Basavaraju and another - Appellants @HASH State of Karnataka

H. Billappa, J. - This appeal by the appellants-accused 1 and 2 is directed against the judgment and order dated 24-12-2009 passed by the VI Additional District and Sessions Judge, Mysuru, in Spl. Case No. 61 of 2008.

By the impugned judgment and order, the Trial Court has convicted the appellants-accused 1 and 2 for the offence punishable under Section 3(1)(x) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Sections 323,324 and 506 read with Section 34 of Indian Penal Code, 1860. For the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989, the appellants have been sentenced to undergo simple imprisonment, for a period of six months and to pay a fine of Rs. 1,000/- each and in default of payment of fine, to undergo S.I. for a period of one month. For the offence punishable under Section 323 of IPC, the appellants have been sentenced to pay a fine of Rs. 500/- each and in default of payment of fine, to undergo S.I. for a period of one month. For the offence punishable under section 324 of IPC, the appellants have been sentenced to undergo S.I. fora period of six months. For the offence punishable under section 506 of IPC, the appellants have been sentenced to undergo S.I. for a period of six months.

Aggrieved by that, the appellants-accused 1 and 2 have filed this appeal.

Briefly stated the case of the prosecution is as follows:

That on 8-6-2008, at about 7.00 p.m., P.W. 2-Somaiah went near the house of P.W. 3-Shivamma and asked for coolie amount. P.W. 3 told P.W. 2 that she is preparing tea and asked P.W. 2 to stay for sometime. At that time, A1-Basavaraju and A2-Mallikarjuna went near the house of P.W. 3-Shivamma and asked P.W. 2 as to why he has come near the house of P.W. 3 at that time. P.W. 2 told them, to collect the coolie amount. Suddenly, A1-Basavaraju and A2-Mallikarjuna abused P.W. 2 saying "VERNACULAR MATTER". Further, the accused told P.W. 2 "VERNACULAR MATTER". Thereafter, A1 and A2 abused P.W. 2 in a filthy language and told, if P.W. 2 is finished, it would be alright. So saying A1 and A2 assaulted P.W. 2 with the reapers. As a result of that, P.W. 2 sustained bleeding injuries. P.W. 3 intervened asking the accused persons not to assault P.W. 2. A1 and A2 assaulted P.W. 3 with their legs. At that time, P.W. 7 intervened and pacified the quarrel. It is alleged, A1 and A2 assaulted P.W. 2 with ulterior motive that P.W. 2 has illicit relationship with P.W. 3. Further, A1 and A2 abused P.W. 2 taking his caste name and assaulted with the reapers intending to kill him. Based on the statement of P.W. 2, as per Ex. P.3, a case in Cr. No. 157 of 2008 of Bilikere Police Station has been registered for the offence punishable under Sections 307 and 323 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989.

After investigation, charge-sheet has been filed for the offences punishable under Sections 323, 324 and 506 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989.

At the trial, the prosecution has examined in all nine witnesses i.e., P.Ws. 1 to 9 and Exs. P. 1 to P. 9 and M.Os. 1 and 2 have been marked.

On behalf of the defence, no evidence has been adduced.

The Trial Court on appreciation of the evidence on record has held that the appellants are guilty of the offence punishable under Sections 323, 324 and 506 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989 and sentenced the appellants as stated in para 2.

Aggrieved by that, the appellants-A1 and A2 have filed this appeal.

The learned Counsel for the appellants contended that the impugned judgment and order cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that the incident has not occurred in public dew and there is no evidence on record to sustain conviction for the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989. There is nothing on record to show that the incident has occurred in public view. Therefore, the Trial Court was not justified in convicting the appellants for the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989. Further he submitted that the evidence of P.Ws. 2 and 3 is inconsistent and P.W. 7 who is an independent witness has not supported the prosecution case. Therefore, the Trial Court was not justified in convicting the appellants for the offence punishable under Sections 323,324 and 506 read with Section 34 of IPC and Section 3(1s)(x) of SC and ST (POA) Act, 1989. If any reason, this Court holds that the appellants have assaulted P.Ws. 2 and 3, a reasonable fine may be imposed.

As against this, the learned Government Pleader submitted that the impugned judgment and order does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly convicted the appellants for the offence punishable under Sections 323,324 and 506 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989. Therefore, the impugned judgment and order does not call for interference. He also submitted that P.Ws. 2, 3 and 7 have supported the prosecution case. The Doctor has deposed regarding the injuries sustained by P.Ws. 2 and 3. The material on record clearly establishes the guilt of the accused. Therefore, the Trial Court was justified in convicting the appellants for the offences punishable under Sections 323, 324 and 506 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989. Therefore, the impugned judgment and order does not call for interference.

I have carefully considered the submissions made by the learned Counsel for the parties.

