which Regular Appeal is filed in terms of Sec. 96 of CPC in R.A. No. 70/2012 before the Senior Civil Judge Court at Kalaburagi.

What is argued before this court by the learned counsel Sri. Koujalagi C.L., is that overwhelming evidence is placed on record in support of the charges leveled against the accused and that the trial court has not properly appreciated the evidence in right perspective and that it has chosen to reject the evidence of material witnesses on the ground that they are all inter-se related to each other and their evidence is interested and they are interested witnesses. It is further argued that the learned Judge has blown out of proportion the delay in filing the first information before the police and nothing has been placed on record to show that the first information was lodged after due deliberations and that there was embellishment or modulation in the case of the complainant.

In the appeal filed against acquittal, the innocence of the accused is further supported by the fact of their acquittal. If there are two views possible in a criminal appeal arising out of the acquittal, that view which is favorable to the accused must be adopted is the normal rule.

Incident is said to have taken place at about 1-30 p.m. on 6-8-2012 near Shop No. 20 of KHB Plaza Shopping Complex situated opposite to the main Bus Stand in Gulbarga and the said property is in the vicinity of the city police station. First Information was lodged by Babu at about 6-15 p.m. of 6-8-2012 and the police registered the case within half an hour. The first information is marked as Ex. P-2 and FIR marked as Ex. P-8. The FIR was handed over to Damodhar PC-692 to lodge the same before the jurisdictional Special Judge at about 7-15 p.m., on the same night. But, it was lodged before the Special Judge at 11-20 p.m. on 6-8-2012. It is to be seen that, in delay in lodging first information has not been explained. There was already a delay of 5-hours in lodging the first information relating to the assault stated to have been made by the accused and abuse made by the accused with reference to their case. It is not their case that one of them was seriously injured and therefore they had to go to hospital and then lodge the first information. It is elicited from the mouth of the material witnesses that the distance between the place of incident and the police station is just half kilo meter. This is forthcoming from the Col. No. 4(b) of FIR marked as Ex. P-8.

The first information received by the police must be lodged at the earliest before the jurisdictional Judge. There must be no undue delay and if there is any delay the same has to be explained. Damodhar PC-692 who handed over the FIR and the first information Ex. P-2 and Ex. P-8 to the jurisdictional Judge, has not at all been examined. The residence of the Special Judge is in Gulbarga city itself. How there was so much delay in lodging the first information and FIR before the jurisdictional Judge is also not explained. The delay in lodging the first information by the first informant and delay in sending the FIR by the police to the jurisdictional Judge/Magistrate must be reasonably explained. Lease there would be scope for drawing an inference that first information was lodged after due deliberations and that first information report is ante timed. Principles to this effect has been sufficiently explained by the Hon''ble Supreme Court in the case of Ishwar Singh Vs. State of U.P., AIR 1976 SC 2423 : (1976) CriLJ 1883 : (1976) 4 SCC 355 : (1976) SCC(Cri) 629 .

Non explanation of delay in lodging the first information and the FIR assumes importance in the light of the serious civil dispute that was pending between the son of the first informant and the accused No. 1. Admittedly, Mohd. Tanveer has filed a suit for relief of injunction in respect of the property bearing shop No. 20 measuring 8.9-feet X 18.8-feet situated in KHB Plaza, Gulbarga in O.S. No. 361/2010 on 24-7-2010 and it was dismissed after contest on 21-6-2012 i.e. one and half year prior to registration of the case. The plaintiff Mohd. Tanveer who is accused No. 1 chose to file a appeal in terms of Sec. 96 of CPC before the Senior Civil Judge Gulbarga in R.A. No. 70/2012, challenging the dismissal of his suit in O.S. No. 361/2010. The appeal was filed on 21-7-2012 and disposed off on 29-11-2012. During the pendency of this first appeal, the incident is said to have been taken place. Ultimately, said appeal came to be allowed on 29-11-2012 and the judgment and decree passed in O.S. No. 361/2010 was set-aside and the suit was decreed as prayed for restraining the defendant from interfering with peaceful possession and enjoyment till he is vacated under due process of law. Apart from that the counter claim filed by the defendants therein was also dismissed.

