SCST Act cannot be invoked when the abuse has taken place within four walls : Karnataka High Court

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF DECEMBER 2020 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.173 2011 STATE OF KARNATAKA BY WHITEFIELD POLICE STATION … APPELLANT BY SRI. DIWAKAR MADDUR HCGP) CHIRSTOPHER IRELAND S O LATE E.O. IRELAND BRINE IRELAND S O LATE E.O. IRELAND YUZIN IRELAND S O LATE E.O. IRELAND ALL ARE RESIDING AT R AT NO.200 HAPPY VILLA NEAR PRASHANTH LAYOUT WHITEFIELD BENGALURU. ... RESPONDENTS BY SRI. S. ARMUGHAM ADVOCATE FOR R1 SRI. N. JAGADISH ADVOATE FOR R2 NOTICE TO R3 HELD SUFFICIENT VIDE ORDER DATED 27.11.2018) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND OF CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DATED 02.08.2010 PASSED BY THE II ADDL. S.J. AND SPL. JUDGE BENGALURU RURAL 2 DISTRICT BENGALURU IN SPL.C.NO.14 2009 ACQUITTING THE RESPONDENT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323 354 READ WITH SECTION 34 OF IPC AND SECTIONS 3(1)(X) ANDOF SC STACT 1989. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.12.2020 THIS DAY THE COURT PRONOUNCED THE FOLLOWING: JUDGMENT This appeal is filed by the State challenging the judgment and order of acquittal dated 02.08.2010 passed Spl.C.No.14 2009 on the file of II Additional Sessions Judge and Special Judge Bengaluru Rural District Bengaluru. The parties are referred to as the complainant and accused Nos.1 to 3 respectively as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court. Heard the learned High Court Government Pleader appearing for the appellant and the learned counsel for respondent No.2. The factual matrix of the case is that on 31.08.2008 at about 8.15. p.m. when the complainant was in her house which situates near Prashanth Layout Whitefield Bengaluru in furtherance of their common intention accused Nos.1 to 3 assaulted her by their hands and also caused bite injuries voluntarily causing simple hurt and the accused persons not being the members of the Scheduled Castes and Scheduled Tribes torn the clothes of the complainant a member of the Scheduled Caste and pushed and pulled her and outraged her modesty and intentionally insulted her referring to her caste humiliating her in public view and thereby accused Nos.1 to 3 committed the offence punishable under Sections 323 and 354 read with Section 34 of I.P.C. and Sections 3(1)(x) and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes Act 1989and 3(1)(xi) of the SCST Act 3. What order Points No.1 to 3: 11. Before considering the oral and other documentary evidence this Court would like to consider the complaint Ex.P.1 under which the law was set in motion. On perusal of the complaint it is alleged that the accused persons came to the house of the victim abused taking her caste name and torn her clothes by dragging her and outraged her modesty. In so far as the motive to the incident is concerned it is stated that a Civil Suit in O.S.No.1084 2004 is pending before the II Additional Civil Judge in which an order of injunction has been granted. Taking advantage of her husband and the children were not there in the house the accused persons trespassed into the house assaulted and caused bite injuries. Hence the action was sought. The complaint was received on 01.09.2008 at 23.10 hours and thereafter the case has been registered. The investigation was conducted and the charge sheet has been filed. The prosecution in order to prove its case examined P.W.1 to P.W.10. P.W.1 who is the victim deposes with regard to the relationship between the parties and also the civil suit pending before the Court. In her evidence she says that when her husband was not there in the house the accused persons came and abused her as “K ¨Á¸ÀÖqïð ªÀÄÄAqÉ J¸ï ¹ J¸ï n ªÀÄÄAqÉ UÉmï Omï ªÀÄÄAqÉ” assaulted her with hands on her abdomen and when they dragged her the blouse torn. Accused Nos.1 and 2 caused bite injuries on her shoulder and also fisted on her abdomen thereafter they ran away from the spot. When her husband came at around 9.30 p.m. she revealed the incident to him. On the same day at about 10.00 p.m. they went to Whitefield Police station and gave oral complaint. She identified her signature on Ex.P1 and Police came and seized the blouse by drawing mahazar in terms of Ex.P2. P.W.1 says that she was taken to Bowring Hospital on 6th day. Though the Police came to her house on the next day to take her to hospital and as she was tired she did not accompany them. She was subjected to cross examination. In the cross examination she admits that she did not make any phone call to her husband so also to P.W.3 since she was not having any telephone connection in the house and also mobile. It is suggested that number of complaints were given against her and her husband and the said suggestion was denied. P.W.1 says that accused persons caused bite injuries and also says that they abused her as ‘bitch’ in English. 