The point that arises for my consideration is:

Whether the Trial Court was justified in convicting the appellants i.e., A1 and A2 for the offence punishable under Sections 323, 324 and 506 read with Section 34 of IPC and Section 3(1)(x) of SC and ST (POA) Act, 1989?

The case of the prosecution is that on 8-6-2008, at about 7.00 p.m., P.W. 2-Somaiah went near the house of P.W. 3 and asked for coolie amount. At that time, A1 and A2 went there and abused P.W. 2 taking his caste name and assaulted him with the reapers. When P.W. 3 intervened, A1 and A2 assaulted P.W. 3 also. Thereafter, P.W. 7 intervened and pacified the quarrel.

P.W. 2 has deposed that on the date of the alleged incident at about 7.00 p.m. he went near the house of P.W. 3-Shivamma and asked for the coolie amount. P.W. 3 asked P.W. 2 to stay for sometime as she is preparing tea. At that time, the appellants i.e., A1 and A2 went near the house of P.W.3, They questioned P.W. 2 as to why he has gone near the house of P.W. 3. P.W. 2 told A1 and A2 that it is to collect the coolie amount. The appellants saying that it is not to collect the coolie amount but to romance with P.W. 3, dragged P.W. 2 and assaulted him with the reapers saying that he has illicit relationship with P.W. 3-Shivamma. It is stated, both A-1 and A-2 assaulted P.W. 2 with the reaper. Thereafter, P.W. 3-Shivamma was also assaulted by A1 and A2. P.W. 2 has identified M.Os. 1 and 2. He has stated that the accused abused him taking his caste name. After the incident, he was taken to the hospital at Hunsur and he took treatment there. His statement was recorded as per Exs. P. 3 and P. 3(b) is his signature.

In the cross-examination of P.W. 2, nothing is elicited to disbelieve the evidence of P.W. 2.

Similarly, P.W. 3 has deposed that on the date of the alleged incident at about 7.00 p.m., P.W. 2 went near the house of P.W. 3 to ask for the coolie amount. P.W. 3 asked P.W. 2 to take tea. At that time, A1 and A2 i.e., the appellants went near the house of P.W. 3 and abused P.W. 2 saying ''VERNACULAR MATTER''. When P.W. 2 told the accused persons that he went near the house of P.W. 3 to ask for the coolie amount, A1 abusing P.W.2 assaulted him with the reaper. So also A2 assaulted P.W. 2 with the reaper. P.W. 3 and P.W. 7 tried to pacify the quarrel. At that time, the accused assaulted P.W. 3 also. Thereafter, P.W. 2 was taken to Hunsur Hospital. P.W. 3 also went to Hunsur Hospital and took treatment. P.W. 3 has identified M.Os. 1 and 2.

In the cross-examination of P.W. 3, nothing is elicited to disbelieve the evidence of P.W. 3.

P.W. 7 is an eye-witness. He has deposed regarding the incident. But, he has stated that he did not see the accused assaulting P.W. 2 or P.W. 3. His evidence shows that the incident has occurred.

P.W. 1 is the Doctor. He has examined P.W. 2. He has deposed that P.W. 2 was brought by one Puttaswamy with the history of assault by A1 and A2. On examination, he noticed the following injuries:

Lacerated wound on the left eyebrow measuring 4x2 cms.

Abrasion on left cubital fossa measuring 2x2 cms.

Lacerated wound on the vertex of the head measuring 3x2 cms.

He has stated that the injuries are simple in nature. Ex. P. 1 is the wound certificate. The doctor has stated that reapers like M.Os. 1 and 2 could cause injuries sustained by P.W. 2. Further, he has stated that one Dr. Suresh had issued wound certificate of Shivamma. It is Ex. P. 2. Fie has identified the signature of Dr. Suresh as Ex. P. 2(a). He has also identified the signature of Dr. Suresh in Ex. P. 3. He has stated, Dr. Suresh was working with him and therefore, he has identified his signature.

Ex. P. 1 is the wound certificate of P.W. 2-Somaiah. It shows that P.W. 2 had sustained three injuries:

Lacerated wound on the left eyebrow 4x2 cms.

Abrasion on left cubital foss measuring 2x2 cms.

Lacerated wound on the vertex of the head measuring 3x2 cms.

The injuries are simple in nature.

Ex. P. 2 is the wound certificate of P.W. 3. It shows that P.W. 3 had sustained three injuries:

Tenderness over the scalp

Abrasion over the left forehead.

Tenderness over the left upper abdomen.

The injuries are simple in nature.

