(Prayer: This Crl.a. is filed u/s.374(2) Cr.p.c praying to set aside the order ated:1.10.14 passed by the i addl.dist. and S.J., Mandya in spl.c.no.64/13 - convicting the appellant/ accused for the offence p/u/s 323 of IPC and u/s 3(1)(x)xi) of SC/ST (POA) act 1989 r/w 34 of IPC and the appellants/accused are sentenced to pay a fine of rs.1,000/- each in default S.I. for one month for the offence p/u/s 323 r/w 34 of IPC and etc.)

Oral Judgment:

1. The appellants have preferred this appeal against the judgment of conviction and order on sentence passed by the I Addl. District and Sessions Judge, Mandya in Spl. C. No.64/2013 dated 01.10.2014.

2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court.

3. The brief facts leading to this appeal are that the Dy.S.P, Malavalli Sub-Division, Malavalli submitted the charge-sheet against the accused for the offences punishable under Section 323, 354, 504, 506 read with 34 of Indian Penal Code and Section 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989.

4. It is alleged by the prosecution that on 01.08.2013 at about 06.30 p.m. near Milk Produce Women's Co-operative Society Ltd., at Maliyuru village when the complainant was taking the milk with the help of CW2-Nanjamma and at that time accused Nos.1 and 2 came and asked her with regard to giving of bonus of five years and at that time complainant requested the accused No.1 to come after 5 minutes and at that time accused No.1 questioned with regard to the delay of one month and the complainant told that her children are not well and thereby she is not able to write the document and at that time accused Nos.1 and 2 abused her in filthy language as  by taking her caste knowing fully well that she belongs to SC community and humiliated her and insulted her in the public view and accused No.1 slapped on her cheek and also assaulted on her left neck and with an intention to outrage her modesty caught hold her nighty, dragged her and torn her nighty and also threatened the complainant stating that they will kill her if she gave a complaint to the police and accordingly after arrival of her husband the complainant had been to the police station and filed complaint basing upon which the Kirugavalu police registered a case and thereafter, Dy.S.P, Malavalli, took up further investigation and collected the evidence and submitted charge-sheet against the accused for the above said offences. After filing the charge-sheet the case was registered in Spl.C No.64/2013 and accused Nos.1 and 2 were enlarged on bail.

5. Upon hearing on charges, the trial Court has framed charges against accused Nos.1 and 2 for the alleged commission of offences, same was read over and explained to accused Nos.1 and 2. Having understood the same, accused Nos.1 and 2 pleaded not guilty and claimed to be tried.

6. To prove the guilt of the accused, in all, 13 witnesses were examined as PW1 to PW13. 9 documents were marked as Exhibits P1 to P9. One material object marked as MO.1. On closure of prosecution side evidence, statements of the accused under Section 313 of Code of Criminal Procedure were recorded. Accused Nos.1 and 2 have totally denied the evidence of prosecution witness. However, they have not chosen to lead any defence evidence on their behalf.

7. Having heard the arguments on both sides, the trial Court has convicted accused Nos.1 and 2 for the offences punishable under Section 323 read with 34 of IPC and Section 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities), Act, 1989 and accused Nos.1 and 2 are acquitted for the offence punishable under Section 506 of Indian Penal Code.

8. The learned counsel for the appellants would submit that, the trial judge has not properly appreciated the evidence on record in proper perspective. The trial judge grossly erred in assessing the evidence of eye- witnesses examined as PW2 to PW4, PW11 to PW13. Though independent witnesses have not supported, merely on the evidence of PW1 and PW8, the trial judge has convicted both the appellants. The trial judge has failed to appreciate the evidence of PW1 who admitted that there was an inordinate delay in lodging the complaint and reasons for such delay have not been explained.

9. It is submitted that the accused has questioned PW1 regarding issuance of bonus, which was misappropriated by the PW1, in this regard the Co-operative Development Officer has lodged a complaint against PW1. When the accused has demanded for giving arrears of bonus, PW1 instead of paying bonus amount, with a view to take revenge she lodged a false complaint against the accused. On all these grounds, it is sought for allowing this appeal.

