CRL.A.NO.100011/2019 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON’BLE MS.JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.100011/2019 BETWEEN: UJWALA W/O. ASHISH KALKUNDRI AGED ABOUT 59 YEARS, OCC. BUSINESS, R/O. MRUTUNJAY NAGAR, BELAGAVI, DIST. BELAGAVI - 590 001 ...APPELLANT (BY SRI. PRASHANT S. HOSMANI, ADVOCATE) AND: 1. THE STATE OF KARNATAKA REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH DHARWAD - 580 011. 2. SUDHIR S/O. NEELKANTH DHAMANKAR AGED ABOUT 47 YEARS, OCC. MEDICAL REPRESENTATIVE 3. YOJANA W/O. SUDHIR DHAMANKAR AGED ABOUT 40 YEARS, OCC. HOUSEHOLD, Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA CRL.A.NO.100011/2019 2 R-2 AND R-3 ARE R/O. PLOT NO.21, MRUTYUNJAYA NAGAR, TILAKWADI, BELAGAVI, DIST.BELAGAVI - 590 001. …RESPONDENTS (BY SRI. ABHISHEK MALIPATIL, HCGP FOR R-1; SRI. SUDHIR N. DHAMANKAR, PARTY IN PERSON - R-2; SRI. SURAJ MUTNAL, ADVOCATE FOR R-3) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED 30.11.2018 PASSED IN SPL. CASE NO.129/2013 THE COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT FOR SC/ST ACT, BELAGAVI AT BELAGAVI PRESENTING THE ABOVE APPEAL AGAINST THE ACQUITTAL OF ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 451, 354, 323, 506 READ WITH SECTION 34 OF IPC AND SECTION 3(1)(X) OF THE SCHEDULED CASTE AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 AND CONVICT THE ACCUSED OF THE OFFENCES CHARGE SHEETED AGAINST THEM. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 04.12.2024/18.03.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV JUDGMENT (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) This appeal filed under Section 372 of the Code of Criminal Procedure, is by the complainant, wherein she has challenged the judgment and order passed by the trial Court, acquitting the respondents/accused Nos.1 and 2 for the CRL.A.NO.100011/2019 3 offences punishable under Sections 451, 354, 323, 506 r/w Section 34 of IPC and Sections 3 (1) (x) of SC/ST (POA) Act, 1989. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Based on the complaint filed by the complainant under Section 200 Cr.P.C, and on reference to the concerned police for investigation, a charge sheet came to be filed against the accused persons alleging that on 31.10.2013, at 7.30 a.m accused Nos.1 and 2 who belong to Brahmin caste, trespassed into the house of complainant who belongs to Scheduled Caste. They picked up quarrel with her saying that even though she belongs to Scheduled caste, she has married a Brahmin and performing pooja as though she belong to Brahmin caste. They abused her in filthy language referring to her caste. When she went inside the pooja room, they followed her. Accused No.2 assaulted complainant on her cheek. Accused No.1 tried to outrage her modesty by CRL.A.NO.100011/2019 4 pulling her saree. They gave threat saying that if she fails to remove the idol of Kalikadevi, they would not spare her and thereby committed the offences under Sections 451, 323, 354, 506 r/w Section 34 of IPC and Sections 3 (1) (x) of SC/ST (POA) Act, 1989. 4. Accused pleaded not guilty and claimed trial. 5. In order to establish the allegations against the accused, in all 9 witnesses are examined as PWs-1 to 9 and Exs.P1 to 9 are marked for the prosecution. 6. During the course of their statements under Section 313 Cr.P.C, the accused have denied the incriminating evidence led by the prosecution. 7. Accused have not led any oral evidence on their behalf, but got marked Exs.D1 to 7 through the cross- examination of prosecution witnesses. 8. Vide the impugned judgment and order, the trial Court acquitted the accused persons holding that the CRL.A.NO.100011/2019 5 prosecution case is not reliable and the allegations against accused persons are not proved beyond reasonable doubt. 9. State has not challenged the impugned judgment and order of the trial Court. 10. Complainant has challenged the same contending that the impugned judgment and order is opposed to law, facts and probabilities of the case. The trial Court has not given much weight to the evidence adduced by the prosecution. There is no proper analysis of the evidence on record by the trial Court, except reproducing the testimonies of the witnesses. It has erred in relying upon the documents produced by the accused. The photographs at Exs.D1 to 3 are not admissible in evidence. Even if they are accepted as true, it will not go to the root of the prosecution case. The fact that PWs-8 and 9 are eye witnesses is established by the prosecution beyond reasonable doubt. The evidence of PWs- 7 to 9 is corroborative and prove the hatredness developed by the accused against the complainant. Viewed from any CRL.A.NO.100011/2019 6 angle, the impugned judgment and order is not sustainable and hence, the appeal. 