Krishne Gowda Vs State of Karnataka by

THIS CRL.A. IS FILED U/S. 374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:14.3.14 PASSED BY THE I ADDL. DIST., AND SESSIONS JUDGE, MANDYA IN SPL.C.NO.31/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 3(1)(X) OF SC/ST (POA) ACT 1989, SECS. 324 AND 323 OF IPC.

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THIS CRIMINAL APPEAL HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT, DELIVERED/PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)

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The appellant being aggrieved by the judgment of his conviction and order of sentence dated 14.3.2014 passed in Special Case No.31/2011 by the I Addl.District and Sessions judge, Mandya has preferred this appeal.

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Brief and relevant facts leading upto this appeal are as under:

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The parties to this appeal are referred to as per

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their rank before the trial Court.

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That the accused was charge-sheeted by Dy.SP, Srirangapatna sub-division for the offences punishable under Sections 323, 324, 504 of IPC under the Sec. 3 (1) (x) Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 [in short `the SC & ST (POA) Act].

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It is the case of the prosecution that, on 28.03.2011, at 6.00 p.m. at Atiganahalli village, the present accused belonging to Namdhari caste, when

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complainant was sitting along with CW.2 in his house,

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called him to the site where he was standing and when complainant Kalyanakumar asked the accused with regard to loss of his watch and requested to return the same if he

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has taken. Being enraged by the words used by the complainant, accused abused the complainant as "¯ÉÆÃ

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ºÉÆ¯ÉAiÀiÁ ¸ÀÆ¼ÉªÀÄUÀ£É, ¤ªÀÄäªÀé£ÁßPÉÃAiÀÄ, ¤£Àß ªÁZÀ£ÀÄß £Á£ÀÄ vÉUÉPÉÆAr®è." by taking his caste, humiliated the complainant in public view knowing fully well that, complainant belonged to SC community. It is further alleged that, accused caught hold the collar of the complainant, pushed him, took a stone from the spot and assaulted on the face of the complainant with the said stone on his lips, right shoulder and ribs and caused bleeding injuries. He also rolled the complaint and assaulted his hands and caused him simple injuries. Immediately he was taken to the hospital. There, the Melukote Police came to the hospital and recorded his statement and set the criminal law in motion.

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The Dy.SP on taking up investigation, recorded

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the statement of witnesses and on completion of investigation, filed the charge sheet against the accused for aforesaid offences.

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Before the learned Special Court, to substantiate the case of the prosecution, it examined in all 10 witnesses and got marked Ex.P1 to P13 with respective signatures and MO No.1 stone and closed prosecution evidence. On completion of the respondent's evidence, the accused was questioned under Section 313 of Cr.PC so as to enable him to answer the incriminating circumstances appearing in the evidence of prosecution. He denied his complicity in the crime.

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The learned trial Court, on hearing the arguments and on evaluation of the evidence, found the accused guilty of committing the offences under Section 3(1)(x) of SC and ST (POA) Act and also Sections 323 and 324 of IPC and acquitted the accused for the offences

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under Section 504 of IPC and passed the sentence in

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respect of the offences for which he was found guilty.

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"The accused is hereby sentenced to undergo S.I for one year and to pay fine of Rs.1,000/- in default S.I for three months of the offences punishable under Sections 3(1)(X) of the SC-ST (Prevention of Atrocity) Act, 1989 and he is further sentenced to undergo one year and to pay fine of Rs.1000/- in default S.I for three months of the offence punishable under section 324 of IPC and he is further sentenced to pay fine of Rs.1,000/- in default S.I for three months of the offence punishable under section 323 of IPC.

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The sentences and in default sentences shall

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run concurrently."

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This is how now the appellant is before this

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Court challenging the impugned judgment and order of conviction and sentence.

