Partly allowed

State of Karnataka v. Sri Seenappa

Karnataka HC29 Nov 2023CRL.A/540/2017

Case brief

AI extract

What is this about?

State appeal against acquittal for assault and SC/ST Act offences. High Court reversed acquittal for Section 323 and modified acquittal for Section 326 to Section 325 IPC, convicting accused for voluntarily causing hurt and grievous hurt. Acquittal for other IPC and SC/ST Act offences confirmed.

What did the court decide?

The acquittal of accused Nos.1-4 for Section 323 IPC was set aside and they were convicted; their acquittal for Section 326 IPC was modified to conviction under Section 325 IPC. They were sentenced to

State of Karnataka Vs Sri Seenappa — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC:43497-DB CRL.A No. 540 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 540 OF 2017 (A)

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BETWEEN:

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State of Karnataka by Huliyar Police Station Chikkanayakanahalli Taluk Tumkur District

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Represented by State Public Prosecutor High Court Building Bengaluru – 560 001.

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…Appellant

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(By Sri. P. Thejesh, High Court Government Pleader)

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AND:

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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Sri Seenappa S/o Kariyappa Aged about 39 years

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Sri Nataraju S/o Hanumanthaiah Aged about 41 years

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Sri Ramanna @ Venkataramaiah Aged about 50 years

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Srirangappa @ Rangappa S/o Sanna Rangaiah Aged about 39 years

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All are residing at Guruvapura Huliyar Hobli Tumkur district – 572 101

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…Respondents

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(By Sri. Vinaya Keerthy M., Advocate for R1 to R4 )

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This Criminal Appeal filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to appeal against the judgment and order of acquittal dated 19.09.2016 passed by the III Additional District and Sessions Judge, Tumkur in Spl.C.No.45/2013 acquitting the respondents-accused Nos.1 to 4 of the offences punishable under Sections 323, 324, 326, 504, 506 read with Section 34 of IPC and Sections 3(1)(x), 3(2)(v) of SC/ST (POA) act.

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This Criminal Appeal, coming on for 'Further Arguments', through Physical Hearing/Video Conferencing, this day, Dr. H.B.PRABHAKARA SASTRY J., delivered the following:

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JUDGMENT

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The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as ‘the Cr.P.C.’), challenging the judgment of acquittal dated 19.09.2016, passed by the learned III Additional District and Sessions Judge at Tumakuru (hereinafter for brevity referred to as

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the ‘Special Court’) in Special Case No.45 of 2013, acquitting the accused of the offences punishable under Sections 323, 324, 326, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as ‘the IPC’) and under Sections 3(1)(x), 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (hereinafter for brevity referred to as SC/ST (POA) Act).

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The summary of the case of the prosecution as stated in the charge-sheet is that, on the date 05.12.2012 at about 8.00 p.m. while the husband of the complainant, by name, Thimmaiah (CW-2) was in front of his house and was discussing about building a compound wall around his house, the respondents who were the accused and were four in numbers went there and picked up a quarrel with CW-2, warned him that, incase, if he erects a compound around his house, which causes inconvenience for the movement of the vehicles coming to their Milk Dairy, CW2 may have to face serious consequences, assaulted him with their hands and also with two sticks inflicting injuries upon him. The complainant, Smt.Sharadamma (CW-1) who was an eye-witness to the incident joined by

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the other persons who rushed to the spot picked the injured to Chikkanayakanahalli General Hospital and after initial treatment and at the advice of the doctor there, they shifted the injured Thimmaiah to Government Hospital at Tumakuru where he was treated as an inpatient. Stating that herself and her husband were belonging to Bhovi Community, which is a Scheduled Caste and that by their act, the accused Nos.1 to 4 attempted to commit the murder of her husband, the complainant instituted a complaint with the complainant police on 05.12.2012, which came to be registered in the complainant police station in Crime No.123/2012 for the offences punishable under Sections 323, 324, 504, 506 r/w Section 34 of IPC and under Section 3(1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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After investigation, the complainant police

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station filed a charge-sheet against the accused for the offences punishable under Sections 323, 324, 326, 504,

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506 r/w Section 34 of IPC and under Section 3(1) (x) of the SC/ST Act.

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After perusing the materials placed before it and on hearing both side, initially, the Special Court framed the charges against the accused for the offences punishable under Sections 323, 326, 504 r/w 34 of IPC and under Section 3 Cl.(1) sub cl.(x) of SC/ST (POA) Act r/w 34 of IPC. Subsequently, through an additional charge, Section 3(2)(v) of SC/ST Act r/w Section 34 of IPC was also framed against the accused. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all nine (9) witnesses as PW1 to PW-9, got produced and marked documents from Exs.P1 to P6(a) and got produced Material Objects, MO-1 and MO-2. From the accused’s side, neither any witness was examined nor any documents were got marked as exhibits.

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After hearing both side, the Special Court, by its judgment dated 19.09.2016, in Special Case No.45/2013 acquitted the accused of the offences punishable under Sections 323, 324, 326, 504, 506 r/w Section 34 of IPC and Section 3(1)(x) and 3(2)(v) of SC/ST Act r/w Section 34 of IPC. Challenging the same, the appellant-State has preferred the present appeal.

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The appellant–State is represented by the learned High Court Government Pleader and respondents/ accused are represented by their learned counsel. The learned High Court Government Pleader and the learned counsel for the respondents (accused) are physically appearing in the Court.

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The Special Court records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the

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memorandum of appeal, impugned judgment and the Special Court records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the

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Special Court.

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The learned High Court Government Pleader appearing for the appellant-State in his argument submitted that all the prosecution witnesses except two witnesses concerned to the alleged scene of offence panchanama have supported the case of the prosecution. The material witnesses who are PW-1, PW-2 and PW-3 have fully supported the case of the prosecution. Their evidence is trustworthy, believable and has come in consonance with each other. Further, the complainant both in her complaint and in her evidence has clearly explained the delay for lodging the complaint. Admittedly, when the son and daughter-in-law of the complainant were residing separately, it was only the complainant being the wife of the injured was required to take care of her husband during the period of his

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hospitalisation. As such, the complainant’s evidence that since there was none other to take care of her husband while he was in hospital, she had to attend to him, as such, there was a delay in lodging the complaint is fully convincing and delay has been properly explained. However, the Trial Court opining that there is an inordinate delay in lodging the complaint has disbelieved the case of the prosecution.

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The learned HCGP further contended that the fact that PW-1 and PW-2 are belonging to Scheduled Caste is not denied from the accused side. Since the accused have assaulted and insulted PW-2 in front of his house, which was in public view, the offence punishable under the SC/ST Act for which the accused are charged also have been proved by the prosecution. He further submitted that the Special Court without appreciating the evidence placed before it in its proper perspective has itself presumed untenable doubts resulting in acquittal of the accused under the impugned judgment. As such, the same warrants interference at the hands of this Court.

