Jayanna Vs State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV., FOR THE APPELLANTS PRAYING TO SET ASIDE THE ORDER DATED:26.12.12 PASSED BY THE ADDL. DIST., AND S.J., CHITRADURGA IN SPL.C.NO.13/11 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 427, 323, 506 R/W SEC. 34 OF IPC AND SEC.3(1)(x) OF SC/ST (PA) ACT, 1989 AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. M. Shashidhara, learned counsel for the appellant and learned High Court Government Pleader.

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Accused who has suffered an order of conviction

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in Special Case No.13/2011 on the file of the Additional District and Sessions Judge, Chitradurga by judgment dated 26.12.2012 for the offences punishable under the provisions of 427, 323, 506 read with Section 34 of IPC

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and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 for (for short SC/ST (POA) Act, 1989) has preferred this appeal.

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The facts in brief, which are utmost important for disposal of the present appeal are as under:

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A complaint came to be lodged on 16.05.2011 with Chitradurga Rural Police Station by the complainant contending that he is the neighboring land owner of the accused and he had dug a borewell in his land and had grown ragi crop in his land. On 12.05.2011, the accused persons let in their cattle (20 in number) to the land of the complainant. The grown up ragi crop to an extent of 1 1/2 acres was eaten away by the cattle. The complainant

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said to have gone to the land of accused No.1 and enquired as to why he let the cattle free and damage has been caused to grown up ragi crop. At this juncture, accused No.1 said to have quarreled with the complainant by abusing the complainant in filthy language taking out

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his caste name. The son of the complainant came and pacified the quarrel. The complaint averments further reveals that about six months earlier to the said incident, accused No.1 wanted to dig a bore well in his land and wanted to have electricity connection through the electricity line of the accused illegally, which he had prevented and from that day onwards accused had nurtured enmity with the complainant.

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Thereafter, the complainant said to have captured the cattle belonging to accused No.1 and took them near his house and tied them near his house. On the same day at about 7.30 pm, all the accused persons came near the house of the complainant and picked up a quarrel and abused him in filthy language so as to degrade in the public view and demanded for the cattle to be let free. Altercation took place and there were abuses hurled to the complainant party by the accused person taking out their caste name so as to degrade them in public view. Accused No.3 – Bhagyamma picked up the quarrel with

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the women folk of the accused party and younger brother of the complainant and his wife Rangamma came and pacified the quarrel and was brought to the notice of the elders of the villagers.

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Reporting such incident that took place on 12.05.2011, the complaint came to be lodged on 16.05.2011. Based on the same, Chitradurga Rural Police registered a case and after thorough investigation, filed charge sheet against the accused for the aforesaid offences.

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Presence of the accused persons was secured by the learned Sessions Judge and thereafter charges were framed.

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The accused party pleaded not guilty and therefore trial was held.

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In order to prove the guilt of the accused, the prosecution in all examined 9 witnesses comprising of complainant, spot mahazar witnesses and one

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independent witness by name Obalesh and two of the officers of the investigating agency.

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On behalf of the prosecution, 10 documents were marked as per Exs.P1 to P10, comprising of complaint, spot mahazar (two in number), photocopy of the photographs, statement of PW-7, Caste certificate of the accused, FIR and rough sketch of place of incident.

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On conclusion of the recording of evidence, learned Special Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C, wherein the accused persons have denied the incriminatory circumstances but failed to place their version on record in writing as is contemplated under Section 313(4) of Cr.P.C. Defense did not place any evidence on record except marking a Paani as Ex.D1 from the Court records.

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Thereafter, learned Sessions Judge heard the

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parties in detail and by judgment dated 26.12.2012 convicted the appellants for the aforesaid offences and sentenced as under:

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1. The accused No.1 – Jayanna S/o Mahalingappa, aged about 55 years, Occ: Agriculture, R/o Agriculture, R/o Kurumaradikere Village, Chitradurga Taluk, accused No.2 – Ramesh S/o Jayanna, aged about 25 years, Occ: Agriculture R/o Kurumaradikere Village, Chitradurga Taluk, accused No.3- Bhagyamma W/o Shivanna, aged about 45 years, Occ: Coolie, Agriculture, R/o Kurumaradikere village, Chitradurga Taluk, accused No.4 – M.C. Somashekhar S/o Channa Basappa, aged about 39 years, Occ: Agriculturist, R/o Yennegere Village, Chitradurga Taluk shall undergo simple imprisonment for a period of two years and shall pay fine amount of Rs.1,000/- each by all the accused for the offences punishable under Section 427 read with Section 34 of IPC.