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The learned counsel for appellant in addition to narrating the facts of this case with all force submits, that

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the trial Court has committed grave error in accepting the evidence lead by the prosecution. No offence has been

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committed by the accused in the manner alleged by the prosecution. The complaint is very much silent about the same. The doctor who has medically examined Kalyanakumar has stated that, on the day of incident, PW.1 Kalyanakumar was fully intoxicated and he himself fell down and sustained injuries. But, however, by misreading the evidence lead by the prosecution, the trial Court has committed a grave error in convicting the accused. None of the ingredients of the offence under the aforesaid special enactment or under the IPC are fulfilled by the prosecution. Among the other grounds stated in the appeal memo, it is prayed by the counsel to allow this appeal and set aside the impugned judgment and prays to acquit the accused.

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Per contra, the learned High Court Government Pleader supported the reasons and findings of the trial Court and specifically contend that, the said offence has taken place in a public place that too in the evening hours when public have gathered. The evidence of PWs.2, 3 and

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9 being the eye-witnesses supported the evidence of PW.1

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in material particulars. PW.1 and these PWs. 2,3 and 9 are specific in their evidence about their presence when the incident took place and they have specifically stated about the words used by the accused. The evidence of doctors substantiate the injury sustained by the complainant. Relying upon the evidence lead by the prosecution, he prays to dismiss this appeal and confirm the impugned judgment.

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I have given my anxious consideration to the facts of the case, and the arguments advanced by both the side and perused the records. In view of the rival submissions of both the side, the point that would arise for my consideration is:

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" whether the learned trial Court has committed any factual or legal error in convicting and sentencing the accused person? ."

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It is the specific allegation of prosecution that, on 28.03.2011 at 6.00 p.m. within the jurisdiction of

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Melukote at Atiganahalli Village, complainant PW.1 who belongs to SC enquired the accused about missing of his watch, at that time, this accused abused in a public place used abusive words by taking his caste name and

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assaulted him by using the stone fell at the scene of offence. In a case of present nature, when offence under the provisions of SC and ST (POA) Act, 1989 is attributed along with other offences under Indian Penal Code, it is the duty of the prosecution to prove that complaint/victim belonged to Scheduled Caste. In this case, PW.1 Kalyanakumar belongs to SC community is not in dispute. Accused is not disputing caste of the complainant. Even other witnesses so examined by the prosecution also specifically deposed that, complainant Kalyanakumar belongs to SC and accused belonged to upper caste community. Therefore, the question of deciding that, whether complainant belongs to SC does not arise as consistently all the witnesses have spoken about the caste of the complainant.

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PW.1 being the complainant has reiterated the contents of the complaint in his evidence on oath. As per his evidence, at about 6.30 p.m. on 28.03.2011, he was sitting on a 'Jagali' of his house along with his mother. In front of his house, there exists house of CW.3 and 4, they were also sitting on their 'Jagali '. According to his evidence, there exists a open site at some distance from the house of the complainant. When the complainant was sitting on his 'Jagali ', accused called him and at the instance of his mother, he went near the accused. He enquired the accused about missing of his watch as he lost his watch about one week back. At that time, accused abused the complainant as under:

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"¤ªÀÄäªÀÅ£ÁPÉAiÀiÁ, ¤£ÀßvÁ¬Ä£ÁPÉAiÀiÁ, ¤£Àß ºÉArÛ£ÁPÉAiÀiÁ, ºÉÆ¯ÉAiÀiÁ £À£Àß ªÀÄUÀ£ÉÃ, £ÀªÀÄä ªÀÄ£ÉAiÀÄ¯ÉèÃ C£Àß wAzÀÄ £À£ÀUÉÃ ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄwÛÃAiÀiÁ"

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When complainant requested not to abuse him,

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accused caught hold his collar, took stone and assaulted on his face. Complainant fell down, sustained head injury.

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By that time, CW.4 came to rescue the complainant, so

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also his mother. Because of the injury so sustained by him, he lost his conscious. He was taken to K.R.Hospital, Mysuru and in the said hospital doctor treated him and sutured his lips where he had sustained cut injury. Police came to the hospital and recorded his statement as per Ex.P1. He identified MO No.1, the stone used to assault him.