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Per contra, the learned counsel for respondent

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Nos.1 to 4 in his argument though did not deny that the complainant and her husband who were examined as PW1 and PW-2 respectively are belonging to Scheduled Caste. However, vehemently submitted that nowhere PW-1 or PW-2 have stated that, knowing that they belong to Scheduled Caste and with an intention to insult them, the accused have committed the alleged offence and insulted them in a public view. As such, merely because PW-1 and PW-2 were said to be belonging to Scheduled Caste, by that itself, it cannot be presumed that the offence punishable under Section 3(1)(x) of the SC/ST Act has been proved. Thus, the Trial Court was justified in holding that the prosecution has not proved the guilt against the accused for the alleged offences alleged under the SC/ST Act.

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The learned counsel for the respondents/accused further submitted that there is an in-ordinate delay in lodging the complaint, which has not been convincingly explained

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by the prosecution, more particularly, by the complainant. The contention of the complainant that she was taking care of her husband in the hospital is not convincing. He further submitted that in the evidence of prosecution witnesses, there is a disparity with respect to the alleged date of filing of the complaint. When the complaint at Ex.P1 shows it as the same has been filed on 13.12.2012, whereas, the evidence of some of the prosecution witnesses including PW-1 says that the complaint was filed on 06.12.2012, in such an event, if the complaint is filed on 06.12.2012, then it was for the prosecution to explain as to the fate of the alleged complaint dated 06.12.2012. In the absence of any explanation, in that regard from the prosecution, the very case of prosecution becomes highly doubtful and unsafe to believe.

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With respect to the alleged incident also, the learned counsel for the respondents submitted that there are discrepancies in the evidence of PW-1 and PW-2 with respect to the occurrence of the alleged incident.

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Admittedly, when there were several houses as neighbours to the place of incident, none of them have been examined

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by the investigating officer. This, prima-facie creates a doubt in the case of prosecution. He also submitted that the alleged incident is created and imagined by PW-1 and PW-2 according to their wish. He also submitted that the alleged seizure of two sticks at MOs-1 and 2 is highly doubtful, which has probably been appreciated by the Special Court. Finally, stating that the injuries said to have been sustained by PW-2 has not been shown to have been caused by the accused since PW-4, the doctor in his crossexamination has stated that those injuries can be caused at the fall of the injured on a hard substance, the learned counsel submitted that the prosecution case has further weakened on its own leg, as such, the impugned judgment of acquittal does not warrant any interference at the hands of this Court.

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After hearing the learned counsels from both

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side, the points that arise for our consideration in this appeal are:

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(i) Whether the prosecution has proved beyond reasonable doubt that on the date, 05.12.2012 at about 8.00 p.m., in front of the house of PW-2 in Guruvapura Village within the limits of complainant police station while PW-1 (CW-1)/ Smt.Sharadamma and PW-2 (CW-2)/ Thimmaiah were sitting in front of their house and talking about putting up of a compound wall in front of their house, the accused Nos.1 to 4, approaching them, in furtherance of their common intention of warning and causing grievous injuries to Thimmaiah abused PW-2 Thimmaiah in filthy language provoking him to cause the breach of public peace and thereby have committed an offence punishable under Section 504 r/w Section 34 of IPC?

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(ii)Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention after approaching PW-1 and PW-2 threatened them of dire consequences,

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incase, if PW-2 proceeds in execution of his idea of putting up of a compound wall in front of his house and thereby have committed an offence punishable under Section 506 r/w Section 34 of IPC?

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(iii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention after approaching PW-1 and PW-2, voluntarily assaulted PW-2 (CW-2) Thimmaiah with their hands causing hurt to him and thereby have committed an offence punishable under Section 323 r/w Section 34 of IPC?

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(iv) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention after approaching PW-1 and PW-2, voluntarily assaulted PW-2 (CW-2) Thimmaiah with sticks on his left leg knee and has caused injuries to PW-2 (CW-2) Thimmaiah and thereby have committed an offence punishable under Section 324 r/w Section 34 of IPC?

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(v) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention after approaching PW-1 and PW-2, voluntarily assaulted PW-2 (CW-2) Thimmaiah with two sticks and in a dangerous manner resulting in PW-2 (CW-2) Thimmaiah sustaining grievous injuries and thereby have committed an offence punishable under Section 326 r/w Section 34 of IPC?

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(vi) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their common intention after approaching PW-1 and PW-2, abused PW-2 (CW-2) Thimmaiah by taking the name of his caste and insulted him in front of his house, which was in public view after knowing that the said Thimmaiah and his wife were belonging to Scheduled Caste and thereby have committed an offence punishable under Section 3(1)(x) of SC/ST Act?

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(vii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at Point No.1 above, the accused Nos.1 to 4 in furtherance of their

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common intention after approaching PW-1 and PW-2, having committed an offence punishable under Section 326 of IPC against PW-2 knowing that he was belonging to Scheduled Caste, thereby are punishable under Section 3(2)(v) of SC/ST Act?

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Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offences punishable under Sections 323, 324, 326, 504, 506 r/w 34 of IPC and Section 3(1)(x) and 3(2)(v) of SC/ST Act r/w 34 of IPC. Therefore, the accused have primarily the double benefit. Firstly, the presumption under law that, unless their guilt is proved, the accused have to be treated as innocent persons in the alleged crime. Secondly, the accused have already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -Vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

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(b) In the case of Sudershan Kumar -Vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph No.31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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(c) In the case of Jafarudheen and others -Vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph No.25 of its Judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be

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relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti Vs. State of Haryana and others reported in AIR 2023 SUPREME COURT 1199.

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.

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From a perusal of the evidence of PWs-1 to 9, the undisputed fact remains that PW-1 (CW-1) Smt.Sharadamma is the wife of PW-2 (CW-2) Thimmaiah. PW-1 and PW-2 as husband and wife were residing

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together in the village, Guruvapura within

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Chikkanayakanahalli Taluk. The accused Nos.1 to 4 who are the respondent Nos.1 to 4 herein are also the residents of the very same village and are known to the family of PW-1 and PW-2. The evidence to this effect which has come in the evidence of PW-1, PW-2 and PW-3 have remained undenied and undisputed. Further, the evidence of PW-1 that among the four accused, the accused No.1 was the Secretary, accused No.2 was the Director and accused No.3 was the Milk Examiner in a Milk Procuring Centre in their village, which, generally they call as the “Local Dairy” has remained undenied and undisputed. It is in the light of these undenied and undisputed facts, the case of the prosecution with respect to the alleged incident is required to be analysed.

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The very first contention of the respondents, which was the main contention of them even in the Special Court also was about the alleged delay in lodging the complaint, which makes the case of the prosecution about

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the incident highly suspicious and unbelievable. It is PW1, PW-2 and PW-3 who have mainly spoken about the incident in their evidence. Among them, PW-1 has spoken about she lodging a complaint with respect to the incident. However, a reference about the lodging of the complaint about the incident can be seen even in the evidence of PW-2 and PW-3 also. About the alleged incident of accused Nos.1 to 4 approaching PW-1 and PW-2 and assaulting them, more particularly, PW-2 (CW-2) Thimmaiah has been attempted to be established by the prosecution through the evidence of PW-1, PW-2 and PW-3 (CW-3) Manjunatha.