12. P.W.2 is the husband of the victim and he was not present at the time of incident. He says that he came to know about the incident only when his wife revealed the same to him at 9.15 p.m. after coming to house. After 3 to 4 days of the incident he took her to Bowring Hospital for treatment. They went to Whitefield police station to lodge complaint on the same day. In the cross examination he admits that there was an appeal in R.A.No.99 2004 05 pending before the Assistant Commissioner. He further admits that on the same day they 10 went to lodge complaint but the Investigating Officer did not record his statement. It is suggested that they caused life threat to the accused persons but he denies the said suggestion and he admits that false complaint has been lodged by the first accused against them. He identifies the complaint and its acknowledgment as Exs.D1 and D2. It is suggested that he requested the accused persons to join along with him to file a case and when they refused to do so a false case has been lodged against them and the same is denied. He also admits that he has not given any statement before the Police that he witnessed the incident in terms of Ex.D3. 13. P.W.3 is the son of P.W.1. In his evidence he says that he came to know about the said incident through his mother who called and informed him. Hence he himself and his wife went to the house of P.W.1. In the cross examination he says that his mother was having Reliance Company mobile through which she called him and informed about the incident. The suggestion was made to this witness that accused No.1 gave the complaint against his mother and father and witness denies the same. He also admits that he has not given any statement before the Police in terms of Ex.D4. 14. P.W.4 A.S.I. Whitefield Police Station registered the case on 01.09.2008 and issued FIR in terms of Ex.P3. In the cross examination he admits the incident was taken place on 31.08.2008 and complaint was given on the next day. He did not conduct any investigation. 15. P.W.5 P.S.I. Whitefield Police Station conducted the further investigation and spot mahazar in terms of Ex.P2 and seized M.O.1. In the cross examination it is suggested that he did not draw any mahazar and the same is denied. It is also suggested that accused Nos.1 and 2 have lodged the complaint and no action was taken. But he claims that the action was taken. It is suggested that accused No.2 was threatened by him and the same is denied. He admits that when he went to the spot he found P.W.1 was tired and apart from that nothing else has been noticed. 16. P.W.6 the mahazar witness claims that Police have conducted the mahazar on 02.09.2008 at about 12.45 p.m. and the Police have seized the blouse of the victim. He identifies his signature in the mahazar as per Ex.P2(c). In the cross examination it is suggested that he went to the spot on 01.09.2008 along with A.S.I. Prem Kumar and the same is denied. He admits that he has not visited the spot on 17. P.W.7 A.C.P. in his evidence says that he took up the further investigation of the case and the injured produced the wound certificate on 09.09.2008. He says that he requested the Tahasildar to issue caste certificates of accused persons and collected the same as per Ex.P5. In the cross examination he admits that he did not record the statement of P.W.1 and so also P.W.2 and P.W.3. He also did not enquire the doctor and not obtained the wound certificate. 18. P.W.8 the Deputy Superintendent of Police in his evidence says that he took up further investigation of the case. After obtaining the caste certificate of P.W.1 in terms of Ex.P6 he filed the charge sheet. In the cross examination he admits that he deputed the staff to apprehend the accused persons but they were not found and hence filed the charge sheet showing the accused persons as absconded. 19. P.W.9 Tahasildar in his evidence says that he seized the Exs.P5 and P6 caste certificates and identifies his signatures on Ex.P5 and Ex.P6. In the cross examination he admits that based on the report of the Revenue Inspector and Village Accountant he gave the report in terms of Ex.P5 and he did not visit the spot. Except Ex.P5 he is not having any other material in respect of the said report. 20. P.W.10 the doctor who treated the injured on 06.09.2008 says that P.W.1 told that on 31.08.2008 the accused persons assaulted her. P.W.1 complains about the pain in her abdomen right hand and found simple injuries. He gave the wound certificate in terms of Ex.P4. It is also his evidence that if any person assaulted with hand and fisted the injuries mentioned in Ex.P4 could be caused. In the cross examination it is elicited that he came to know about the injuries only when P.W.1 told about the assault. He came to know about the pain only on the say of P.W.1. P.W.1 had informed him that she was having pain in her right hand and in the abdomen but not stated anything other than such pain. P.W.1 was also subjected to ultrasound examination where no injuries were found. P.W.10 further says that even after 5 to 6 days also the injuries could be seen. He cannot tell as to whether those injuries mentioned in Ex.P4 are self inflicted or caused by others and also cannot tell in which weapon those injuries were caused. He also admits that unless the person speaks with regard to the injuries which are mentioned in Ex.P4 the same cannot be identified. 21. Having perused the oral and documentary evidence available on record the prosecution mainly relied upon the evidence of P.W.1 and the doctor. In so far as the injuries is concerned this Court has to examine as to whether the evidence of P.W.1 inspire the confidence of the Court. Admittedly though the prosecution cited P.W.2 and P.W.3 as eye witnesses they categorically admits that they have not given the statements in terms of Exs.D3 and D4. It is also evident from the evidence of P.Ws.1 2 and 3 that P.Ws.2 and 3 were not present at the time of the incident. Hence with regard to the incident is concerned the only evidence on which the Court can rely upon is P.W.1. It is the case of the complainant that the accused persons also abused the complainant taking her caste name. On perusal of Ex.P1 the complaint the complainant has not mentioned the specific words used for abusing except stating that the accused persons abused her by taking her caste name as SC ST. But in her evidence before the Court improvement has been made by her stating that the accused persons abused her as “K ¨Á¸ÀÖqïð ªÀÄÄAqÉ J¸ï ¹ J¸ï n ªÀÄÄAqÉ UÉmï Omï ªÀÄÄAqÉ”. 