10. As against this, the learned High Court Government Pleader Sri.R.Rangaswamy, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts and sought for dismissal of this appeal.

11. Having heard the arguments on both sides and perusal of materials the following points would arise for my consideration:

                  i)        Whether the trial Court has committed an error in convicting the accused for the offence punishable under Section 323 read with 34 of Indian Penal Code and 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities), Act, 1989?

                  ii)       What order?

Regarding Point No.1:

12. I have examined the materials placed before this Court. It is the case of  the prosecution that on 01.08.2013 at about 06.30 p.m. near Milk Produce Women's Co-operative Society Ltd., at Maliyuru village when the complainant was taking the milk with the help of CW2-Nanjamma and at that time accused Nos.1 and 2 came and asked her with regard to the giving of bonus of five years and at that time complainant requested the accused No.1 to come after 5 minutes and at that time accused No.1 questioned with regard to the delay of one month and the complainant told that her children are not well and thereby she is not able to write the document and at that time accused Nos.1 and 2 abused her in filthy language as by taking her caste knowing fully well that she belongs to SC community and humiliated her and insulted her in the public view and accused No.1 slapped on her cheek and also assaulted on her left neck and with an intention to outrage her modesty caught hold her nighty and dragged her and torn her nighty and also threatened the complainant stating that they will kill her if she gives complaint to the police and accordingly after arrival of her husband the complainant had been to the police station and filed a complaint basing upon which the Kirugavalu police registered a case and accordingly, has filed a charge-sheet against the accused for the aforesaid offences.

13. To substantiate the case of the prosecution, 13 witnesses were examined as PW1 to PW13. 9 documents were marked as Exhibits P1 to P9. One material object marked as MO.1. According to the case of the prosecution, PW2 to PW4, PW11 to PW13 are the eyewitness to this incident. All these witnesses have not supported the case of the prosecution and all these witnesses treated as hostile witnesses.

14. The Learned Public Prosecutor has cross- examined them after treating them as hostile witnesses with the permission of the Court. Even during the cross- examination of Public Prosecutor, PW2 to PW4 and PW11 to PW13 have categorically denied the statement said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which are marked as Exhibit P3 to P5 and P9.

15. PW12 and PW13 said to be the attestors to the mahazar witnesses, have not supported the case of the prosecution.

16. PW8-Dr.K.Mahesha, has deposed that he has examined the injured and issued the wound certificate as per Exhibit P6.

17. PW9-M.R. Rajesh, Tahashildar has deposed regarding the issuance of Caste Certificate as per Exhibit P7.

18. PW10 - Obedulla Khan, the police constable, has deposed as to the submission of FIR to the Court.

19. PW5 to PW7 are the police officials who speak about their respective investigation.

20. Now the question is whether the sole interested testimony of PW1 along with the Medical Officer PW8, is sufficient to convict the accused for the alleged commission of offence or not? In this regard, it is necessary to mention here as to the complaint Exhibit P1, filed by PW1. In Exhibit P1, PW1 has stated as under:





21. The alleged incident took place on 01.08.2013 at 06.30 p.m. The complaint came to be filed on 02.08.2013 at 16.30 hours. The FIR Exhibit P8, on the basis of this complaint, case was registered in Crime No. 101/2013 for the offence punishable under Section 323, 354, 504, 506 read with 34 of Indian Penal Code and Section 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989. Exhibit P8 FIR reveals that the FIR reached the Court on 03.08.2013 at 02.05 p.m.

22. PW1-Jayamala has deposed in her evidence that she was working as a Secretary of Milk Produce Women's Co-operative Society Ltd., at Maliyuru Village since 8 years and she belongs to Adi Karnataka Scheduled Caste and she knows the accused for about 20 years and that on 01.04.2013 at about 06.30 p.m. when Nanjamma was taking milk and she was noting the same at that time the accused came to the Diary and asked with regard to the bonus and when she stated that she is unable to write all documents at one time and asked them to come later and at that time accused abused her in filthy language and humiliated her and also slapped on her cheek and caught hold of her nighty, dragged her and torn her nighty, dishonored her and also threatened her of dire consequences. The villagers Lalithamma, Rudrappa and Puttasiddamma who had been to the spot for giving milk separated the scuffle and thereafter she locked the society and went to her house and her husband was not present and he came to the house at about 09.00 p.m. and she told the incident to him and he told that they will go in the morning and thereafter they went to the Kirugavalu police station and filed a complaint on 03.08.2013 and police came and conducted a spot mahzar as per Exhibit P2.

23. PW8 - Dr. Mahesh has deposed regarding the issuance of wound certificate and examination of the accused. The wound certificate is marked as Exhibit P6. The wound certificate reveals that Smt.Jayamala W/o Guruswami went to the hospital with the history of assault on 01.08.2013 at about 06.30 p.m. The doctor has examined this injured on 02.08.2013 and found the injury No.1  -  Tenderness  over  the  left  cheek. injury No.2. Tenderness over the left side of the neck. No external injuries. The doctor has opined that all injuries are simple in nature. In Exhibit P6 the medical officer-PW8 has not mentioned the name of the accused, who has assaulted PW1. Even in the evidence of PW8, he has not whispered anything against this accused.

24. It has come in the evidence of PW1 that, he has not whispered anything as to the delay in filing the complaint. Though the police have registered the case on 02.08.2013, they have not submitted the FIR to the Court at the earliest point of time. Only on the next day of filing the complaint i.e., on 03.08.2013, the Investigating Officer has submitted the First Information Report to the Court at 2.05 p.m. as per Exhibit P8. The FIR reveals that in column No.15, the date and time of dispatch to the Court is shown as 02.08.2013 at 05.00 p.m. The Investigating Officer has not explained anything as to the delay in dispatching the FIR to the Court. If, really the accused has assaulted PW1 as alleged by the prosecution, she could have take treatment by the Medical Officer at the earliest point of time. On that day, she did not go to the hospital. Even on the date of incident, she has not lodged complaint to the police. Absolutely there is no evidence as to the delay in taking treatment by the Medical Officer and also filing complaint against the accused. It is an admitted fact that PW1 being a Secretary has to pay the arrears of bonus to the accused.

25. It is also admitted fact that accused have demanded the arrears of bonus. When the accused have demanded the bonus, only after discussing with her husband and as on after thought, she lodged a complaint after lapse of 2 days from the date of alleged incident, which will create reasonable doubt as to the conduct of PW1. All the material eye-witnesses have not supported the case of the prosecution. The prosecution has not elicited any favourable answers from them to substantiate the case of the prosecution. Even the prosecution has failed to elicit why these material eye- witnesses have not supported the case of the prosecution. In the absence of cogent, corroborative and supporting evidence of eye- witnesses, the sole interested testimony of PW1, which is not corroborated by medical evidence and also for want of proper explanation of delay in filing the complaint, will create doubt about the alleged incident. Under the given set of circumstances, it is not safe to convict the accused on the basis of sole and interested testimony of PW1. Accordingly, the trial Court has not properly appreciated the evidence on record in accordance with law and facts. On re-appreciation of entire evidence on record, I do not find any cogent, convincing, corroborative, trustworthy legal evidence before the Court. Hence, I answer point No.1 in the affirmative.

Regarding Point No.2:

26. For the aforesaid reasons and discussions, I proceed to pass the following:

                  ORDER

                  i)        Appeal is allowed.

                  ii) The judgment of conviction and order on sentence passed by the I Addl. District and Sessions Judge, Mandya in Spl.C.No.64/2013 dated 01.10.2014, is set aside.

                  iii) Accused Nos.1 and 2 are acquitted of the offence under Section 323 read with 34 of Indian Penal Code and Section 3(1)(x) and 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989.

                  iv) The fine amount, if any, deposited by the appellants shall be returned to them in accordance with law.

                  v) Registry is directed to send the copy of this judgment along with Trial Court records to the concerned Court.