Shivanna and Others vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned State Public Prosecutor. The appellants were the accused before the trial court in the following circumstances:- It is the case of the prosecution that on 31.3.2013, at about 8 p.m. when PWs. 1 and 2 were watching the Annual Day Function of Shri Shivashakthi Education Institute, the accused are said to have questioned about his presence and abused them as "Holeya nanna makkala" and so saying, accused No. 1 had stamped PW. 1 with his slippered foot and others had assaulted them with their hands and as a result of which, they had suffered injuries. PWs. 1 and 2 therefore, after obtaining medical treatment, had lodged a complaint as regards the alleged offences. It is on that basis that a case was registered for offences punishable under sections 143, 324, 323 read with 149 of the IPC and u/s 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Hereinafter referred to as the ''SC & ST Act'', for brevity). After further proceedings, the accused were charge-sheeted and they having pleaded not guilty and having claimed to be tried, the prosecution had examined nine witnesses and marked several documents and material objects. After recording the statement of the accused u/s 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the ''Cr.P.C.'' for brevity) and after hearing the parties, the court below had framed the following point for consideration:-

Whether the prosecution proved the allegations against the accused 1 to 6 punishable under Sections 143, 324, 323 read with 149 Indian Penal Code, and Section 3(1)(x) of SC and ST (Prevention of Atrocities) Act, 1989 beyond reasonable doubt?

The court below held the above point in the negative and convicted and sentenced the appellants to undergo simple imprisonment for two years with fine of Rs. 500/- each for the offence punishable u/s 3(1)(x) of the SC & ST Act and to undergo simple imprisonment for a period of six months for the offence punishable u/s 323 of the IPC and to undergo simple imprisonment for a period of one year with fine of Rs. 500/- each for the offence punishable u/s 324 of the IPC. It is that which is under challenge in the present appeal.

The learned Counsel for the appellants would point out that there was a concerted effort on the part of the group of persons belonging to the Scheduled Caste in the Gummanahalli village for the past three years prior to the incident, of bringing cases against the accused on allegations of offences punishable under the SC & ST Act as well as under other provisions of the IPC. This is evident from the admitted circumstance that PW. 1 has categorically admitted that subsequent to the filing of the present case on hand, he had also lodged yet another case against the present accused and forty others in Special Case No. 74/2003. The learned Counsel for the appellant would submit that the filing of such a case is part of the record as recorded in the deposition of PW. 1. And insofar as Special Case No. 74/2003 is concerned, it has resulted in the acquittal of the accused. It is also on record therein, as stated by the very PW. 1, that there were no instances of any such abuse with reference to the caste of the complainant and others. Therefore, it would be evident that the present case was one more in the light of cases brought against the accused as a group only to bring a false case against them. Even otherwise, the learned Counsel would draw attention to the record to demonstrate that for an offence punishable u/s 3(1)(x) of the SC & ST Act, it was incumbent on the prosecution to have established that the accused had intentionally insulted or intimidated, with an intent to humiliate the complainant in any place within public view. The allegation against the present appellants was to the effect that they had used derogatory language with reference to the caste of the complainant and other. To establish this, it was necessary that the witnesses in support of the prosecution ought to have corroborated the evidence of the others with reference to the particular language that was used in order to bring home the charge. The learned Counsel would draw attention to the testimony of each of the witnesses to point out that apart from the vague allegation that there was derogatory reference to the caste of the complainant and others, there is no indication of the exact language that was used by each of the accused. There is also no reference as to which of the accused used which expression. Therefore, the court below having convicted all the accused notwithstanding that there was no reference to any particular accused having used any particular language, the same results in a miscarriage of justice and is without any basis. It is also pointed out that the so called assault and the injuries suffered is not evidenced by any undisputable medical record. The injuries were of trivial in nature as it was only discolouration of the skin and contusions allegedly found on PW. 1 and this cannot be attributed to any assault in the absence of specific reference to the particular accused who had used particular means to cause such injuries. In the absence of particulars against each of the accused with reference to the overt acts committed by them, the court below could not have proceeded on generalities on the general allegations made against all the accused, in holding that the charges have been proved beyond all reasonable doubt. It is in this vein that the leaned Counsel would take this court through the evidence on record to demonstrate that the appellants being visited with serious punishment of imprisonment is not justified by the evidence or the findings that are arrived at by the court below. The learned Counsel would therefore seek acquittal of the accused.

While the learned State Public Prosecutor would seek to justify the judgment in support of the findings of the court below. On these rival contentions, insofar as the offence punishable u/s 3(1)(x) of the SC & ST Act is concerned, as rightly pointed out by the learned Counsel for the appellants, since the punishment that is attracted for an offence punishable under the said section is severe, in that, the minimum punishment of imprisonment of six months, which would extend up to 5 years, is provided. The burden of proof is strict on the prosecution to establish that there was commission of such an offence and the allegation that the accused had used derogatory expressions with reference to the caste of PW. 1 in public view and that therefore it constituted an offence punishable u/s 3(1)(x) of the SC & ST Act, ought to have been established on the basis of the evidence which was unimpeachable. On the other hand, the evidence on record would indicate that none of these witnesses have stated with any degree of certainty as to the exact words used in alleging that there was an offence committed in terms of Section 3(1)(x) of the SC & ST Act. On the other hand, none of the witnesses have even mentioned the exact words let alone attributing it to any particular accused. In that view of the matter, the court below having held that there was consistent evidence of the witnesses, which adequately corroborated the evidence of the prosecution, is not sustainable. Therefore, it cannot be said that an offence punishable u/s 3(1)(x) of the SC & ST Act, can be sustained. Insofar as the offences punishable under the provisions of the IPC are concerned, though there is evidence of PWs. 1 and 2 having suffered so called injuries, which are certified by a Medical Practitioner immediate after the occurrence of the incident when PWs. 1 and 2 have got themselves examined and have obtained the medical certificates before approaching the Police, the same cannot be negated and in the face of the circumstance that there are other witnesses to support the case that they were indeed assaulted by the accused, the offences punishable, as aforesaid, under the provisions of the IPC are certainly made out. But the question as to the quantum of punishment would depend on the gravity of the offence that are established. From the injuries suffered, it is evident that they were very minor in nature and apart from discolouration of the skin as a result of the blows delivered and contusions present, there was no serious damage done. Therefore, this would not warrant the extent of punishment imposed by the court below even if it could be held that the offences punishable under Sections 324 and 323 were established.

Consequently, the appeal is allowed in part. The accused are acquitted insofar as the offence punishable u/s 3(1)(x) of the SC & ST Act is concerned. Insofar as the punishment imposed for the offences punishable under sections 323 and 324 IPC are concerned, the same stands substantially modified. In that, the accused are sentenced to pay a fine of Rs. 1,000/- each to PWs. 1 and 2 jointly for the offence punishable u/s 323 of the IPC, in default of which, the accused shall suffer simple imprisonment for three months and to pay a fine of Rs. 1,000/- each to PWs. 1 and 2 for the offence punishable u/s 324 of the IPC, in default of which, the accused shall suffer simple imprisonment for three months. With that modification, the judgment of the court below insofar as the conviction for offences punishable under Sections 323 and 324 of the IPC stands confirmed.