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2. Further, the accused Nos.1 to 4 above stated shall undergo simple imprisonment for a period of one year and shall pay fine amount of Rs.1,000/- each, by all the accused for the offence punishable under Section 323 read with Section 34 of IPC.

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3. Further, the accused Nos.1 to 4 above stated shall undergo simple imprisonment for a period of two years and shall pay fine amount of Rs.1,000/- each, by all the accused for the offence punishable under Section 506 read with Section 34 of IPC.

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4. Further, the accused Nos.1 to 4 above stated shall undergo simple imprisonment for a period of three years and shall pay fine amount of Rs.1,000/- each, by all the accused for the offence punishable under Section 3(1)(x) of SC/ST (POA) Act, 1989.

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5. In default to pay fine amount above stated, all the accused shall further undergo simple imprisonment for a period of three months.

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6. Out of the fine amount awarded as above, a sum of Rs.15,000/- shall be paid to the PW-1 – Complainant – S.R. Thippeswamy as compensation.

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7. All the substantive sentences shall run concurrently.

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Being aggrieved by the same, appellants are before this Court.

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Sri. M. Shashidhara, learned counsel for the appellants reiterated the appeal grounds contended that the approach and appreciation of the material evidence on record by the learned Sessions Judge in the Court below is up against the settled principles of law under the criminal jurisprudence resulting in miscarriage of justice and sought for allowing the appeal.

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He further pointed out that mahazar witnesses and other witnesses are close relatives of the complainant and the sole eye witness to the incident is PW-7 – Obalesh, who turned hostile to the case of the prosecution except deposing before the Court that there was a oral altercation and he has pacified the same. Therefore, the learned trial Judge ought not to have convicted the appellants for the aforesaid offences and sought for allowing the appeal.

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He also pointed out that to record an order of conviction under the provisions of SC&ST(POA) Act, 1989, the prosecution has to establish that the accused party have abused the complainant by taking out their caste name so as to insult and degrade them in public view. Such an evidence is not available on record inasmuch as there is no independent witness, who has deposed before the said aspect of the matter.

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He also points out that the investigation officer did enquire the inmates of the houses, which was situated in and around the house of the accused No.1 but failed to cite them as prosecution witnesses, which exposes the hollowness in the case of the prosecution and sought for allowing the appeal.

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Alternatively, Sri. M. Shashidhara learned

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counsel for the appellants contended that in the event this Court upholding the validity of the impugned judgment,

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the conviction for the offences under Section 3(1)(x) of SC/ST (POA) Act, 1989, set aside for want of evidence and

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for remaining offences, this Court may set aside the imprisonment period and by enhancing the fine amount reasonably.

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Per contra , Sri. Rahul Rai K, learned High Court Government Pleader, supports the impugned judgment by contending that admittedly the incident has occurred on 12.05.2011 in the morning and in pursuance of the said incident, again all the accused persons assembled near the house of the complainant and picked up a quarrel at 7.30 p.m. on the same day. At that juncture, they have again abused the complainant party by using filthy language by taking the caste name so as to degrade them in the public view, which has been properly established by the prosecution and therefore, sought for dismissal of the appeal.

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In so far as the alternate submission is concerned, learned High Court Government Pleader contended that the material evidence sufficiently support

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maintaining the conviction of all the offences and therefore sought for dismissal of the appeal in toto.

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Having heard the parties in detail, this Court perused the material on record meticulous, on such perusal of material record, the following points would arise for consideration:

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1. Whether the material evidence placed on record by the prosecution is sufficient enough to maintain the conviction of the offences under Section 323, 427 and 506 of IPC?

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2. Whether the appellants make out a case on legal infirmity and perversity in the findings recorded by the learned trial Judge in the impugned Judgment?

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3. Whether the sentence needs a modification?

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4. What Order?

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21. Regarding Point No.1 & 2:

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In the case on hand, admittedly, there is a belated complaint lodged in respect of the incident that has occurred on 12.05.2011. No proper explanation is

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forthcoming on record with regard to delay in lodging complaint.