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This PW.1 was thoroughly and intensively cross-

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examined by the defence. The only defence of the accused is that, when the said incident took place, the complainant was fully intoxicated and he was sent by CW.3 and 4 to ask for a watch. When complainant enquired about the watch, at that time, accused told that, as he is intoxicated come tomorrow. Even then, at the instance of CW.3 and 4, the complainant stood there itself by abusing the accused. Accused tolerated all the acts of the complainant. It is suggested that, if accused fails to return the watch, he said that, by using the blade, he will cut his neck and by

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saying so, the complainant assaulted the accused on his chest by swaying the blade. To show that, the accused has really sustained injuries as suggested, except the bald suggestions, no evidence is placed on record by the accused. It is denied that, complainant himself has sustained injuries because of his intoxication. All these suggestions so directed to him are denied by him in material particulars. Likewise PWs.2,3 and 9 in their respective evidence consistently stated about their presence when the incident took place and abusing of the complaint by the accused as stated supra. Though these witnesses are directed with searching cross-examination

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by the defence, but, nothing worth is elicited from their mouth to disbelieve their examination-in-chief. Throughout their cross-examination, they are consistent about the incident that has taken place. There may be minor contradictions in the cross-examination, but, they will not go to the root of the matter.

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It is suggested about assault by the accused. Thereby defence admit the presence of both complainant and accused at the scene of offence on the date and time of the incident. Though the defence of assault of accused is taken, it is not substantiated properly. Non-explanation of injuries sustained by the accused on the day gives room to draw an adverse inference against accused.

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PW.2 the mother of the complainant consistently speaks about the said incident on the said day. The scene of offence is quite near to the house of complaint. Further, eye witnesses stated supra consistently supported the prosecution.

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PW.3 Bagegowda specifically states that, on

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28.03.2011, at 6.00 pm. he was moving on the street and at that time, he noticed the presence of CW.3 near the

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scene of offence and there was galata in between complainant and accused and there were exchange of abusive words between them. Though it is elicited that,

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there was galata between his family and accused but, he is consistent in his evidence throughout that, about the incident that he has seen. No animosity or ill-will in between accused and PW.3 is established in the crossexamination directed to PW.3.

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PW.9 being eye-witness to the said incident is specific. He has written the complaint lodged by the complaint. There is consistent evidence of these eye witnesses about the incident as narrated by PW1 which support the case of prosecution in material particulars.

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PW.4 Narasimha is spot pancha before whom panchanama was conducted by the police as per Ex.P2 and MO No.1 was seized by the police. There is no effective cross-examination directed to this witness by the prosecution thereby presence of this PW.4 when the panchanama was prepared as per Ex.P2 is duly proved by the prosecution.

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PW.5 Dr.H.S.Prakash had come before the trial

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Court to state that, at 11.30 p.m on 28.03.2011, the complainant was brought to his hospital with history of assault on him. He treated him. He further states that the PSI attached to Melukote P.S. came and recorded his statement with his permission and also put his signature as per statement on Ex.P1. Though this PW.5 is crossexamined at length, but, he being treated doctor of the complainant is consistence about contention of complaint and wound certificate issued by him. The evidence of doctor is not denied specifically in the cross-examination. No suggestion that complainant was brought to the hospital when he was in fully intoxicated.

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PW.6 is another pancha too supports the case of the prosecution. Thus, PWs.4 and 6 are consistent about preparation of pachanama as stated supra and their evidence has to be accepted to prove that, they acted as panchas. PW.7 T . Venkatesh specifically speaks that, on the direction of PSI, he went to K.R.Hospital, Mysuru, took

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the permission of PW.5 and recorded complainant's statement. Based upon that, a complaint was registered. Recording of statement in the hospital by PW7 of this complainant is not denied by the defence.

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PW.8 Larence the charge sheeting officer. Though, this PW.8 has been cross-examined, he is consistent in his evidence that, this accused has committed the offence as stated in the charge sheet. Nothing worth is elicited to disbelieve his evidence.