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PW-1 and PW-2 in their examination-in-chief have stated that on the evening of 05.12.2012 at about 8 O’Clock both of them were sitting in their house and talking about erecting a compound wall near their house, it was at that time, all the accused approaching them in that place, initiated quarrel with them stating that they would see how they are going to put up the compound wall and

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dragged PW-2 and started assaulting him with their hands and sticks.

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PW-1 has further stated that in the process, the accused abused her husband (CW-2) in filthy language as “fuck your mother” (�ನ��ಾ��ಾಡ , �ನ� ಅಮ��ಾ�ಡ). She also stated that in the process of assaulting her husband, accused Nos.1 and 2 assaulted her husband (CW-2) with sticks; accused Nos.3 and 4 assaulted him with their hands. Since CW-3 who is their son-in-law came to their rescue, the accused questioning him as to who is he to intervene also assaulted him.

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PW-1 further stated that due to the assault by the accused, her husband (CW-2) sustained bleeding injuries. He was shifted to Chikkanayakanahalli Hospital. From there, for higher treatment, since they were advised to take him to the hospital at Tumakuru, he was shifted in the same Ambulance to Tumakuru where he was treated in Government Hospital. PW-1 has further stated that about the alleged incident, she has lodged a complaint,

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which she has identified at Ex.P1. She stated that during the stay of her husband in the hospital, since none were there to take care of him, there was delay in she lodging the complaint. Further stating the police after visiting the place of incident have seized two sticks from the place under a panchanama. The witness has identified the said scene of panchanama at Ex.P2 and identified two sticks at MO-1 and MO-2 respectively.

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This witness was subjected to a detailed crossexamination wherein she adhered to her original version. However, she has given the description about the existence of few more houses as neighbours to her house in the village. She gave the details that accused Nos.1 to 3 were running a Dairy, which was a milk collection centre in the village and for collection and transportation of the milk, the vehicles would visit the said collection centre (Dairy), which passes through in front of her house. She denied the suggestion that her husband though was a drunkard but was creating nuisance in the village and there were few complaints against him in that regard.

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PW-2 (CW-2) has further stated that the

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accused after approaching him warned him that he shall not put up compound near his house since it causes inconvenience for the movement of the vehicles coming to their Dairy. Since he told them that he is erecting a compound within his premises, the accused Nos.1 and 2 dragging him outside, started assaulting him, in which process, accused No.1 assaulted him on his right leg below the knee with a stick. Similarly, accused No.2 also assaulted him with another stick on his left leg below the knee. Accused Nos.3 and 4 also assaulted him with their hands on the different parts of his body. He has stated that the accused warned him of taking away his life, incase if he lodges any complaint with the police. It was at that time, his wife and CW-3 (Manjunatha) rushed there and rescued him. The witness further stated that in the process, accused Nos.1 to 4 assaulted his wife also stating that in the incident due to the assault by the accused, his leg was fractured. The witness added that he was shifted

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to Chikkanayakanahalli Government Hospital in an

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Ambulance and at the advice of the doctor there, he was taken to District Hospital at Tumakuru, where he took treatment as an inpatient. The witness further stated that while he was in hospital, his wife (CW-1) went to the police station and lodged a complaint. The police had visited the hospital on 14.12.2012 and had recorded his statement. The witness identified the sticks at MO-1 and MO-2 in the Court.

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In his cross-examination, from the accused side, PW2 adhered to his original version. He denied the suggestion that he is addicted to liquor. However, he admitted that his daughter-in-law had lodged a complaint against him, in which connection, the police had summoned him to the police station and enquired. He denied the suggestion that he was encroaching a public road and attempted to erect the compound. This witness also admitted that there were neighbouring house near his house including the house of his son and daughter-in-law. He also stated that when the incident was going on, his son and daughter-in-law had

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rushed to his rescue, however, they too were assaulted. In his cross-examination, the witness has admitted a suggestion that a detailed complaint was given by his wife with respect to the incident with the complainant police on 06.12.2012. However, he denies that on the very same day, the police had recorded his statement also. He also denied a suggestion that by his own fall on a hard surface, he had sustained injuries upon him.

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PW-3 (CW-3) Manjunatha who stated that PW-1 (CW-1) and PW-2 (CW-2) are his relatives in the parlance of Uncle and Aunt has stated that he had been to their house on 05.12.2012 at about 8.00 p.m. and at that time, PW-2 was screaming and accused Nos.1 and 2 were assaulting him with sticks, when himself joined by PW-1 rushed to his rescue, the accused questioned him as to why he is intervening and supporting PW-2. The accused also abused him as son of Scheduled Caste “vadda nanna magane” (ವಡ� ನನ� ಮಗ�ೆ.) The witness stated since the accused came to quarrel with him, he left the place. Next

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day, he came to know about PW-2 having been admitted to Government Hospital at Tumakuru and that he helped him in getting treatment to him in the said hospital. The witness has identified the sticks at MO-1 and MO-2 in the Court.

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In his cross-examination, the witness has stated that by the time he visited the spot, the quarrel had already begun. However, he did not rush to the police station to give a complaint in that regard. He further stated that he had been to the police station on 06.12.2012 along with PW-1. The police received the complaint given by PW-1 at about 6.30 to 7.00 p.m. He expressed his ignorance that after enquiry, the police came to an opinion that it was a frivolous complaint. The denial suggestion made in his cross-examination from the accused side was not admitted

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as true by the witness.

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From the above evidence of PW-1, PW-2 and PW-3, it can be seen that though at one place, PW-1 has stated that there was some delay in lodging the complaint

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about the incident by her with the complainant police and has attempted to explain the delay, however, in the crossexamination of the very same witness including in the cross-examination of PW-2 and PW-3, some suggestions were made from the accused side showing that the complaint with respect to the incident was also shown to have been lodged on 06.12.2012 itself. It is considering the evidence that has come out regarding the lodging of the complaint and including the suggestions made to PWs1 to 3 in their cross-examination and the response of those witnesses to the suggestions made, the alleged delay, if any, in lodging the complaint is required to be looked into.

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According to the prosecution, the date of the commission of the offence is 05.12.2012 at about 8.00 p.m. According to the prosecution, the date of lodging the complaint is 13.12.2012 at about 11.10 a.m. PW-1, the complainant in her cross-examination at page No.5 has stated that she lodged the complaint on 06.12.2012. On

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that afternoon, she had been to the police station to lodge the complaint. Though she had in her cross-examination stated that on 13.12.2012, CW-4 had taken her to the complainant police station, however, merely because she is said to have been taken to police station on 13.12.2012, by that itself, it cannot be concluded that the complaint was lodged on 13.12.2012 only.

