Partly allowed

Sharli v. State of Kerala

Kerala HC29 Aug 2016CRL.A/416/2009

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal in part. It upheld the conviction for offenders under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, and IPC Sections 294(b) and 506(ii). However, the High Court reduced the rigid imprisonment sentences to simple imprisonment on the grounds of leniency.

What did the court decide?

Conviction maintained; sentences reduced to simple imprisonment for three months (S. 294(b)), six months (S. 506(ii)), and six months (S. 3(1)(x) Act) with fines.

Sharli Vs State of Kerala — Caste Atrocities | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

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CRL.A.No. 416 of 2009

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SC 45/2005 OF SESIONS COURT, KALPETTA DATED 20-01-2009

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APPELLANT(S)/ACCUSED:

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SHARLI, S/O. SUKUMARAN, PULIKKAL HOUSE, SUDHIKAVALA, PADICHIRA AMSOM.

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BY ADV. SRI.M.T.BALAN

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RESPONDENT(S)/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY SPECIAL MOBILE SQUAD DY.S.P MANANTHAVADY, THROUGH THE PUBILC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SENIOR PUBLIC PROSECUTOR SRI.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 416 of 2009 ............................................................... Dated this the 29^th day of August, 2016

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J U D G M E N T

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The appellant is the accused in S.C.No.45/2005 of the Special Court/Sessions Court, Wayanad at Kalpetta, who stands convicted under Section 294(b) and 506(ii) of the Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act 1989(for short 'the Act') and sentenced to undergo rigorous imprisonment for three months and to pay a fine of ₹500/-, in default, to undergo rigorous imprisonment for two weeks under Section 294(b), rigorous imprisonment for two years and to pay a fine of ₹2,000/-, in default, to undergo rigorous imprisonment for six months under Section 506(ii) IPC and rigorous imprisonment for one year and to pay a fine of

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₹1000/- in default, to undergo rigorous imprisonment for three more months for the offence punishable under Section 3(1)(x) of the Act. The substantive sentences of

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imprisonments are ordered to run concurrently. Set off has also been granted under Section 428 Cr.P.C. The prosecution case is as follows:

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On 18.06.2004 at 1.45 p.m., the accused who belongs to Hindu Ehava community, had intimidated and threatened PW2 Forester of Kurichiyattu Range Vandikkadavu Section and abused him in filthy language by using obscene words. It is alleged that the accused had threatened PW2 by saying that he would be shot dead and that he had a gun with him. He further abused and intentionally insulted and intimidated PW4 Forest Guard, who is a member of the Kattunayakan community , which is a scheduled tribe, by calling his caste name and also abused him in filthy language by using obscene words, within public view. It was also alleged that the accused had used criminal

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force to deter PW2 and PW4, who are public servants, with a view to deterring them from the discharge of their official duties.

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On the basis of Ext.P1 first information statement furnished by PW2 before the Sub Inspector of Police, Pulpally, he registered Crime No.189/2004 of the Pulpally Police Station for the offence under Sections 294B, 353 and 506(ii) IPC and Section 3(1)(x) of the Act. PW14 Deputy Superintendent of Police, Wayanad took over the investigation. He completed the investigation and filed the final report alleging the aforesaid offences.

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On the side of prosecution, PWs.1 to 14 were examined and Exts.P1 to P7 were marked. On the side of the accused, Exts.D1 series and D2 were marked. After the prosecution evidence, the prosecution and the accused were heard. Since there were no grounds to acquit the accused under Section 232 Cr.P.C., the accused was called upon to enter on his defence. No defence evidence was

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adduced. The court below, after hearing both sides, found the accused guilty of the offences punishable under Sections 294B and 506(ii) IPC and Section 3(1)(x) of the Act, convicted him thereunder and sentenced him as aforesaid. The court below acquitted the accused for the offence under Section 353 IPC.

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Heard the learned counsel for the appellant and the learned Public Prosecutor.