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On going through the entire text of evidence spoken to by the witnesses, it is duly proved that, a scene

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of offence is a public place where the offence has taken place. It was under public view and ingredients of offence under Section 3(1)(x) have been spoken to by PW.1. PW.2, PW.4 and PW.9 have supported the case of the prosecution with regard to intentional insult of the complainant with an intent to humiliate the member of the

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SC by taking the name of the caste of the complainant as

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stated supra.

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The wound certificate shows that, the

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complainant had sustained the simple injuries and he was accordingly treated by PW.5. This fact of treatment taken by the complainant at K.R. Hospital is not denied by the defence.

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On reading the entire evidence, as rightly observed by the trial Court using a caste name with an intent to insult is highly objectionable and even by calling a person by his caste name amounts to insult which attracts the provisions of Section 3(1) (x) in this case of SC and ST (POA ) Act, 1989. The learned trial Court has relied upon judgment of Apex Court in course of writing judgment.

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Thought the learned counsel for the appellant tried to point out the contradictions, no contradictions are brought on record which would falsify the case of the

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prosecution. The very incident is admitted by the defence.

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Eye-witnesses stated supra have specifically stated about the illegal acts of the accused as they have stated before the police and before the Court. Thus, considering evidence placed on record, it can be stated that, the appellant accused has failed to prove that evidence of witnesses examined have to be disbelieved. There is positive, satisfactory and sufficient evidence to prove the ingredients of the offence alleged against the accused.

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Therefore, I do not find any factual or legal error committed by the trial Court in convicting the accused. The learned trial Court has rightly found the accused guilty for the aforesaid offences.

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So far as sentence is concerned, for the offence under SC & ST (POA) Act, the learned trial Court has imposed sentence of one year simple imprisonment and fine of Rs.1,000/- with default sentence and for other offences also one year and pay a fine of Rs.1,000 each for

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the said offences. The incident has taken place in the year 2011. The impugned judgment was passed in the year 2014 and now we were in 2025. For all these years, this appellant must have suffered this litigation. Therefore, in view of the age of this case as well as the gravity of the offence, if the accused is sentenced to Simple imprisonment for 6 months for the offence under Section 3(1)(x) of SC and ST (POA) Act, and also for the offence under Section 324 of IPC if the sentence is reduced to six months, it would meet the ends of justice. So far as sentence imposed for the offence under Section 323 of IPC is concerned, it remains unaltered.

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With this view, the aforesaid point is answered against the appellant and in favour of the prosecution inpart. Resultantly, I pass the following:

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ORDER

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(i) Appeal is allowed-in-part .

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(ii) Judgment of conviction and order of sentence dated 14.03.2014 passed by the

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I Additional District and Sessions Judge,

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Mandya, in Spl.C.No.31/2011, is set aside.

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(iii) Conviction of the accused for the offence punishable under Sec.3(1)(x) of SC and ST (POA) Act and Section 324 of IPC is hereby confirmed.

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(iv) However, there shall be modification of

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the sentence as under:

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(a) The accused shall undergo simple imprisonment for a period of six months for the offence punishable 3(1)(x) of SC and ST (POA) Act, 1989.

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(b) The accused shall undergo simple imprisonment for a period of six months for the offence punishable under Section 324 of IPC.

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(c) So far as sentence imposed for the offence punishable under Section 323 of IPC is concerned, it remains unaltered.

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(d) All the sentences shall run concurrently.

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(e) So far as imposition of fine for the aforesaid offences by the trial Court and award of compensation remain unaltered.

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(f) The accused shall surrender before the trial Court within fifteen days from the date of this judgment to undergo sentence. The trial Court shall secure the presence of the accused and commit him to prison in accordance with law.

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(g) Operative portion of this judgment be sent to the trial Court forthwith by mail for reference and necessary action.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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SK, List No.: 1 Sl No.: 28

Krishne Gowda v. State of Karnataka by

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Krishne Gowda v. State of Karnataka by

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