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PW-2, the alleged injured in the incident and also the husband of PW-1, in his cross-examination at page No.3 has admitted a suggestion as true that on 06.12.2012, his wife, i.e., PW-1 lodged a detailed complaint with complainant police station. It was also suggested to PW-2 in his cross-examination, in the very same page, that the police visited the hospital on the date, i.e., 06.12.2012. Thus, by making these suggestions to PW-2, the accused has taken a stand that a week before the alleged date of lodging the complaint, which according to prosecution is 13.12.2012, the complainant police had already visited the hospital and recorded the statement of the injured. Thus,

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by making the said suggestion, the accused himself has admitted that the complaint was given on 06.12.2012 but not on the date 13.12.2012, though PW-7 (CW-9) T.V.Raju, the Police Sub-Inspector of complainant police station has stated that the complaint was received by him on 13.12.2012.

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Further, PW-2 has admitted a suggestion made to him in his cross-examination from the accused side as true, that, along with his wife, i.e., PW-1 (CW-1) Smt.Sharadamma, even PW-3 (CW-3) Manjunatha had also been to the police station to lodge the complaint.

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The said PW-3 (CW-3) Manjunatha in his crossexamination from the accused side has stated that along with the complainant, he had been to the police station on 06.12.2012. This undenied statement elicited by none else than the accused further corroborates the say of PW-1 and PW-2 that the complainant had been to the police station on 06.12.2012 to lodge the complaint and that PW-3 (CW3) accompanied her.

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It was suggested to PW-3 in his cross-examination from the accused side that PW-3 along with CW-4 and others threatened the Deputy Superintendent of Police at his office that incase if they do not register the complaint, they would go on strike. Though the witness has not admitted the said suggestion as true, that they threatened the Deputy Superintendent of Police, however, by making the said suggestion, the accused have shown that the complainant with CW-3 and CW-4 had approached the police at the earliest point of time, however, they were not prepared to register the crime.

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This inference is further supported by one more suggestion made to PW-3 in his cross-examination from the accused side, that, it was at their pressure, complaint at Ex.P1 was registered on 13.12.2012. Thus, the suggestion was made from the accused side that it is only after the pressure, the complaint was registered, which means otherwise, it would not have been registered.

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Added to the above, it is suggested that complaint

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was registered on 13.12.2012, but not that the complaint was given on 13.12.2012. It is also for the reason that even though PW-7 has stated that the complainant appeared before him on 13.12.2012 and lodged a complaint as per Ex.P1, however, on the very front page of the complaint at Ex.P1, there is an endorsement made on the left side margin of the complaint mentioning:

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“received on 12.12.2012 at 8.00 p.m. Sd/- 12.12.2012”

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It means the complaint was not given on 13.12.2012

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but it was on some earlier date.

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PW-4 (CW-7) Dr.Sachin, the Medical Officer at

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Government General Hospital, Chikkanayakanahalli in his evidence has stated that the injured Thimmaiah (PW-2/ CW-2) was brought to their hospital on the dated, 05.12.2012 at 10.45 p.m. with the history of assault, by Huliyuru Police (complainant police). The said statement of the witness has not been denied from the accused side.

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Thus, even according to the Doctor, the injured was brought on 05.12.2012 by none else than the complainant police that too with the history of assault. As such, before 10.45 p.m. on 05.12.2012, when the complainant police are shown to have brought the injured (PW-2) to the hospital, they knew about the alleged incident. It is because of the same, they could bring the injured (PW-2) to the hospital with the history of assault.

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Further, the very same Doctor (PW-4) in his crossexamination has stated that they have sent MLC intimation to the police station about the appearance of the injured with the history of assault. Thus, even an MLC was also given by the Doctor, immediately after injured was brought to his hospital by the complainant police on 05.12.2012. The said statement about the Doctor giving MLC was elicited from the accused side itself and the said suggestion to PW-4 has also remained undenied and undisputed.

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Lastly, even though PW-7 who claims to have registered the crime, in his cross-examination has stated that prior to the date, 13.12.2012, their station had not received any information about the present incident, however, the undenied evidence of PW-4, the doctor that on 05.12.2012 at about 10.45 p.m. itself, the injured was brought to his hospital by none else than the complainant police shows that the complainant police had the information and knowledge about the alleged incident much much prior to the date, 13.12.2012.

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Added to this, in the very cross-examination of PW-7 from the accused side, a suggestion was made to the witness suggesting that the complainant had given a complaint earlier to (emphasis supplied) 13.12.2012, however, by making an enquiry, finding no proof in it, it was not registered. Later, at the pressure of Dalitha Sangarsha Samithi, a case came to be registered. Though the witness has not admitted the same to be true, still by making the said suggestion repeatedly, the accused have

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themselves shows that the complainant police were informed and they were aware about the incident and the complaint was also given to them much prior to 13.12.2012. As such, the evidence of PW-7, the case registering police officer go to show that, is not believable as true regarding the date of receipt of complaint and also about the alleged non-receipt of information by his police station earlier.

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Added to the above, thought the complaint at Ex.P1 is shown to have been given and registered on 13.12.2012 and even after taking the same as true, still, the complainant in the very complaint itself has explained the reason for delay stating that since there were nobody to take care of her husband in the hospital, there was delay in lodging the complaint. She has reiterated the same even in her evidence also. The Wound Certificate at Ex.P4 also go to show that injured PW-2 was treated as an inpatient in the District Hospital at Tumakuru, which was not the place of residence of PW-1 or PW-2. The evidence

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of PW-1 and PW-2 that they two alone reside in their house and though they have a son and daughter-in-law, but they are residing separately since having remaining undenied and undisputed, the evidence of PW-1 that there was none to take care of her husband while he was under treatment in the hospital appears to be more truthful and believable.

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For all these reasons, argument of the learned counsel for the accused that there is inordinate delay in lodging the complaint, as such, the very incident is doubtful is not acceptable. However, even though the analysis made above would go to show that the complainant had approached the complainant police at the earliest point of time, not later than 06.12.2012 and that the complainant police were aware of the incident since they themselves had taken the injured (PW-2) to Chikkanayakanahalli Government Hospital on 05.12.2012 at 10.45 p.m., as such, the burden would be on the prosecution to explain as to why did not the complainant police took up appropriate action immediately after coming to know about the incident on 05.12.2012 itself but the same

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would not take away the evidentiary value of the evidence

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of PW-1, PW-2 and PW-3 with respect to the incident. Needless to say, the latches, if any, on the part of the investigating officer or the case registering authority cannot be allowed to cause injustice to the true victim in the case. As such, a mere alleged delay, if any, would not go to the root of the case of the prosecution in suspecting the case of prosecution.

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About the incident of alleged assault upon PW-2, as observed above, it is PW-1, PW-2 and PW-3 who have uniformly stated about the occurrence of the incident.

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The learned counsel for the respondents in his argument vehemently submitted that the evidence of PW3 (CW-3) Manjunatha is not believable for the reason that none else than his Aunt, i.e., PW-1 herself has stated that the said Manjunatha visited them only on the next day after the incident. As such, the evidence of PW-3 that he

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was an eye-witness to the incident creates a serious doubt

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making his evidence unsafe to believe.