11. On the other hand learned counsel representing the accused submitted that complainant and accused are neighbours. Accused have complained to the Municipal authorities that the house of complainant is constructed without leaving set back and encroaching the site of accused. In this background, false complaint is filed to harass the accused persons. The case of the prosecution is not beyond suspicion. The immediate neighbours of the complainant who would be natural witnesses are not cited as witnesses. On the other hand employees of the husband of complainant are planted as eye witnesses. The husband of the complainant who was very much present in the house is not an eye witness to the alleged incident. On detailed appreciation of oral and documentary evidence on record, the trial Court has rightly acquitted the accused persons. There is no perversity in the findings given and conclusions arrived at by the trial CRL.A.NO.100011/2019 7 Court calling for interference and sought for the dismissal of the appeal. 12. Heard elaborate arguments of both sides and perused the record. 13. In the light of specific defence taken by the accused, it is necessary to examine whether the allegations against accused are proved beyond reasonable doubt and whether the evidence of complainant, her husband and PWs- 8 and 9 who are alleged eye witnesses is reliable and trustworthy. 14. It is not in dispute that complainant belong to ST category and her husband PW-7 Ashish Kalkundri is a Brahmin by caste. Similarly, accused are also Brahmins by caste. PW-2 Vijay Gasti is the Tahsildar who has issued the caste certificate as per Ex.P3. He has deposed that complainant belong to Hindu - Holer, which comes under Schedule Caste, whereas accused persons belong to Brahmin caste. Even though this witness is cross-examined by the CRL.A.NO.100011/2019 8 defence suggesting that without conducting proper enquiry, he has given caste certificate fact remains that they are not disputing that complainant belong to Schedule Caste. 15. It is also not in dispute that complainant married PW-7 Ashish Kalkundri who is Brahmin by caste and they were living in an area surrounded by Brahmins. Complainant has installed an idol of Goddess Kali and was performing pooja daily. It is alleged that she was also holding annual pooja of Goddess Kali by fixing Pendal on the public road causing inconvenience and it was objected by the accused persons. 16. According to the prosecution, while the complainant is the victim, PWs-8 and 9 are eye witnesses. Even though the husband of complainant i.e., PW-7 Ashish Kalkundri was very much present in the house where the alleged incident took place, he is not an eye witnesses, but came to know about it after the incident was over. CRL.A.NO.100011/2019 9 17. During the course of her evidence, complainant who is examined as PW-4 has reiterated the complaint averments and deposed that on the date of incident i.e., 31.10.2013 at 7.30 a.m, while she was engaged in the pooja, both accused barged into her house and abused her referring to her caste and demanded that though she belongs to Scheduled Caste why she is performing pooja of Goddess Kali. They assaulted on her cheek, chest and leg. PW-8 Pundalik and another person came and rescued her. Accused also gave threat to her life saying that she should leave the said house. During her examination-in-chief complainant has not spoken to about the presence of her husband in the house when the incident took place, but during her cross- examination has stated that after the incident she woke up her husband and informed about the incident. 18. As noted earlier, according to the prosecution PWs-8 and 9 are the eye witnesses to the incident. It is pertinent to the note that the house of complainant is situated in a residential area. The alleged incident took place CRL.A.NO.100011/2019 10 around 7.30 a.m. It has come in the evidence that there is also park in front of the house of complainant and many people go for walk to the said park. If the incident has taken place in the morning hours, it is quiet natural that the commotion would have attracted the immediate neighbours and persons who were proceeding on the road. However, none of them are cited as eye witnesses. This fact assumes importance since PWs-8 and 9 are not neighbouring persons. According to their evidence, they are chance witnesses happen to be moving on the road. 19. It is relevant to note that during the cross- examination of PW-7 Ashish Kalkundri, the husband of complainant, it is elicited that he is running a gas agency. During the cross-examination of PW-4 i.e, complainant, photographs at Exs.D1 and 2 are marked and she has admitted that they are the photographs of PWs-8 and 9. Similarly, during the cross-examination of PW-7, Exs.D6 and 7 are marked which are the photographs of PWs-9 and 8. However, PWs-8 and 9 have disputed that Exs.D1, 2 and 6 CRL.A.NO.100011/2019 11 and 7 are their photographs. For reasons best known to them, these witnesses have disputed that PWs-8 and 9 are the employees of gas agency run by PW-7 and are interested witnesses. 