22. First of all the Court has to examine whether the accused persons with an intention to humiliate the complainant uttered those words in order to provoke her to breach the peace. P.W.1 claims that the accused persons abused her by taking her caste name as SC ST except stating that nothing is averred in the complaint and also in her oral evidence. It is important to note that the incident was taken place within four walls of the house and not in the public view. The Apex Court in the recent judgment also held that if the incident is taken place within four walls and no public were present the provisions of the SCST Act cannot be invoked. It is also important to note that the prosecution evidence clearly discloses that there was a civil dispute between the parties and in the complaint also it is mentioned that the injunction order was granted by the Court which has also not been disputed by the accused. It is further important to note that in the cross examination of P.W.1 and P.W.2 both of them says that they went to police station on the same day night but on perusal of the complaint it is lodged on the next day that too at 23.10 hours and there is no explanation with regard to the delay is concerned. P.W.3 who is the son of the victim also claims that P.W.1 and P.W.2 went to the police station on the very same day night. P.W.1 and P.W.2 says that they went to police station on the same day but documentary evidence is contrary to the oral evidence. It is also important to note that the injured was taken to hospital on 06.09.2009 and incident took place on 31.08.2008. But P.W.1 claims that she was tired and hence she did not go to hospital on the day of incident. It is also important to note the allegation made against the accused persons is that they assaulted the victim by their hands. Though the Investigating Officer says that when he visited the spot on the next day he noticed that the victim was tired he did not notice anything else other than that. There is no explanation with regard to belatedly going to the hospital after 6 days of the incident. It is also important to note that in the cross examination of P.W.1 it is elicited that she did not inform either her husband or son over the phone. But P.W.3 who is her son claims that his mother had called and informed him over the phone and she was having Reliance Company mobile. There is contradictions in the evidence of P.Ws.1 and 3 with regard to informing the incident to P.W.3 since P.W.1 says no telephone facility in the house and not having mobile. 24. P.W.2 also admits that when he went home he found P.W.1 sitting. It is the evidence of P.Ws.1 to 3 that the accused persons caused bite injuries on the victim. If really the accused persons had caused the bite injuries those injuries would have been found when P.W.1 was subjected to examination by the doctor P.W.10. In the evidence of P.W.10 it is elicited that he came to know about pain when the complainant disclosed it. P.W.10 categorically admits that unless the injured says about the injuries which have been mentioned in Ex.P4 the same cannot be assessed since those injuries are not visible. It is also important to note that he cannot tell as to whether those injuries are self inflicted or caused by other persons. He cannot also say as to whether those injuries were caused by any weapon. It is the specific evidence that even after lapse of 5 to 6 days of the incident if any injuries are caused they are visible. 25. Having taken note of the evidence of P.W.10 with regard to the very incident is concerned nothing is on record. First of all P.W.1 did not go to the hospital immediately after the incident though she claims that they went to police station on the same day. No case has been registered. It is clear from the perusal of the complaint that the complaint was given on the next day of the incident that too after 24 hours of the incident. It is also important to note that no doubt M.O.1 is seized and the same is torn blouse. In order to analyze whether these accused persons have torn the said blouse there is no evidence except the evidence of the interested witness P.W.1. If really P.W.1 had sustained injuries she ought to have visited the hospital and took treatment immediately after the incident. Only the explanation has given by P.W.1 and P.W.9 that she was tired and hence she did not accompany the Police and that on the next day also the Police came to take her to hospital but she did not accompany the Police. 