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Per contra, the learned HCGP in his argument submitted that the materials placed before the Court, more particularly, the evidence lead by the prosecution shows that there were two persons with the same name, Manjunatha and incidentally, both were shown to be son of Thimmaiah.

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PW-1 in her cross-examination has stated that

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the name of her son is also Manjunatha. Admittedly, the father is Thimmaiah who is PW-2 injured in the case. PW3 (CW-3) is also Manjunatha, Son of Thimmaiah. However, as rightly submitted by the learned counsel for the respondents, the person Thammaiah whom PW-1 has referred as the one who visited them with respect to the incident and said to have visited them on the next day of the incident is not their son, Manjunatha, but it is PW-3 (CW-3) Manjunatha since at one place, in her evidence at

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page No.5, she has given the name of the said Manjunatha

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along with his rank in the charge-sheet as PW-3.

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No doubt, the very same PW-1 in her

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examination-in-chief in the beginning itself has stated that the said Manjunatha (CW-3) had been to their house on 05.12.2012 to talk to them, however, she could not adhere to her original version in her cross-examination. On the other hand, she herself stated that the said Manjunatha visited their village on the next day and he was doing stone contract work. Had really PW-3 (CW-3) Manjunatha visited the village of PW-1 and PW-2 on 05.12.2012 itself, PW-1 would have necessarily adhered to her original version and would not have stated in her cross-examination that it was on the next day of the incident, the said Manjunatha visited their place. Therefore, when PW-1 who is none else than the alleged eye-witness and the complainant in the case herself has stated that the said Manjunatha (CW-3) came to their village only on the next day of the incident, it is not safe to

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believe that PW-3 (CW-3) Manjunatha was an eye-witness to the alleged incident. As such, it is unsafe to believe his evidence that he witnessed the incident and has seen the alleged overt-act of accused Nos.1 to 4.

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Since the evidence of PW-3 Manjunatha has proven to be not safe to believe, the only other witnesses who claims to have given a direct account about the alleged incident are PW-1 and PW-2. The evidence of both PW-1 and PW-2 that accused Nos.1 to 4 approached them while these two witnesses were sitting near their house in the late evening on 05.12.2012, initiating a quarrel with PW-2 and objecting for him to put up a compound wall in front of his house gains support from the further un-denied evidence of PW-1 in her cross-examination that accused No.1 was the Secretary, accused No.2 was the Director and accused No.3 was the Examiner of the Milk in the local Dairy (Milk Collection Centre). It is further corroborated by the explanation given by her that every evening, the vehicles from KMF visits the local Dairy and carries the

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milk Can to their place. The said undenied evidence was further corroborated from the suggestions made to PW-1 in her cross-examination and elicited her response from none else than the accused side. The same is clear in the cross-examination of PW-1 at page No.4 where it was suggested to the witness that PW-1 and PW-2 with an intention to obstruct the movement of the vehicles to the local Dairy were encroaching a public road in front of their house and attempting to erect a compound wall. It was also suggested to PW-1 in her cross-examination that the Secretary of the Dairy and Director had approached them (PW-1 and PW-2) and requested them not to encroach the road since it causes inconvenience for the movement of the vehicles. Further, it was also suggested to PW-1 from the accused side that it was in connection with the same, there was rivalry between them. Though the witness has not admitted these suggestions as true, however, by making these suggestions and also taking those suggestions as one of their defence, the accused have admitted about the existence of the local Dairy in the

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village and any vehicle going to that local Dairy has to be necessarily passed in front of the house of PW-1 and PW-2 and more importantly, the accused Nos.1, 2 and 3 being the Secretary, Director and the Milk Examiner of the Dairy previously also approaching PW-2 and asking him not to put up compound wall.

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This elicitation of the statement in the crossexamination of PW-1 by none else than from the accused side would corroborate the evidence of PW-1 and PW-2. That accused Nos.1, 2 and 3 as the office bearers of the Dairy joined by accused No.4 approached them on the evening of the date of incident and initiated a quarrel in connection with PW-2’s idea of erecting a compound wall in front of his house and objecting for the same stating that the same would obstruct the movement of the vehicles to their Dairy. Thus, in the speed of shaking the evidence of PW-1, which has come in full support of the case of prosecution, the accused themselves have led to admit several things, which was helpful to the prosecution in proving the motive beyond the commission of the crime without much effort.

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The evidence of PW-1 that among the four

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accused who approached them on the evening of the incident, it was accused Nos.1 and 2 who assaulted her husband with sticks and remaining two accused assaulted her husband with their hands and legs is further corroborated in the evidence of none else than PW-2, the injured. He too has given the very similar picture of the alleged incident and has specifically and clearly stated that it was accused Nos.1 and 2 who apart from dragging him outside his house also assaulted with sticks on his both legs below the knee. He has even described the overt-act of the accused Nos.1 and 2 individually stating that accused No.1 assaulted him with a stick below his right knee, whereas, accused No.2 assaulted him with a stick below his left knee, the remaining accused Nos.3 and 4 were assaulting him with their hands on several parts of his body. The said evidence of none else than PW-2 which has stood corroborated from the evidence of PW-1 who also shown her to be an eye-witness to the incident finds no reason to disbelieve them. Inspite of the same, as

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submitted by the learned HCGP in his argument by relying upon a case of the judgment of the Hon’ble Apex Court in LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW JHARKHAND) and connected matters reported in (2021) 9 Supreme Court Cases 191 when the evidence of an injured witness is reliable and trustworthy, the sole evidence of the injured witness can be the basis for conviction. In the said case, our Hon’ble Apex Court has observed that the evidence of the injured eye witnesses cannot be ignored and requires to be believed.

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The principle laid down by the Hon’ble Apex Court in LAKSHMAN SINGH’S case (supra) was reiterated in its subsequent judgment ASHOK KUMAR Vs. STATE OF UTTAR PRADESH AND CONNECTED MATTERS in (2022 SCC OnLine SC 1525) in para Nos.134 and 183 was pleased to reiterate its observation regarding the evidentiary value of the injured eye-witnesses. By referring to its several of the previous cases, it has reiterated the principle laid down by it that the evidence of

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the injured witness cannot be discarded with and can be the sole basis for conviction, provided, the evidence of such an injured eye-witness imbibes confidence in the Court to believe the same.

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As such, even though the evidence of PW-2 as an injured which has successfully withstood the thorough and searching cross-examination from the accused side itself is sufficient to believe that accused Nos.1 and 4 have inflicted injuries upon him by assaulting him with stick and by their hands, still, the evidence of PW-1 also corroborates the same, thus, further strengthening the case of prosecution for proving the alleged guilt against the accused.