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The learned counsel for the appellant has argued that apart from the interested testimony of the Forest officials, there is no independent evidence to incorporate an offence under Section 3(1)(x) of the Act. It has also been argued that two independent witnesses who were examined as PW5 and PW9 by the prosecution have not supported the prosecution case with regard to the offence under Section 3(1)(x) of the Act. It has also been argued that there was inordinate delay in furnishing the first information statement and the explanations offered for the delay is not

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believable. It has been further argued that the prosecution has not adduced any evidence to show that the accused were aware of the caste of PW4 and therefore, it could not have stated that the accused called the caste name of PW4 with intent to insult or humiliate PW4, in public view.

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On a perusal of the statement in writing furnished

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by the accused when he was examined under Section 313 Cr.P.C., he has a case that he had complained to PW2 with regard to the mischief committed in his property by the elephants on the previous day, which resulted in a wordy altercation between them. According to him, apart from that, nothing had occurred. He has also stated that he was not aware of the caste identity of PW4 at that point of time.

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PW1 was the Assistant Wild Life Warden of the Kurichiyattu forest range during the period in question. According to him, PW2 was engaged by him to investigate the case of elephant poaching involved in OR 11/2004 and consequently PW2 and party were engaged in a combined

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operation for tracing out the accused in the case. While so, PW2 and party had complained before him that the accused had threatened them with death and also abused them in filthy language and insulted PW4 who is a member of the scheduled tribe by calling his caste name. He directed PW2 to prefer a complaint at the Pulpally police station.

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PW2 has clearly deposed regarding the incident. According to PW2, the accused got furious and indiscriminately abused him as well as PW4 in filthy language by using obscene words. Over and above it, the accused attempted to attack him with two stones which were there in the hands of the accused. On that point, the learned counsel for the appellant has pointed out that such a version that the accused had attempted to attack PW2 with stones was not there in Ext.P1 first information statement. In Ext.P1 he has stated that the accused had approached him with two stones in his hands. Further, it has been clearly mentioned in Ext.P1 that the accused had

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criminally intimidated and threatened him with death. It is true that it has not been mentioned in Ext.P1 that the accused had attempted to attack him with the stones in his hand.

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PW2 has clearly deposed with regard to the obscene words used by the accused repeatedly. It seems that the said obscene words are sexually coloured remarks which could invite an offence under Section 294(b) IPC. Apart from that he has clearly deposed that the accused had uttered the caste name of PW4 openly in public view and had abused PW4 also in filthy language by using obscene words. He has deposed that the accused had uttered the caste name of PW4 as Kattunayakan. True that, PW2 was subjected to cross-examination at length. But, nothing could be brought out in order to discredit or disbelieve his testimony. PW2 has clearly explained the reason as to why the delay of two days had occasioned in furnishing the first information statement. He has clearly stated that when there was an

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attempt to deter the public servants including him from discharging the official duty, he had to obtain the permission from the higher-ups and he could furnish Ext.P1 only on getting permission from PW1.

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PW3 was the Reserve Forest Watcher as on the date of incident. He has also clearly deposed regarding the incident. He has fully supported the case of PW2 in all material particulars. PW4 has deposed that his caste name was uttered by the accused along with obscene words in public view and thereby he was insulted and humiliated. According to him, the incident had occurred in the nearest vicinity of a tea shop where a large number of the members of the public were present, and all of them could see and hear the incident. He has clearly deposed that he is a member of the Scheduled Tribe and he was recruited through special recruitment.

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PW5 and PW9 are two independent witnesses. PW5 was the tea shop owner. According to him, there had

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occurred an incident wherein obscene words were uttered by the accused towards PW2 and PW4. At the same time, he has stated that he did not hear the calling of caste name of PW4 by the accused. He was declared hostile and questions that could be put in cross-examination were put to him by the Public Prosecutor. PW9 was the ex-Panchayat member. He had almost supported the case narrated by the accused in his statement under Section 313 Cr.P.C. According to him, there occurred a wordy altercation between PW2 and the accused and nothing more had occurred. He was also declared hostile by the prosecution and questions that could be put in cross-examination were put to him.

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PW10, who was also an elephant poaching watcher had supported the prosecution case. He has supported the case forwarded by PW2 and PW4. PW11, who was another elephant poaching watcher has also supported the case of PW2 and PW4.