26. On perusal of Ex.P4 the wound certificate it does not disclose who took her to hospital but only the history of assault by accused persons have been mentioned. P.W.1 had been to hospital on 06.09.2008 at 3.30 p.m. I have already pointed out that the injuries are mentioned in Ex.P4 only on the basis of the statement made by P.W.1. Having taken note of all these discrepancies in the evidence of P.W.1 to P.W.3 they are contrary to each other. In so far as the abuse is concerned there is no mention in the complaint and also that there is no medical evidence to support the claim of the complainant that she was subjected to assault. However in the evidence of P.W.1 she exaggerates and deposed before the Court that she was subjected to surgery to abdomen and showed the same standing in the witness box by pushing her saree to little extent showing surgery marks. But there is no any evidence before the Court that she was subjected to surgery and doctor P.W.10 says nothing except P.W.1 complained about the injuries. It is also not the case of the prosecution that she was subjected to surgery on account of the assault made by the accused persons. 27. Having taken note of all these materials on record and contradictions it is the admitted fact that civil suit is pending between the parties and also complaints are given against each other and admits in the cross examination as Ex.D1 and Ex.D2. It is important to note that there is no dispute with relationship between the parties. P.W.1 categorically says that the accused persons are brothers of her husband and that accused No.2 is the son of her brother in law. 28. Taking into consideration of all these material contradictions and there is no any independent witness with regard to the incident in order to convict the accused there must be an independent evidence before the Court and the prosecution has to prove the case with regard to the incident as well as injuries. The medical evidence of P.W.10 does not corroborate the evidence of P.W.1 and that though P.W.1 claims that she was subjected to assault she did not take the treatment immediately. It is only afterthought the complaint was lodged after 24 hours of the alleged incident. P.W.1 and P.W.2 though claim that on the very same day they went and informed about the incident in the police station there is no material. But it is evident that the complaint was given on the next day on 01.09.2008 at late hours i.e. at 23.10 hours. 29. Having perused and discussed in detail the oral and documentary evidence placed on record though it is contended by the State that P.W.2 and P.W.3 have corroborated the evidence of P.W.1 who is the sole witness and her evidence is sufficient the same does not inspire the confidence of the Court to convict the accused only based upon the evidence of P.W.1. This Court has already pointed out that the evidence of the doctor also not corroborates the evidence of P.W.1 and that P.Ws.2 and 3 were not at the spot on the date of the incident. There are contradictions in the evidence of P.Ws.1 2 and 3 and also that with regard to reporting the incident to her husband and son their evidence is contradictory. The evidence of P.W.1 is also not consistent as she has deposed in exaggeration. The fact that the civil dispute is pending between the parties and an order of injunction was granted is not in dispute. This Court already pointed out that the complaint given by the complainant is very short and nothing is attributed in the complaint about abusing the complainant by uttering specific words by taking her caste name and it is only the improvement in the oral evidence of P.W.1. Hence even though the learned High Court Government Pleader appearing for the State would contend that the evidence of sole witness P.W.1 is sufficient to convict the accused I do not find any such material to convict the accused based on the evidence of P.W.1 alone. If the medical evidence corroborates the evidence of P.W.1 then there would have been 22 force in the contention of the learned High Court Government Pleader appearing for the State. Hence it is not a fit case to reverse the findings of the Trial Court. The Trial Court in detail discussed and has rightly come to the conclusion that the prosecution has not made out the case against the accused. In view of the discussion made above I pass the following: The appeal is dismissed. Sd 

Summary: An independent evidence must exist, apart from the oral statements of the victim, in order to convict an accused. The High Court bench consisting of J. H P Sandesh, adjudicated on the matter of State of Karnataka by Whitefield Police Station Bengaluru v. Christopher Ireland &amp; Ors. [Criminal Appeal No. 173/2011], wherein the accused were charged under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The complainant was assaulted by the accused who belonged to Scheduled Caste and Scheduled Tribe. They tore the clothes of the complainant, pushed and pulled her and outraged her modesty and intentionally insulter her referring to her caste and humiliating her publicly. The accused together hence committed various offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused claimed trial before the Trial Court and did not plead guilty. The Trial Judge acquitted the accused and hence, the present appeal was filed by the aggrieved appellant. The Prosecution argued that the Trial Court Judge had committed an error as he had failed to consider the evidence put forth. The accused were the family members of the victim’s husband and they had intentionally trespassed into the house of the complainant and abused her. The counsel appearing for the respondent argued that the Trial judge appreciated the contradictions in the cross examinations and realised the discrepancies between the medical evidence and the case of the prosecution, and hence, had rightly acquitted the accused.