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The medical evidences lead by PW-4 (CW-7) Dr.Sachin further corroborates the case of the prosecution. The said witness has stated that while working as a Medical Officer at Government General Hospital, Chikkanayakanahalli, the complainant police brought a person by name, Thimmaiah as an injured with the history

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of assault. He examined the said injured patient on 05.12.2012 at 10.45 p.m. and noticed:

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(i) tenderness and swelling over the right leg; (ii) tenderness and swelling over the left leg.

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The witness has stated that he referred the patient to District Hospital, Tumakuru for higher treatment. The said injured was treated as an inpatient in the said Government Hospital at Tumakuru and had given their report, it is based on the report of the said Hospital, he noticed that the injured had sustained a fracture injury also, which was injury No.2 observed by him as above. Since it was a fracture injury, he concluded that the said injury was grievous in nature and the other one was simple in nature. Accordingly, he has issued a Wound Certificate at Ex.P4. After seeing the two sticks at MOs-1 and 2, the witness has stated that the injuries noticed with the injured are possible to be caused when assaulted with MOs-1 and 2.

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The very same witness (PW-4) in his crossexamination in the very beginning sentence has also

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stated that the injuries found on the injured are also possible to be caused when a person falls on a hard surfaced earth. The other suggestions that he has not mentioned on which particular portion of the leg, the injury was found on the injured was admitted by this witness as true. He also has stated that the investigating officer had not produced before him the sticks at MO-1 and MO-2 and obtained his opinion.

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It is based upon the said statement of PW-4, the Doctor in his cross-examination that the injuries found on the injured are also possible to be caused when a person falls on a hard surfaced earth, the learned counsel for the respondents in his argument vehemently submitted that when those injuries are possible to be caused by a fall of a person on a hard surface, it cannot be believed that PW-2 sustained those injuries only at the assault alleged to have been inflicted upon him by the accused.

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No doubt, the evidence of PW-4 would go to show an alternate possibility of the occurrence of the

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injuries which were found on the person of PW-2. But when the trustworthy and believable evidence of PW-2 who is none else than the injured himself clearly shows that he sustained injuries only at the assault made to him by none else than accused Nos.1 to 4 against him, and also when PW-1 as an eye-witness has corroborated the evidence of PW-2 by stating that she has seen the accused Nos.1 and assaulting her husband (PW-2) among whom, accused Nos.1 and 2 assaulting her husband (PW-2) with sticks at MOs-1 and 2, the possibility of occurrence of similar injury by alternate means cannot be taken as the one which makes the case of prosecution suspicious or unbelievable. On the other hand, the alternate possibility of occurrence of the injury requires to be not given importance than what it deserves but the evidence of PWs-1 and 2, which is also corroborated by the evidence of the very same Doctor (PW-4) that the injuries found on PW-2 are possible to be caused when assaulted with MO-1 and MO-2 requires to be accepted and believed. As such also, the argument of the learned

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counsel for the respondents (accused Nos.1 to 4) on the said point is not acceptable. On the other hand, the medical evidence also stands in support of the case of the prosecution and corroborates the evidence of PW-1 and PW-2.

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The weapons used in the commission of the crime according to the prosecution are the two sticks at MO-1 and MO-2. According to the prosecution, those two sticks were found in the place of the incident and the same were seized at the time of drawing scene of offence panchanama by the investigating officer, i.e., PW-9 (CW10) Vamshi Krishna on 14.12.2012. According to PW-9, the investigating officer on 14.12.2012, he visited the place of the incident as shown to him by PW-1 and drew a scene of offence panchanama as per Ex.P2 in presence of PW-5 (CW-5) M.Ganesha and PW-8 (CW-4) E.Nagarajau and during the drawing of scene of offence panchanama, he also saw the two sticks shown by the complainant as the one used in commission of the crime by the accused

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and seized them, which the witness has identified at MO-1 and MO-2.

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The said panchas to the scene of offence panchanama, i.e., PW-5 and PW-8 have not supported the case of prosecution. They have stated that they do not know what is written in the panchanama except putting their signature to the said document at the request of the police. Even after treating them hostile, the prosecution could not get any support from them by cross-examining them. Taking the absence of support of PW-5 and PW-8 to the case of the prosecution, in his favour, the learned counsel for the respondents contended that the absence of the support by PW-5 and PW-8 further makes the case of prosecution highly suspicious to believe.

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No doubt, the evidence of panch witnesses in

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an alleged incident of crime is also important material, but in the case like the one on hand, when the very material witnesses including the injured witness and one of the important eye-witness have supported the case of

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prosecution about the incident, the place of incident and also the weapon used, further when the Doctor in his evidence has also opined that the weapons at MOs-1 and 2 can cause the injuries found on the injured (PW-1 and PW2) and in the circumstance, when from the accused side itself, by making suggestion to PW-1, it was admitted that the accused were not happy with PW-2 having an idea of putting up a compound wall in front of his house and had approached him previously also with a request not to put up such a compound wall, the total inference that can be drawn would be only one that the incident has taken place at the very same spot as contended by PW-1, which was in front of their house and there is all the possibility of the sticks being used in the commission of the crime and making its availability to the investigating officer during the time of panchanama in the said place of offence after the incident.

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The Special Court while analysing the evidence on

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the said aspect of the alleged seizure of the sticks at MO-1

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and MO-2 expressed its suspicion about the presence of the sticks in the place of the offence for such a long time after the incident. However, in the process, it failed to notice that the sticks were not laying in the spot when the scene of panchanama was drawn on 14.12.2012 but, those sticks were produced before the investigating officer

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by none else than the complainant stating that it was with the very same sticks, accused-Seenappa (accused No.1) and accused-Nataraju (accused No.2) assaulted her husband and had thrown the same in the spot and that she had kept them safely. The very scene of offence panchanama mentions that those sticks were not found lying in the spot, however, after the incident, PW-1 had kept them safely and had handed it over to the investigating officer at the time of drawing the scene of offence of panchanama at Ex.P2. As such, the said reasoning given by the Special Court to further disbelieve the case of prosecution stating that the alleged seizure of MO-1 and MO-2 creates doubt in the case of the prosecution is also not tenable.

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In the light of the above, the evidence of the

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rest of the witnesses, who mainly, are PW-7 and PW-9 would not be of much importance. PW-7 (CW-9) T.V.Raju, the then-Police Sub-Inspector of complainant police station has stated about he receiving the complaint at Ex.P1 on 13.12.2012 and also registering it in their station as a crime, preparing an FIR as per Ex.P6 and submitting the same to the Court. However, the veracity of his evidence and to the extent, how far that can be believed has been analysed in the earlier part of this judgment. As such, his evidence whether taken into consideration or not would not shaken or dilute the case of prosecution.