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The material on record would indicate that accused No.4 was present in the 2^nd incident and when there was a demand for letting of the cattle, there is refusal by the complainant. At this juncture, accused No.4 said to have threatened the complainant by stating that if they do not let the cattle free they would file a complaint. At that juncture, altercation got aggravated and there were pushing on either side and assault by hand. Quarrel was pacified and later on the accused persons said to have given life threat and escaped away from the place of incident.

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PW-7 - Obalesh, is the only independent eye witness. He has deposed supporting the case of the prosecution partly. Though he has been treated as hostile by the learned Public Prosecutor and confronted the statement said to have been given before the investigation officer, in such cross-examination, the prosecution is

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unable to elicit any material, so as to attract the offence under Section 3(1)(x) of the SC/ST (POA) Act, 1989. Admittedly, punch witnesses are relatives of the complainants. Likewise, PW-4 to PW-6 are also close relatives of the complainant.

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Moreover, the original photographs of the spot mahazar is not filed by the Investigation officer and no explanation is forthcoming on record in that regard. Ex.D1 is the ROR extract pertaining to the land of the accused. It is collected by the investigating agency. The said document was part of the charge sheet material, which was confronted by the accused party in the crossexamination and got admitted as Ex.D1.

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On perusal of Ex.D1, it is crystal clear that the crop that is said to have grown on the land of complainant is groundnut and not ragi. If the ragi crop was not at all grown, cattle 20 in number going to the land of the complainant and grazing the grown up ragi crop would not arise ipso facto. Therefore, the investigation is

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perfunctory in nature. The investigating officer did not choose to place the original photographs only on the ground that, if the original photographs are placed on record, the Court would make out that the crop that is grown is not ragi and it is the ground nut. Therefore, for want of necessary evidence, the trial Court ought not to have convicted the appellants for the offence under Section 3 (1) (x) of SC/ST (POA) Act, 1989, as there is no incident as is enunciated by the complainant as taken place in the morning on 12.05.2011.

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However, with regard to the retaining the cattle belonging to the accused, there was an altercation that took place on 12.05.2011 at about 7.30 p.m. There again, the investigating officer, admits in his cross-examination that he did enquire the inmates of the houses situated in and around the house of complainant but failed to place those statements on record so as to establish the case of the prosecution that there was insult caused to the complainant party by the accused uttering the filthy words

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by taking the caste name of the complainant that too in the public view.

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In the absence of any such material on record,

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the trial Judge ought not to have convicted the accused party for the offence under Section 3(1)(x) of SC/ST (POA) Act, 1989

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However, the altercation that took place in the evening is established by the prosecution not only by examining the complainant but also from the examination of PW-7 (to the extent be supported prosecution case).

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Therefore, conviction of the appellants for the remaining offences needs to be maintained. In view of the foregoing discussion, point Nos.1 and 2 are answered Partly-in-the-affirmative.

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30. Regarding Point No.3:

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In view of the finding of this Court, point No.1 and 2 as above, the sentence needs a modification. For the remaining offences for which the conviction is maintained,

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there is no compulsory minimum imprisonment prescribed in statute.

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A trivial issue has been blown out of the

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proportion. Since the appellants are first time offenders, this Court is of the considered opinion that imposing the fine alone would meet the ends of justice as no one is physically hurt in the incident. Therefore, point No.3 is answered partly in the affirmative.

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32. Regarding Point No.4:

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In view of the finding of this Court regarding point No.1, 2 and 3, the following:

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ORDER

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(i) Appeal is allowed in part.

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(ii) While maintaining the conviction of

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the appellants for the offences under

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Section 427, 323 and 506 read with

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Section 34 of IPC, the appellants are

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*acquitted for the offence under

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*Corrected vide court order dated 12.02.2025

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Section 3(1)(x) of SC/ST (POA) Act,

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(iii) *The imprisonment ordered by the Trial Judge for the offence punishable under Sections 323, 427 and 506 read with Section 34 of IPC is ordered to be set-aside. The appellants are directed to pay enhanced fine of Rs.5,000/- each for the offences under Section 323, 427 and 506 read with Section 34 of IPC (exclusive of the fine imposed by the trial Judge). The fine amount shall be paid on or before 28.02.2025, failing which, the appellants shall undergo simple imprisonment for a period of six months.

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(iv) Out of the enhanced fine amount, the

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complainant is entitled to compensation in a sum of Rs.10,000/in addition to the compensation amount already awarded by the learned trial Judge in the impugned judgment.

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*Inserted vide court order dated 12.02.2025

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