From the evidence of P.Ws. 1, 2 and 3 and Exhibits P. 1 and P. 2, it is clear, on the date of the alleged incident i.e., on 8-6-2008 at about 7.00 p.m., P.W. 2 went near the house of P.W. 3-Shivamma to ask for the coolie amount. At that time, A1 and A2 also went near the house of P.W. 3 and abused P.W. 2 saying that P.W. 2 went near the house of Shivamma to romance with her and not to ask the coolie amount and assaulted P.W. 2 with M.Os. 1 and 2. When P.W. 3 intervened, the appellants have assaulted P.W. 3 also. The wound certificates-Exs. P. 1 and P. 2 show that P.W. 2 has sustained three injuries which are simple in nature. So also P.W. 3 has sustained three injuries which are simple in nature. P.W. 2 is assaulted by A1 and A2 with the reapers M.Os. 1 and 2. There is no reason to disbelieve the evidence of P.Ws. 1, 2 and 3. It clearly establishes that A1 and A2 i.e. appellants herein have assaulted P.W. 2 with M.Os. 1 and 2 and P.W. 3 was assaulted by A1 and A2 with the legs. Therefore, the evidence on record clearly establishes that the appellants i.e., A1 and A2 are guilty of the offences punishable under Sections 323 and 324 of IPC.

Insofar as the offence punishable under Section 506 of IPC is concerned, in the complaint-Ex. P. 3, it is alleged that the accused abused P.W. 2 saying that P.W. 2 went near the house of P.W. 3-Shivamma to romance with her and not to ask the coolie amount and if P.W. 2 is finished, it would be alright. So saying A1 and A2 assaulted P.W. 2.

In his evidence P.W. 2 has stated that the accused persons abused him saying that he went near the house of Shivamma to romance with her and not to ask the coolie amount and so saying P.W. 2 was dragged. Further, the accused persons threatened to kill P.W. 2 saying that he is having illicit relationship with Shivamma i.e., P.W. 3. So saying the accused persons assaulted P.W. 2.

P.W. 3 Shivamma has stated that the accused abused P.W. 2 taking his caste name and assaulted.

The evidence on record clearly shows that the accused have threatened P.W. 2 and assaulted him saying that if he is finished, it would be alright. Therefore, the appellants i.e., A1 and A2 are guilty of the offence punishable under Section 506 of IPC.

Insofar as the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989 is concerned, the provision reads as follows:

"Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."

In the complaint-Ex. P. 3, it is alleged, that on 8-6-2008 P.W. 2 went near the house of P.W. 3 asking for coolie amount. At that time, P.W. 3 told P.W. 2 to stay for some time as she is preparing tea. At that time, A1 and A2 i.e. appellants herein went near the house of P.W. 3-Shivamma and abused P.W. 2 saying "VERNACULAR MATTER".

In his evidence P.W. 2 has not stated that the accused abused him saying "VERNACULAR MATTER".

However, P.W. 3 has stated that the accused abused P.W. 2 taking his caste name. There is no cogent evidence to show that the incident has occurred in public view. In the circumstances, it cannot be said that the appellants have committed an offence under Section 3(1)(x) of SC and ST (POA) Act, 1989. Therefore, the Trial Court was not justified in convicting the appellants-A1 and A2 for the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989.

Insofar as the offences punishable under Sections 323, 324 and 506 read with Section 34 of IPC is concerned, the Trial Court was justified in convicting the appellants-Al and A2 for the said offences. Therefore, the impugned judgment and order needs to be modified.

Accordingly, the criminal appeal is allowed in part. The impugned judgment and order passed by the VI Additional District and Sessions Judge, Mysuru, in Spl. Case No. 61 of 2008 is modified as follows:

The conviction of the appellants i.e., A1 and A2 for the offences punishable under Sections 323, 324 and 506 read with Section 34 of IPC is sustained and it is confirmed.

Insofar as the offence punishable under Section 3(1)(x) of SC and ST (POA) Act, 1989 is concerned, the conviction and sentence passed by the Trial Court is hereby set aside. The appellants i.e., A1 and A2 are acquitted of the charge under Section 3(1)(x) of SC and ST (POA) Act, 1989.

The sentence passed by the Trial Court for the offences punishable under Sections 323, 324 and 506 of IPC is modified as follows:

The appellants i.e., A1 and A2 are sentenced to pay a fine of Rs. 5,000/- each for the offence punishable under Section 323 of IPC and in default of payment of fine, the appellants shall undergo S.I. for a period of one month.

For the offence punishable under Section 324 of IPC, the appellants i.e., A1 and A2 are sentenced to pay a fine of Rs. 15,000/- each ana in default of payment of fine, the appellants shall undergo S.I. for a period of two months.

For the offence punishable under Section 506 of IPC, the appellants i.e., A1 and A2 are sentenced to pay a fine of Rs. 5,000/- each and in default of payment of fine, the appellants shall undergo S.I. for a period of one month.

Out of the fine amount, a sum of Rs. 25,000/- shall be paid to P.W. 2-Somaiah and a sum of Rs. 10,000/- shall be paid to P.W. 3-Shivamma.

Send back the LCR for further action.