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The evidence of PW-9 (CW-10) Vamshi Krishna, the investigating officer about he conducting the investigation in the matter including recording the statement of the witnesses including the injured and collecting the Wound Certificate as per Ex.P4 stands corroborated by the evidence of the witnesses as discussed above. His evidence that he collected the Caste Certificate of the

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accused and PW-1 and PW-2 from the Tahsildar as per Ex.P3 has not been seriously disputed. Thus, it stands proved beyond doubt by the prosecution that on the date, 05.12.2012 at about 8.00 p.m., the accused Nos.1 to 4 in furtherance of their common intention approached PW-2 and assaulted him with their hands and legs and also with two sticks at MOs-1 and 2. Consequently, PW-2 sustained simple and grievous injuries. The prosecution has alleged that the accused, thus, by their acts have committed the offences punishable under Sections 323, 324, 326 r/w Section 34 of IPC.

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No doubt, the prosecution could able to prove that the act of the accused in assaulting PW-2 was voluntary and without any provocation from the injured side. Further, the prosecution could also able to establish that the weapon used in the commission of the crime were the two sticks at MO-1 and MO-2. The prosecution could also able to prove that due to the assault by the accused, PW-2 sustained two injuries; one among which was grievous in

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its nature. However, to attract Section 326 of IPC, it is not just sufficient that the accused have voluntarily caused grievous injuries upon the injured but it is also required that such a voluntary act of the accused in causing grievous hurt to the injured must be by dangerous weapons or by some dangerous means. In the instant case, the weapons used by the accused which are two sticks at MOs-1 and 2 are described as two bamboo sticks in the scene of offence panchanama, which bamboo sticks can be held by hand; one is measuring 3½ feet in length and another is measuring 2½ feet in length. Thus, these two bamboo sticks of this length, which can be held easily with hand cannot be considered as a heavy club or a dangerous weapon. According to PW-1 and PW-2, the accused have assaulted PW-2 on the lower part of his lower limb, i.e., below the knee. As such, the part and the place of the organ to which the injuries were inflicted is also not vital organ of the body. As such, the means of assault cannot be termed as dangerous. Thus, one of the essential ingredients falls

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short in the case of prosecution to prove the alleged guilt

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of the accused punishable under Sections 326 of IPC.

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However, the proven act of accused as against PW-2 in voluntarily causing grievous hurt to him with sticks would squarely falls within the ambit of Section 325 of IPC.

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It is also the evidence of PW-1 and PW-2 that accused apart from inflicting injuries upon PW-2 by assaulting him with two sticks at MO-1 and MO-2 have assaulted him with hands and legs. Both PW-1 and PW-2 have stated that accused Nos.3 and 4 have assaulted PW2 with their hands on various parts of his body. The medical evidence given by PW-4 coupled with the Wound Certificate at Ex.P4 also shows that the injured (PW-2) had

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sustained a simple injury also has a tenderness and swelling over the left leg. Thus, the acts of the accused who had come together, in furtherance of their common intention to question PW-2 and to assault him have voluntarily caused hurt to PW-2, thereby, attracting

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Section 323 of IPC. As such, the prosecution could able to prove the guilt against the accused punishable under Section 323 r/w Section 34 of IPC also.

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However, the Trial Court failed to notice the same and in a hurried manner proceeded to hold that the prosecution could not able to prove the alleged guilt against the accused for the offences punishable under Sections 323, 324 and 326 of IPC.

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The accused are also charged for the offences punishable under Sections 504 and 506 r/w Section 34 of IPC. No doubt, PW-1 in her evidence has stated that the accused after approaching her husband abused him in filthy language (�ನ��ಾ��ಾಡ , �ನ� ಅಮ��ಾ�ಡ). Had really the

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accused had abused PW-2 in filthy language, then definitely, PW-2 against whom such use of language is alleged to have been made, necessarily stated in his evidence that accused had abused him in particular manner and had provoked him in any way.

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However, the evidence of PW-2, who is none else than the affected person in the incident is totally silent in this regard. As such, it is not safe to believe that the accused have committed an offence punishable under Section 504 r/w Section 34 of IPC.

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Similarly, with respect to the other offence of the accused threatening PW-2 of dire consequences has been spoken only by PW-2 in his evidence. Had really the accused had threatened PW-2 of dire consequences including taking away his life, then, PW-1 who was an eyewitness to the alleged incident should have observed the same and without fail would have stated in her evidence about the accused putting threat to her husband. However, PW-1 though has stated that PW-2 (CW-2) was also assaulted in the incident, has not whispered that the accused had threatened her husband of dire consequences. Under such circumstance, it is not safe to hold that the prosecution could able to prove the guilt

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against the accused punishable under Section 506 r/w Section 34 of IPC.

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The accused are also charged with the offence punishable under Section 3(1)(x) and 3(2)(v) of SC/ST Act. In order to attract Section 3(1)(x) of SC/ST Act, it is not just sufficient, if it is proved that the affected or injured person were belonging to either Scheduled Caste or Scheduled Tribe. But it is also necessary that the accused knowing fully well that the persons against whom they are committing crime belong to either Scheduled Caste or Scheduled Tribe should have intentionally insulted or intimidated them with an intent to humiliate them in any place within public view.

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In the instant case, no doubt, the incident has taken place outside the house of PW-2, which according to the accused was also was a part of the public road, as such, it was in public view. However, neither PW-1 nor PW-2 have in clear terms stated as to how they were insulted at the act of the accused or about the intention of the accused to insult them or to humiliate them. Neither of

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these two witnesses anywhere in the evidence have stated that any of the accused at the time of the incident have abused them by taking the name of their caste. As such, even though the Caste Certificate at Ex.P3 shows that PW1 and PW-2 were belonging to a caste called ‘Bhovi’, which according to prosecution falls under the Scheduled Caste and Ex.P3 also shows that accused Nos.1 to 4 does not belong to either Scheduled Caste or Scheduled Tribe, by that itself, it cannot be held that the accused have committed the offence punishable under Section 3(1)(x) of the SC/ST Act. As such, the finding of the Special Court on the said aspect does not warrant any interference at the hands of this Court.

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Lastly, Section 3(2)(v) of the SC/ST Act would come into operation only when the offence proved is punishable with imprisonment for a term of ten (10) years or more committed against a person knowing that such person is a member of the Scheduled Caste or Scheduled Tribe. In the instant case, though PW-1 and PW-2 were belonging to Scheduled

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Caste and the knowledge to that effect can be imputed to the accused, however, the offence proved against the accused is not punishable with imprisonment for a term of ten (10) years or more. As such, Section 3(2)(v) of the SC/ST Act is also not attracted in the instant case.

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The motive behind the commission of the crime has already been discussed above in detail while analising the evidence regarding the incident. However, at the cost of repetition, it is observed that the prosecution could able to establish that the plan of PW-2 to erect a compound in front of his house was seriously objected to by the accused who on the earlier occasion also had approached PW-2 and asked him not to put up the compound since erecting any such compound, according to the accused, would cause obstruction to the movement of the vehicles approaching their Dairy. PWs-1 and 2 in their evidence have reiterated the said motive behind the commission of the crime. Infact in the cross-examination of PW-9 the investigating officer, suggestions were made from none else than the

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accused side about the existence of the Dairy near the house of PW-2 and necessity of any vehicle going to the said Dairy to be passed in front of the house of PW-2. Thus, it is established that the accused never wanted the erection of any compound or structure by PW-2, which according to them would cause obstruction for the movement of the vehicle coming to their Dairy. It is in that regard the accused who had previously asked PW-2 not to put up such compound have on the date of the incident, which was on 05.12.2012 took a drastic step of assaulting PW-2 with MOs-1 and 2. Thus, motive behind the alleged commission of the crime also stands established.

