Rajesh vs The State

K.N. Keshava Narayana, J.—This appeal filed u/s 374 of Cr.P.C. is directed against the judgment and order dated 22.09.2007, pasted by the II Additional District and Sessions Judge, Kolar in Special C.C. No. 30/07, convicting the appellant/accused No. 1 for offence punishable u/s 435 of IPC and sentencing him to undergo R. 1. for two years and to pay fine of Rs. 5,000/- for the said offence.

The appellant and his younger brother Vijaya Kumar were tried before the II Additional Sessions Judge, Kolar far offences punishable under Sections 435 and 504 read with Section 34 of IPC and u/s 3(1)(x) and (xi) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act).

the case of the prosecution in brief is as under:

P.W. 1- Smt. Manjula, resident of Avalanagenahelli village, a Member of Scheduled Castes was the chair-person of Aruru Grama Panchayath The appellant being the resident of Adeunagarahalli village in Chikkaballapura Taluk was an elected Member of the said Village Panchayath. During the year 2006-07, the Village Panchayath headed by P.W. 1 had submitted a list of beneficiaries under Ashraya Scheme to the Higher Authorities for approval. On 13.04.2007, at about 11.00 a.m. when PW.1 was in the office of Aruru Grama Panchayath, the appellant and his brother came to the office and quarreled with PW.1 stating that some of the beneficiaries named by him and who figured in the list, have been deleted from the list sent to the higher authorities and thereby she has changed the list of the beneficiaries and in that regard he quarreled with PW.1 and went away from the office. Again at about 4:00 p.m. on the same day, the appellant and his brother came to the office of the Grama Panchayath and quarreled with PW.1, abused her in filthy language touching her caste with an intention to insult and humiliate her in a place within the public view and thereafter removed the chairs and tables from the office dumped them in the open space in front of Village Panchayath office and after pouring petrol, they set fire to furnitures and thereby'' committed the acts of mischief by setting fire and caused loss to the Village Panchayath worth more than Rs. 100/-. the incident was witnessed by PW.2-Shivananda, working as Librarian in the Grama Panchayath PW.3 - T.C. Narayanaswamy, the resident of Thumukala village; PW.4-A.H. Venkatarayappa, working as peon in the said Grama Panchayath, PW.5 - Krishnappa, agriculturist and PW.6 - Chikkakudumalappa, a labourer.

In respect of this incident, on the same day, PW.1 lodged a complaint before the jurisdictional Police at about 8.45 p.m. as per Ex. P4, based on which, the police registered the case in Crime No. 47/2007 for offences punishable under Sections 435 and 504 of IPC and took up investigation. During the investigation, the Investigating Officer visited the scene of occurrence drew spot and seizure mahazar marked as Ex. P5 and seized half burnt articles from the scene of occurrence at per M.Os. 1 to 5. The torn sari and blouse produced by PW.1 as per M.Os. 6 and 7 and petrol can as per M.O. 8. were subsequently cased. On 18.04.2007, PW.1 lodged another complaint as per Ex. P2, incorporating allegation of abuse touching her caste, attracting offence punishable under Sections 3(1)(x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Spl. Act). Based on the said Complaint those offences were added to the case already registered in Crime No. 47/2007 and investigation was proceeded with. On 18.04.2007, PW.1 was subjected to medical examination. The Investigating Officer after collecting the caste certificate as well as the wound Certificate in respect of PW.1 submitted charge sheet against the accused persons. During the investigation, two accused persons were arrested and they were enlarged on bail.

Upon service of summons, the appellant and his brother appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them. After trial, the learned Sessions Judge by the judgment under appeal acquitted accused No. 2 of all the charges levelled against him. At the same time, the learned Sessions Judge also noticed that the prosecution has failed to prove the guilt of the appellant for offence punishable under sessions 504 of IPC and Section 3(1)(x) and (xi) of Special Act. However, the learned Sessions Judge held that the prosecution has proved beyond reasonable doubt, the guilt of the appellant for offence punishable u/s 435 of IPC, Consequently, the learned Sessions Judge, convicted the appellant for the said offence and sentenced him to undergo R.I. for two years and to pay fine of Rs. 5,000/- for the said offence Being aggrieved by the said judgment of conviction, the appellant has presented this appeal

I have heard Sri. Shankarappa, the learned Counsel appearing for the appellant and Sri. B. Balakrishna, the learned Additional Government pleader appearing for the respondent- State. Perused the records and the Judgment under appeal.