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PW13 was the Sub Inspector of Police Pulpally,

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who recorded Ext.P1 furnished by PW2 and registered Crime No.189/2004 through Ext.P1(a) FIR. PW14 Deputy Superintendent of Police, Wayanad conducted the investigation and filed the final report. He had procured the caste certificate of PW4 as well as the accused. PW6 was the Tahsildar, Mananthavady who has issued the caste certificate of PW4. He proved Ext.P3 caste certificate and deposed that PW4 is a member of the Scheduled Tribe named Kattunayakan. PW7 was the Village Officer, Padichira, who issued Ext.P4 caste certificate of the accused, which shows that the accused belongs to Hindu Ezhava community.

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The evidences of PW2, PW3, PW4, PW10 and PW11 regarding the incident are consistent versions. The incident as such stands proved. At the same time, there is no evidence to invite an offence under Section 353 IPC in the matter, since there is nothing to show that the accused

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had assaulted any of the forest officials or he had used criminal force to deter them from discharging their official duty. The court below has rightly acquitted the accused for the offence punishable under Section 353 IPC.

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Regarding the delay of two days in furnishing the first information statement, proper explanation has been offered by PW2, which is proved by PW1. There is absolutely nothing to disbelieve PW2 regarding the same. The said delay of two days, has been clearly explained. Regarding the argument that the accused was not aware of the caste of PW4 as on the date and time of the incident, it has to be noted that the accused was involved in a series of forest offences earlier. It cannot be said that he had no acquaintance with the forest officials. It is for him to prove that he was not aware of the caste name of PW4. The prosecution cannot prove that the accused was aware of the caste name of PW4. When it has been specifically contended by the accused that he was not aware of the

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caste name of PW4, it was for the accused to prove that aspect.

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Regarding the independent evidence of PW5 and

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PW9, it seems that PW9 has turned hostile to the prosecution and has supported the case of the accused. At the same time, PW5 tea shop owner has almost supported the prosecution case except the calling of caste name by the accused. At the same time, when the versions regarding calling of caste name by the prosecution witnesses who were cited and examined as occurrence witnesses are consistent, there is absolutely nothing to disbelieve the prosecution case.

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On an over all analysis, it is evident that the prosecution could clearly prove that the accused has committed offences punishable under Sections 294(b) and 506(ii) IPC and also under Section 3(1)(x) of the Act. Therefore, there is absolutely nothing to interfere with the conviction passed by the court below.

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Regarding the sentence, the learned counsel for the appellant has sought for the leniency of this Court in the question of sentence. The court below has imposed a sentence of rigorous imprisonment for one year and to pay a fine of ₹1,000/-, in default, to undergo rigorous imprisonment for three more months for the offence punishable under Section 3(1)(x) of the Act. This Court is of the view that the said sentence is on the higher side. In the absence of any previous conviction of the accused, the said sentence can be brought down to the minimum prescribed as per the Act. This Court is of the view that a sentence of simple imprisonment for six months and to pay a fine of ₹ 1,000/-, in default, to undergo simple imprisonment for two more months for the offence punishable under Section 3(1) (x) of the Act, and also the very same sentence for the offence under Section 506(ii) IPC, will meet the ends of justice in this case. Similarly, the substantive sentence of rigorous imprisonment imposed by the court below as well

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as the default sentence of rigorous imprisonment imposed by the court below under Section 294(b) IPC can also be altered as simple imprisonment.

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In the result, this Criminal Appeal is allowed in part by maintaining the conviction and modifying the sentence as follows:

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“The appellant is sentenced to undergo simple imprisonment for three months and to pay a fine of ₹500/-, in default, to undergo simple imprisonment for two weeks under Section 294(b), simple imprisonment for six months and to pay a fine of ₹1000/- in default, to undergo simple imprisonment for two more months for the offence punishable under Section 506(ii) IPC and simple imprisonment for six months and to pay a fine of ₹1000/- in default, to undergo simple imprisonment

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for two more months for the offence punishable under Section 3(1)(x) of the Act”. All the substantive sentences of imprisonments shall run concurrently. The appellant is entitled to set off, of the period of detention, if any, undergone by him in connection with the investigation, inquiry and trial of this case, under Section 428 Cr.P.C.

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ul/-

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Sd/- B. KEMAL PASHA, JUDGE. // true copy //

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P.S. to Judge.

Sharli v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sharli v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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