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The defence of the accused throughout the case

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was that PW-2 was a drunkard, addicted to liquor and had earned a bad name in the village. As such, he on his own had fallen on a hard substance and sustained injuries found on his body. Suggestions to that effect were made in the cross-examination of PW-1 and PW-2. However,

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both the witnesses have denied the said suggestion as true. No doubt, PW-4, the Doctor has stated that the injuries found on the injured (PW-2) can also possible to be caused when a person falls on a hard and rough surface. However, as analysed above, the evidence of prosecution, more particularly of PW-1 and PW-2 has proved beyond reasonable doubt that the injury sustained by PW-2 was not by accidental fall but it was at the specific intentional act of the accused voluntarily causing grievous hurt to him both by hands and by using the sticks at MOs-1 and 2. As such, the written statements of the accused also does not stand to suspect the prosecution case. Consequently, the impugned judgment, which had given a clean chit to all the four accused from all the alleged offences warrants interference at the hands of this Court and the impugned judgment warrants modification on the lines observed above.

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Accordingly, we proceed to pass the following:

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ORDER

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(i) The Criminal Appeal stands allowed in part.

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(ii) The impugned judgment of acquittal dated 19.09.2016 passed by the learned III Additional District and Sessions Judge, Tumakuru in Special Case No.45/2013 stands modified to the effect that the judgment of acquittal acquitting accused No.1-Sri.Seenappa, Son of Kariyappa, accused No.2-Sri.Nataraju, Son of Hanumanthaiah, accused No.3Sri.Ramanna @ Venkataramaiah and accused No.4-Srirangappa @ Rangappa, Son of Sanna Rangaiah, all are residing at Guruvapura, Huliyar Hobli, Tumkur District –572101 for the offence punishable under Section 323 of IPC stands set aside.

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(iii) The accused Nos.1 to 4 stands convicted for the offence punishable under Section 323 r/w Section 34 of IPC.

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(iv) The acquittal of accused Nos.1 to 4 for the offence punishable under Section 326 r/w 34 of IPC stands modified.

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(v) The accused Nos.1 to 4 are held guilty of having committed the offence punishable under Section 325 r/w Section 34 of IPC.

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(vi) The rest of the portion of the judgment of acquittal of accused Nos.1 to 4 for the offences punishable under Sections 324, 504, 506 r/w Section 34 of IPC and under Section 3(1)(x) and 3(2)(v) of SC/ST Act r/w Section 34 of IPC stands confirmed.

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To hear on sentence the matter stands passed over.

Sd/JUDGE

Sd/JUDGE

List No.: 1 Sl No.: 4

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DR.HBPSJ & UMBAJ: 29.11.2023 (VIDEO CONFERENCING / PHYSICAL HEARING)

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HEARING ON SENTENCE

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Called again.

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Heard the submissions of the learned counsel for the accused/respondent Nos.1 to 4 and the learned High Court Government Pleader on the sentence.

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The learned counsel for respondent Nos.1 to 4 (accused Nos.1 to 4) submitted that even according to the prosecution, it was accused Nos.1 and 2 who were said to have assaulted PW-2 with weapon, whereas, accused Nos.3 and 4 have only assaulted with their hands. Further, the weapon used is also not a dangerous weapon, which is only a bamboo stick. Furthermore, the injury inflicted is not on any vital part of the body but below the knees of lower limbs. He also submits that all the four accused are the only bread winner in their family, having large number of dependants and none of them have any

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criminal antecedents, as such, a lenient view be taken into consideration.

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Per contra, the learned HCGP submitted that the four persons in furtherance of their common intention have attacked and assaulted PW-2 and made use of the weapons in assaulting him. They have caused fracture injury upon the injured. As such, in the circumstances of the case, the maximum punishment, which can be ordered, be ordered in the instant case.

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It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

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In the instant case, the accused Nos.1 to 3 claims to be the Secretary, Director and employee of the Milk Dairy. The prosecution case go to show that the said Milk Dairy is located near the house of PW-2. As such, all the vehicles required to go to Milk Dairy should necessarily go in front of the house of PW-2. Therefore, so long the Milk Dairy would be there in the said location and it would be necessary for the vehicles going to the Milk Dairy to pass

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through in front of the house of PW-2, the said PW-2 can apprehend any caution or warning or objection from the accused. As proved, PW-2 has sustained a grievous injury to one of the important limb of the body. Though the weapon used is not dangerous in nature, however, the injury inflicted cannot be ignored. Further, all the accused have committed the alleged offence in furtherance of their common intention. As such, common intention, which is proved by the prosecution also cannot be ignored. Under the said circumstance, we are of the opinion that none of the accused deserves the benefit under the Probation of Offenders Act, 1958. However, considering the mitigating factors submitted by the learned counsel for the accused that the accused are the sole bread earners in their family having large number of dependants upon them and also considering the facts and circumstances of the case, we proceed to pass the following:

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ORDER ON SENTENCE

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(i) The accused No.1-Sri.Seenappa, Son of Kariyappa, accused No.2-Sri.Nataraju Son of Hanumanthaiah, accused No.3Sri.Ramanna @ Venkataramaiah and accused No.4-Srirangappa @ Rangappa, Son of Sanna Rangaiah, all are residing at Guruvapura, Huliyar Hobli, Tumkur District –572101 are sentenced to undergo simple imprisonment for a period of four (4) years and to pay a fine of `3,000/- (Rupees Three Thousand Only) each and in case of default of payment of fine, to undergo simple imprisonment for a further period of three months, for the offence punishable under Section 325 of the Indian Penal Code, 1860.

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(ii) For the offence punishable under Section 323 of the Indian Penal Code, 1860, accused Nos.1 to 4 shall undergo

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simple imprisonment for a period of six months.

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(iii) Both the sentences shall run concurrently.

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(iv) The accused Nos.1 to 4 are entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.

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(v) Out of the total fine amount of 12,000/(Rupees Twelve Thousand Only) paid by the accused, if any, a sum of 10,000/(Rupees Ten Thousand Only) be paid to PW-2/Thimmaiah as compensation.

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(vi) The remaining sum of `2,000/- (Rupees Two Thousand Only) shall go to the State.

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(vii) Rest of the order of the Special Court with respect to the disposal of the properties at MO-1 and MO-2 remains unaltered.

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(viii) The accused shall surrender before the Special Court within forty five (45) days from today and serve the sentence as ordered above by this Court.

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(ix) A free copy of this judgment be furnished

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to the accused immediately by the

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Registry.

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Registry to transmit a copy of this judgment along

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