The learned Counsel appearing for the appellant would submit that the judgment of the court below convicting the appellant far offence punishable u/s 435 of IPC, is perverse, illegal and contrary to the evidence on record, as such, it is liable to be set aside; that the learned Sessions Judge having found that the evidence of the material witnesses do not inspire the confidence of the Court insofar as the complicity of accused No. 2 is concerned, ought to have rejected this testimony of those witnesses in toto, as, according to the evidence of these witnesses, the overt acts attributed against both the accused is common and the same is not divisible, therefore, the learned Sessions Judge ought to have acquitted the appellant of all the charges on par with accused No. 2; that the learned Sessions Judge has failed to see various circumstances brought out on record indicating the conduct of PW.1 that she is not hesitant to falsely implicate innocent person and also that she had no respect for the truth, therefore, the learned Sessions Judge ought to have rejected the testimony of PW.1 in the entirety; that the learned Sessions Judge having acquitted accused No. 2 doubting his presence at the scenes, of occurrence at the time of the alleged incident, could not have convicted the appellant for offence punishable u/s 435 of IPC, since such act an alleged by the prosecution could not have been accomplished by the appellant alone that too in the presence of PW.1 as chair-person of the Village Panchayath and P.Ws. 2 and 3 being its employees; that the learned Sessions Judge has failed to see that the evidence of material witnesses is full of contradictions and discrepancies, which goes to the root of the case of the prosecution, therefore, the testimony of those witnesses could not have been based for convicting the appellant for offence punishable u/s 435 of IPC. Therefore, the learned Counsel sought for allowing the appeal by setting aside the judgment of conviction and for acquittal of the appellant

On the other hand, the learned Additional Government Pleader sought to justify the Judgment passed by the court below and further contended that the Judgment of the court below is in accordance with the evidence on record and the learned Sessions Judge, after proper evaluation and appreciation of the evidence on record, has recorded the finding that the accused is guilty of the mischief by fire therefore, the Judgment under appeal does not call for interference by this Court It is further submitted that merely because the learned Sessions Judge has acquitted accused No. 2 by extending benefit of doubt, the appellant cannot seek acquittal on similar ground since, the evidence placed by the prosecution would clearly establish the presence of the appellant at the scene of occurrence and the overt acts committed by him in setting fire to the furniture of the Village Panchayath, therefore, the judgment under appeal is sound as such, there are no merits in this appeal and therefore, the appeal is liable to be dismissed.

I have bestowed my serious considerations to the submissions made on both sides. In the facts and circumstances of the case and in the light of submissions made on both the sides, the point that arise for consideration in this appeal is, "whether the learned sessions Judge is justified in convicting the appellant for the offence punishable u/s 435 of IPC?".

There is no dispute that us on the relevant date i.e., 13.04.2007, PW.1- Smt. Manjula, was the Chair-person of Aruru Grama Panchayath, while the appellant was one of the elected Member of the said Panchayath. According to the prosecution, the incident took place on 13.04.2007 both inside and outside the office of the Grama Panchayath. the specific case of the prosecution was that the appellant and his brother came to the office of Grama Panchayath on 13.04.2007 at about 11.00 a.m. and quarreled with P.W. 1 in relation to the list of beneficiaries under Ashraya Scheme sent to the higher authorities for approval and abused her. Thereafter, at about 4.00 p.m. again both came to the Panchayath office and abused PW.1 in filthy words touching her casts and thereafter, set fire to the furniture. The fact that P.W. 1 is a Member of Scheduled Castes is not in dispute. The said fact is also proved by Caste Certificate issued by the Tahsildar of Chikkaballapura Taluk as per Ex. P. 6. As already noticed above, the learned Sessions Judge has acquitted the appellant for the charge levelled against him for offences punishable under Sections 3(1)(x) and (xi) of the said Act and for offence punishable u/s 504 of IPC. The State is not aggrieved by the said judgment of acquittal of the appellant for the said offence. Therefore, in this appeal it is not necessary for this Court to consider the correctness of the said finding.

