Dharmanna, Prashant, Nagaraj and Mahesh vs State

Huluvadi G. Ramesh, J.—The accused are in appeal before this court aggrieved by the order passed by the II Addl. Sessions Judge, Gulbarga in Spl. Case 94/2009 on 2.9.2010 convicting them for the offence under S. 324 r/w 34, IPC and S. 3(1)(x) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. The Deputy Superintendent of Police, Aland Sub-Dvn., charge sheeted the accused for the offence under S. 504, 324 r/w S. 34, IPC and S. 3(1)(x) of the Special enactment arising out of Crime No. 51/2009 of Aland Police Station. One Machendra filed a complaint on 23.2.2009 stating that he and one Nagaraj/CW 4 went to the hotel of CW 5/Mumtaj for taking tea and at that time the accused persons were there. When the complainant invited the accused to have tea, the 1st accused abused him in a filthy language taking out the name of the caste and also caught hold of his shirt, dragged him out of the hotel, took a firewood lying there and assaulted on the head. The 2nd accused also assaulted the complainant on his head, the 3rd accused assaulted with firewood on the complainant''s back and 4th accused assaulted on his left elbow. When CW 4/Nagaraj came to rescue the complainant, he was also assaulted by the 4th accused with a firewood on his left arm. Hence, the complaint after framing charge, since the accused pleaded not guilty and claimed to be tried, the prosecution examined ten witnesses - PWs 1 to 10, got marked six documents and four material objects. Thereafter, the statement of the accused was recorded under S. 313, Cr.P.C. After hearing, the Special Judge has acquitted the accused of the offence under S. 504 and found them guilty of the offence under S. 324 r/w S. 34, IPC and S. 3(1)(x) of the SC/ST (Prevention of Atrocities) Act, 1989 and while convicting them for the above two offences, sentenced each of them to undergo simple imprisonment for a period of three months for the offence under S. 324 r/w S. 34, IPC and to undergo simple imprisonment for a period of six months and to pay fine of Rs. 1,000/- each and default sentence of two months imprisonment for the offence under S. 3(1)(x) of the SC/ST (Prevention of Atrocities) Act, 1989. It is also ordered both the sentences to run concurrently. Aggrieved by the said order, accused are before this Court.

Heard the counsel representing the parties.

The points that arise for consideration are:

Whether the trial court is justified in convicting and sentencing the accused for the offence under S. 324, IPC;

Whether the trial court is justified in convicting and sentencing the accused for the offence under S. 3(1)(x) of the SC/ST (Prevention of Atrocities) Act;

What offence, if any the accused have committed;

What order.

The case of the prosecution is, when the accused went to the hotel, PW 4 - Machendra called the accused to have tea for which accused have assaulted PWs 4 and PW 5 - Nagendra, thereby committed an offence and also abused him in a filthy language taking out the name of the caste. P.W. 1 is a panch witness for the scene of offence panchanama. Though he has supported the version of the prosecution and the signature on the panchanama but he denied the contents of the panchanama and being a pancha for the scene of offence. So also PW 2 Raju. P.W. 3 - Mumtaz is the owner of the hotel. Though she has admitted that she was running the hotel near the bus stand at Hodlur Village but she has pleaded ignorance as to the story of the prosecution and the overt act of the accused but, she has admitted that the complainant Machendra and PW 5 - Nagaraj belong to schedule caste. PW 4 - Machendra has deposed to the effect the incident has taken place; accused Dharmanna and Prashanth had come to the hotel and abused in a filthy language taking out the name of the caste stating that this Machendra is asking them to come and have tea. Thereafter, these four accused assaulted from club. Dharmanna and Prashant assaulted from the club on the head of PW 4, accused Nagaraj assaulted on his back and accused Mahesh assaulted from a club on both the arms. All the suggestions made on behalf of the defense have been denied by the witnesses. The suggestion of the defense that in connection with the panchayat held the village, a false case has been foisted against the accused, has been denied. PW 5 - Nagaraj in his evidence has deposed similar to that of PW 4. Specific overt act has been attributed against each of the accused in assaulting both Machendra and Nagaraj. PW 6 - Chandrakanth, a resident of Hodlur village and a student has also deposed about the overt act of the accused in abusing and assaulting Machendra and Nagaraj who belong to scheduled caste. This witness has also deposed that the injured Machendra and Nagaraj and himself belong to the same community. He has also stated that Machendra had sustained bleeding injury on the head but there is no blood stains inside the hotel and also admitted there were several persons gathered outside the hotel and the hotel owner was present at that time. A suggestion has been made to this witness that at the instance of the injured Machendra, he is deposing falsely which he has denied. Further, it is also suggested that there was a Panchayat held against the injured and this witness in respect of eve teasing and in that regard, they have falsely implicated the accused. The same has been denied. The evidence of PW 7 Rajendra is also to a similar effect. He also belongs to scheduled caste. That has been admitted. PW 8 - Medical Officer examined Machendra and found there were several abrasions and lacerated wounds on his body and opined that the injuries were simple in nature and accordingly, wound certificate was issued. The police inspector - PW 9 has registered the case and carried out investigation partly. Thereafter, PW - 10, Dy. S.P. has conducted investigation and filed charge sheet.

From the evidence it is clear the incident has taken place in the hotel of one Mumtaz. This Machendra and others sustained injuries. The doctor has opined the injuries are simple in nature. Although the witnesses including the injured witnesses, have deposed to the effect that the accused have abused them in a filthy language taking out the name of the caste, the injured themselves belong to scheduled caste whereas the accused belong to Lingayat community.

On going through the discussion of the court below, the opinion formed by the trial court that the accused have abused the complainant and others in filthy language taking out the name of their caste appears to be without support of any independent witness except interested witnesses. However, might be in the background of some panchayat held, such, implications would have been there to bring them to book for the offence under S. 3(1)(x) of the SC/ST (Prevention of Atrocities) Act.

So far as voluntarily causing hurt is concerned, the evidence of the injured and other witnesses are believable. Even though the argument that the injured and two other witnesses who have supported the prosecution belong to scheduled caste, might be in the usual course there may be some abuse and hurling on the complainant. It does not necessarily mean that with an intention they have committed the offence under S. 3(1)(x) of the SC/ST (Prevention of Atrocities) Act. Though no other independent witness has supported the evidence of the injured, the medical certificate issued do depict that the accused have committed offence under S. 323, IPC and not exactly the one under S. 324 and 504, IPC. To that extent, though it is a charge for offence under S. 324 and 504 IPC, having regard to the nature of injuries sustained and also based on the evidence of the doctor, it is held the accused are guilty of the offence under S. 323, IPC. Thus, the accused are sentenced to pay fine of Rs. 1000/- and default sentence of one month. Appeal is partly allowed.