20. Even though PWs-8 and 9 have deposed that they were present when the incident took place, having regard to the fact that they have concealed the fact that they were employees of PW-7 and they have also failed to prove their presence at the scene of occurrence natural, their testimonies are not reliable. In fact PW-8 has gone to the extent of deposing that he is a Mali by profession and was gone to the said area for gardening work. Similarly, PW-9 has also failed to explain for what reason he had gone to the said area and why both PWs-8 and 9 have concealed the fact of being employees of the gas agency run by PW-7. In fact Exs.D6 and 7 are the 'B' register extracts of vehicle No.KA- 22/N-5224 belonging to PW-9 Ashok Maikar and vehicle No.KA-22/C-6015 belonging to PW-8 Pundalik Marigannavar and these two vehicles are being used by them for the gas CRL.A.NO.100011/2019 12 agency. From the manner in which PW-4, 7, 8 and 9 have given evidence, this Court has no hesitation to hold that PWs-8 and 9 are planted witnesses and their testimonies cannot be taken into consideration. 21. So far as the evidence of PW-7 is concerned, it is also not trustworthy. According to the complainant as well as PW-7, when the incident took place PW-7 was sleeping inside the house. However, on hearing the commotion, he did not choose to intervene. When persons who were moving on the road viz., PWs-8 and 9 attracted by the commotion inside the house came and went to the rescue of complainant, at any stretch of imagination it cannot be believed, PW-7 being her husband did not hear the commotion and as such did not go to her rescue. PWs-8 and 9 also have deposed that PW-7 came after the accused left the place. This create doubt as to whether really the alleged incident took place. The testimonies of PWs-4, 7, 8 and 9 are not reliable and trustworthy and no reliance could be placed on the same. CRL.A.NO.100011/2019 13 22. Even though there are allegations are that accused persons assaulted the complainant on her cheek, pulled her saree with an intention to outrage her modesty and in the process, she fell down, admittedly, she has not taken any treatment. 23. Now coming to the complaint with regard to the incident in question. PWs-4 and 7 have deposed that after the incident, they went to the police station to file complaint. However, except a police constable no other police officials were present to receive their complaint and therefore, after contacting their advocate, they have filed a private complaint. As per Section 154(3) Cr.P.C, any person, aggrieved by a refusal on the part of an officer incharge of a police station to record information referred to in sub-Section (1), may send the substance of such information in writing and by post to the superintendent of police concerned, who in turn if satisfied that such information discloses commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police CRL.A.NO.100011/2019 14 officer subordinate to him in the manner provided by this Code. Admittedly, the complainant has not followed this procedure by approaching the Superintendent of Police. The evidence of PWs-4 and 7 that in the police station, none of the police officers were present, except a constable is also not believable. They could have waited some more time and filed the complant. 24. In the present case, except PW-3, who has registered the case, the investigating officer who conducted the entire investigation is not examined. Consequently, the accused did not have the opportunity of cross-examining him with regard to availability of other eye witnesses and PWs-8 and 9 being chance witnesses inducted to strengthen the prosecution case. 25. The trial Court after appreciation of oral and documentary evidence placed on record has rightly held that the prosecution has miserably failed to prove the allegations against the accused beyond reasonable doubt. On the other CRL.A.NO.100011/2019 15 hand, since the accused have made complaint against the PWs-4 and 7 for having constructed their house without leaving set back and also causing nuisance, there was motive and ill will for the complainant to falsely implicate them. The conclusions arrived at by the trial Court is consistent with the evidence on record and this Court finds no perversity calling for interference. In the result, the appeal fails and accordingly, the following: ORDER (i) Appeal filed by the complainant under Section 372 of Cr.P.C is dismissed. (ii) The impugned judgment and order dated 30.11.2018 in Spl.Case No.129/2013 on the file of III Addl.District and Sessions Judge and Spl.Court for SC/ST Act, Belagavi is confirmed. (iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith. Sd/- (J.M.KHAZI) JUDGE RR