When the appeal had been filed and the respondents therein had received the notice, it is un-understandable how they could go near the schedule shop and demand the tenant to vacate and hand over the schedule property. After the appeal was allowed, Mr. Laxmikanth and Mr. Ravikumar, choose to file a petition in HRC No. 7/2012 seeking vacation of tenant Mohd Muqtadeer on 22-11-2012 and this is evident from the certified copy of the order sheet maintained in HRC No. 7/2012 marked as Ex. D-2.

The learned Special Judge has acquitted all the accused in so far as it relates to all the charges levelled against them. In the first information lodged at Ex. P-3 Mr. Babu who is examined as PW-2, has mentioned that accused Mohd. Tanveer, Muktadeer, Bajju, Pasha Mannan accompanied by 15-20 persons, assaulted him with their hands on his chest, abdomen and dragged him here and there by holding collar of the shirt and all of them abused him with reference to his caste and held out threats with dire consequences to his life. Omnibus allegation is made against the accused as well as 15-20 persons who had accompanied them. It is also specifically mentioned that 15-20 persons came there along with Muktadeer, Bajju, Pasha Mannan were not known to him. The name of Mohd. Tanveer accused No. 1 and name of accused No. 4 Pasha does not find place in Ex. P-3 which is a detailed first information. During the course of cross examination PW-2 Babu has specifically deposed that in Ex. P-3, he has not mentioned about the persons who exactly abused him and who exactly assaulted him. He has further admitted that one could reach police station within 10-minutes from the place of incident. Why he did not lodge the complaint at the earliest is not explained in any manner.

Mr. Yogendra, Mr. Ravikumar and Mr. Laxmikanth examined as PWs-3, 4 and 6 are none other than the sons of PW-2. PW-3 Yogendra has only spoken about the presence of five accuse near the spot and assault being made on him and his father. According to him, one Sharanappa Dimmi intervened and pacified both of them. The said Sharanappa Dimmi is examined as PW-5. He has deposed in his examination in chief that all the accused were known to him and they abused PW-2 with reference to his caste and dragged him here and there and snatched the mobile phone possessed by Yogendra and threw it on the ground. He is stated to have pacified them. In his cross examination he has stated that he does not know as to who scolded PW-2 and has dragged him here and there and who assaulted him. He is also a witness belonging to the same community. He does not speak specifically anything about the assault being made on PW-2.

Mr. Ravikumar is examined as PW-4 who was not present at the time of the alleged incident. He came to know about the alleged incident later. Therefore, he has deposed that accused abused his father and assaulted his brother Yogendra later on.

Mr. Laxmikanth is examined as PW-6. He has deposed that when he went near shop No. 20 and asked the accused as to why they came near said shop No. 20, at that time, first accused attempted to assault him and four persons followed him and abused him with reference to his caste. It is his case that himself and his brother Mr. Ravikumar had gone there. It is his case that they held out threats to their lives. He does not speak anything about 15 to 20 persons accompanying the accused. He has further deposed that he did not disclose to the police as to who abused him and who assaulted him. Apart from this, PW-2 Babu has denied the suggestion that he has given statement before the police vide Ex. D-3. Further statement recorded on 7-8-2012 discloses that by oversight, he had mentioned about presence of 15-20 persons there who had accompanied the accused persons. He has denied having given any statement before the police about accused snatching the mobile from his son Yogendra and causing damage to it. In the light of these serious contradictions marked as Ex. D-3, the evidence of PW-2 and his son appears to be not credible. Inordinate delay in lodging first information and sending first information report in a case like this weakens the very substratum of the case of the prosecution. As already stated, the contradictions elicited from the mouth of the material witnesses are serious contradictions giving raise to a serious dispute about the genesis of the prosecution case. These aspects have been considered by the trial court in order to give the benefit of doubt on the ground of prosecution''s inability to prove the guilt of the accused beyond reasonable doubt.

When the entire oral and documentary evidence placed on record is tested on the touch stone of the preponderance of probabilities, the finding given by the learned Judge is justified. Viewed from any angel, no grounds are made out to admit the appeal. Hence appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission.