IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 CRL.A.No. 1128 of 2003() ---------------------------------- SC.156/2001 of SESSIONS COURT, KASARAGOD .................... APPELLANTS/ACCUSED ----------------------------------- 1. ARUNAKUMAR RAI, S/O.RAGHUNATHA RAI, NAKKUR HOUSE, NETTANIGE VILLAGE. 2. BALACHANDRA RAI, S/O.KUKKAPPA RAI, ANJE HOUSE, NIDAPALLY VILLAGE, PUTTUR TALUK, KARNATAKA STATE. 3. BALAKRISHNA RAI, S/O.KUKKAPPA RAI, ANJE HOUSE, NIDAPALLY VILLAGE, PUTTUR TALUK, KARNATAKA STATE. 4. LAMBODARA RAI, S/O.GUDDAPPA RAI, BAJDA GUTHU HOUSE, NETTANIGE. BY ADV. MR.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE ---------------------------------------------------------- 1. THE DY.SUPERINTENDENT OF POLICE, SPECIAL MOBILE SQUAD, KASARAGODE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1128/2003 ------------------------------ Dated this the 8th day of June, 2009 JUDGMENT This is an appeal preferred against the conviction in S.C.No.156/2001 of the Sessions Judge, Kasaragod. The accused four in number were charge sheeted for the offences under Sections 447, 427,323 and 354 read with Section 34 of the I.P.C and Section 3(1)(xi) of the SC/ST (P.A.)Act, 1989. The court below on a consideration of the evidence found the accused not guilty under the sections other than under Section 323 of the IPC and released them on probation of good conduct directing them to keep the peace and of good behavior for a period of one year. It is against that decision, the accused have come up in appeal. 2. Now the conviction is under Section 323 of the IPC and one may have to restrict the finding to that point. It has to be considered whether the evidence tendered is acceptable to arrive at the guilt of the accused under Section 323 IPC. 3. It is the case of the prosecution that on 6.6.2000 at 2 CRL.A.NO.1128/03 about 10 a.m the accused came together in a jeep with pick-axe, spade etc to form a road through the property of the complainant to the house of A1. PW2 who was in the house at that time obstructed and she was assaulted by the accused by pulling of her hand and tearing her blouse. The court below did not accept the case of criminal trespass, attempt to outrage the modesty as well as the offence under the Atrocities Act, but found the accused guilty under Section 323 of the I.P.C. The cause of dispute, according to the prosecution, is the demolition of a wall which belongs to PW2 and when there was an obstruction made by PW2, she had been assaulted and the crime thus committed. 4. I have perused the scene mahazer in this case. The scene mahazer does not reveal demolition of any portion of the property. Now the evidence of PWs 2 and 7 is to be looked into for the purpose of arriving at a decision. Immediately after the incident, PW2 at 3.30 p.m on 7.6.2000 had given a version before the Head Constable who had been examined in the case as PW3. According to the complainant, the accused came together to demolish the wall and when she was resisted, they abused her by calling her 3 CRL.A.NO.1128/03 caste name as well as prostitute and thereafter they encircled her and all of them had beaten her with their hand. But, when she gave her statement before the doctor immediately after the incident, she would say that the accused had attacked her with sticks resulting in injuries to her. When examined as PW2, she has no case that she had been beaten with any stick or that even she is beaten. She had no case against A2 to A4 at all. What she had stated is that A1 had caught hold of her hand and pulled her and she fell on the ground and thereafter all the accused together had abused her by calling her caste name etc. So the version of PW1 is in three different directions; one is that all the accused had beaten her with their hand, to the doctor it is that they had beaten her with stick and when it comes to the court, her version is that she had been pulled down by A1 and she had given a total go bye to the beating by any other accused in the case. PW7 is the independent witness. She had stated before the court that PW2 had been assaulted and that her blouse was torn. In the cross examination, it is stated by her that the house of the witness is visible from the place of incident. She had deposed that the house of A1 is at a 4 CRL.A.NO.1128/03 walking distance from her house. According to her, when she went to the spot on hearing the cry, she saw CW2 coming from the side of Pulakappara road. According to her, she had seen Cw2 lying on the ground with face upwards. So, at one point of time she may say that she had seen the accused but in another place she would say that she saw the complainant lying on the ground. So, it is in this backdrop the evidence of Pws 2 and 7 requires consideration. PW2 did not have a consistent case at all. The evidence with respect to the criminal trespass, attempt to outrage the modesty etc are totally disbelieved by the court below. It was suggested that her blouse was torn but the court found that the said blouse was produced before the court after some days of the discharge from the hospital. So the court was not all inclined to accept that version. Further in Ext.P1 it is stated that the compound wall has been demolished. But the police did not see any portion of the wall being tampered with anybody. So, the evidence of PWs 2 and 7 with respect to the commission of offence under Section 323 also appears to be contradictory in nature. I can understand a poor lady may go wrong with minute details but one cannot go wrong with the 5 CRL.A.NO.1128/03 details whether she was beaten or she was pulled down. So, this shows her intention to make the case into a grievous one and in that process had uttered versions which are contradictory in nature. Therefore, I feel that it is not safe to rely upon the evidence of PWs 2 and 7 in this case. The accused are entitled to the benefit of doubt and therefore I set aside the conviction passed by the learned Sessions Judge under Section 323 of the IPC also. Thereby I find that the accused are not guilty of the offence alleged and there are to be acquitted. 5. In the result, the criminal appeal is disposed of as follows: 1. The conviction and sentence passed by the Sessions Judge under Section 323 is also set aside. 2. I find that the accused are not guilty of the offences alleged and therefore they are found not guilty and acquitted and therefore set at liberty. M.N. KRISHNAN, JUDGE cl 6 CRL.A.NO.1128/03 7 CRL.A.NO.1128/03