According to the prosecution witnesses, after quarrelling with PW.1, both accused persons removed the tables and chairs from inside the office of the Grama Panchayath to the open place in front and accused No. 1 (appellant) poured petrol and set fire to them. As noticed earlier, the learned Sessions Judge has disbelieved the case of the prosecution against accused No. 2 and expressed the doubt about the presence of accused No. 2 at the scene of occurrence, more so, in the light of the fact that in the complaint filed at the earliest point of time as per Ex. P4, the complicity of accused No. 2 was not indicated and it is only in the complaint subsequently lodged on 18.04.2007 as per Ex. P2, the complicity of accused No. 2 was indicated. If the presence of accused No. 2 is doubted, question would be whether the appellant could alone accomplish the alleged act of setting fire to the tables and chairs by taking them from inside the office of Grama Panchayath, to the open space in front.

I see considerable force in the contention of the learned Counsel for the appellant, that, if the presence of accused No. 2 is disbelieved, than accused No. 1 (appellant) alone could not have accomplished the said act and to that extent, the case of the prosecution is highly improbable and unbelievable. Even according to the evidence of the prosecution witnesses, at the time of the incident, PWs. 1 to 3 and others were present there. If all of them were there, it is highly difficult to believe that they allowed accused No. 1 to lift the tables and chairs from inside the office to the open yard in front of the office, so that he could set fire to them. Therefore, the case of the prosecution with regard to the appellant setting fire to the furniture of Gram Panchayath is highly unnatural and unbelievable.

It is interesting to note that even according to the evidence of P.W. 1, she went to police station along with a written complaint but in the police station, the police told her that the complaint is not in order, therefore, the police wrote a different complaint and obtained her signature and the complaint which she had presented was not returned to her. She has identified Ex. P4 as the complaint prepared by the police in the police station to which she subscribed her signature. The complaint which was stated to have been prepared by her and given to the police is not produced before the Court. From this, it is clear that Ex. P4 is not the complaint prepared at the instance of PW.1. On the other hand, the contents of Ex. P. 4 is prepared by police to suit their convenience. In Ex. P4 there is absolutely no allegation of the appellant having abused PW.1 in filthy language touching her caste and it also did not show the complicity of acquitted accused No. 2. About five days later, PW.1 stated to have lodged Ex. P3 setting out in detail the incident, incorporating the allegations attracting the offence under the Special Act and also the complicity of Acquitted accused No. 2. The learned Sessions Judge has doubted the presence of accused No. 2 and also the case of the prosecution in relation to the offence under the Special Act, in view of the fact that Ex. P4 was silent in this regard. From this, it is dear that the case as sought to be made out by PW.1 in Ex. P2 has been disbelieved to a greater extent. This conduct on the part of PW.1 should have been viewed seriously while considering the charge levelled against the appellant for offence punishable u/s 435 of IPC. Having regard to the discussion made above, this Court is of the considered opinion that the learned Sessions Judge is not justified in convicting the appellant for offence punishable u/s 435 of IPC heaving doubted the complicity of accused No. 2 in the said act, Reading of the evidence of the material witnesses indicates that the overt acts on the part of both the accused persons was joint and was not inseparable. The court is required to swift the evidence so as to separate the shaft from the grain. If it cannot be separated, the whole evidence of the witnesses is required to be rejected. Reading of the evidence of material witnesses in this case indicates that it is very difficult to separate the truth from the false hood. If the evidence of these witnesses cannot be believed in relation to the complicity of accused No. 2, it has to be rejected even against the appellant, since their evidence in inseparable, insofar as the complicity of two accused persons. The learned Sessions Judge having extended the benefit of doubt to accused No. 2, is not justified in not extending the said benefit to accused No. 1 also. Having regard to the conduct of PW.1 and the nature of evidence of the material witnesses, the learned Sessions Judge ought to have extended the benefit of doubt oven to the appellant and ought to have acquitted the appellant for offence punishable u/s 435 of IPC. Therefore, the judgment of the court below convicting the appellant for offence punishable u/s 435 of IPC is perverse, illegal and contrary to the evidence on record. Therefore, the judgment under appeal is liable to be interfered with and the appellant/accused No. 1 is entitled for an order of acquittal.

Accordingly, the appeal is allowed. The judgment and order dated 22.09.2007 passed by the II Additional District and Sessions Judge, Kolar in Spl. C.C. No. 30/2007, convicting the appellant, for offence punishable u/s 435 of IPC and sentencing him to undergo imprisonment and also to pay fine is set aside. The appellant is acquitted of the charge levelled against him for the offence punishable u/s 435 of IPC. The bail and surety bond of the appellant is ordered to be cancelled.