The State vs Mounesh

Huluvadi G. Ramesh, J.—This appeal is by the State challenging the order of acquittal passed by the II Addl. Sessions Judge, Gulbarga dated 11.03.2010 in Special Case No. 150/2008 acquitting the accused for the offence under Sections 323, 324 R/W Sec. 34 of IPC and u/s 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. According to the prosecution, charge sheet was filed by the Deputy Superintendent of Police, Sub-Division, Gulbarga for the above said offence. Having registered the case in Jewargi police station in crime No. 148/2008, it is alleged that on 2.5.2008 around 4.30 p.m. near Alampeer @ Jathgar masjid, on the public road at Aurad village when C.W. 1 was proceeding towards his house, the accused with a common intention picked up quarrel with him and assaulted with hands and stones and abused in a filthy language taking out the name of the caste. Accused pleaded not guilty to the charge framed. The prosecution examined, in all about 9 witnesses and got marked about 8 documents and contradiction is marked at Ex. D.1 in the complaint. The defense of the accused is nil. The trial Court having so framed charge under Sections 323, 324 R/W Section 34 of IPC and u/s 3(1)(x) of SC & ST (PA) Act, recording acquittal, the accused were acquitted. Against this, the State has filed this appeal.

Having heard the Addl. SPP and counsel representing the accused, the points that arise for consideration are;

i) Whether the prosecution is able to prove the case against the accused for the offences punishable under Sections 323, 324 R/W Section 34 of IPC?

ii) Whether the prosecution is able to prove the case against the accused that accused abused and insulted C.W. 1 taking out the name of his caste in a public place and thereby committed an offence punishable u/s 3(1)(x) of SC & ST (PA) Act?

iii) What offence, if any the accused have committed?

iv) What order?

P.W. 6- Hussainsab is said to be an auto driver, he brought the injured to the police station and then having noticed that injured has sustained bleeding injury on his head admitted the injured in the hospital at Jewargi. The distance between the place of incident and Jewargi is 8 KMs. In the complaint it is averred that one Mounesh-the accused, along with his relative, came from opposite direction on 2.5.2008 around 4.30 p.m. when the complainant was proceeding on the road towards Masjid. Both of them belong to Kabbaliga caste. In connection with passing through the land of Bhimaraya, the accused is said to have abused the complainant stating why they are using pathway of land of his brother-in law Bhimaraya. Accused No. 2 Ramu is said to have assaulted on his cheek and accused No. 1 assaulted on the head from a fist-size stone. In connection with using the pathway, the alleged incident is said to have taken place. The road which was closed, was used as a pathway seven months prior to the incident. In connection with the closing of the road, there was said to be misunderstanding between first accused and Bhimaraya, the uncle of the first accused. This Eshwarappa-P.W. 1 is said to be the injured in the incident. Accused No. 1 and 2 asked this complainant as to why they are using pathway in the land of his uncle, saying so accused No. 1 and 2 abused the complainant, quarreled with him and also assaulted him. At that time, one Eshwarappa and Sharanamma came there and separated them. The defense of the accused is that without using the pathway i.e., cartway, this complainant was running his tractor all over the land of his uncle Bhimaraya. Further the defense of the; accused is that when accused told the complainant not to go on the land of his uncle-Bhimaraya, taking advantage of the same, he has implicated the accused stating that they have abused taking out the name of the caste of complainant and assaulted him and contradiction has also been elicited as per Ex. D.1 to the effect that he did not dictate to the police that he sustained head injury and also the defense of the accused is that accused No. 1 was working in Bangalore under somebody. Though it is admitted, it is deposed by P.W. 1 that on that day the accused was in the village.

P.W. 2 is the pancha for seizure of the stone from the spot. However, he has admitted in the cross-examination that when he went to the spot, there was a stone in the hand of the police and further he pleaded ignorance as to who gave the stone to the police and who showed him to the police. P.W. 3 is the pancha for seizure of the blood stained cloth. P.W. 4 Sharanamma is the brother of the complainant and injured. She has deposed to the effect that accused were quarrelling with her brother, she went and separated them. The accused No. 1 assaulted on the head of the complainant and accused No. 2 has slapped and also stated the accused have abused taking out the name of the caste of the complainant and one Eshwarappa came and separated the quarrel.. The defense of the accused is that no such incident has taken place. But only at the instance of the complainant, a false case has been registered against the accused.

P.W. 5 Eshwarappa has deposed about accused No. 1 assaulting on the head of the complainant near Masjid. Accused No. 1 assaulted with stone on the head and accused No. 2 slapped the complainant. The suggestion of the accused is that this witness being related to the complainant, giving a false evidence.

P.W. 7 is the PSI who received the complaint and registered a case. P.W. 8 is the doctor who has examined the injured. He has deposed that there is a lacerated wound on the forehead of Eshwarappa and opined that the injury is simple in nature.

P.W. 9 is the Dy. S.P. who investigated the case further and filed charge sheet. From the evidence of P.W. 1 Eshwarappa, P.W. 4-Sharanamma and P.W. 5-Eshwarappa, it appears that a quarrel took place between the complainant and accused in connection with passing through the pathway in the land of uncle of accused. Except the injured and two other eyewitnesses who are brother and sister of injured-complainant, no other independent witnesses have supported the case. P.W. 6 is not an eyewitness to the incident, but he has taken the injured to the hospital and admitted and he has also taken the injured to the police station. From the above evidence on record what transpired is, the accused taking out the name of the caste but it is not made out as to whether such abuse is made known to others. So far as assault is concerned, evidence of P.W. 1 coupled with the evidence of P.Ws. 4 and 5 prove that complainant sustained simple injury. The charge as framed against the accused is for the offences under Sections 323, 324 R/W Section 34 of IPC and u/s 3(1)(x) of SC & ST (PA) Act. Might be the injury caused to the complainant is due to assault with stone. There is a case against the accused for the offence u/s 323 and not u/s 324 of IPC or other offence. Though it is stated that the accused have abused the complainant taking out the name of the caste, it is not made out whether it is a public place and whether it came to the knowledge of some other public regarding abuse taking out the name of the caste of complainant. So, while setting aside the order of acquittal passed by the Special Judge, the accused are held guilty of the offence u/s 323 of IPC and they have been sentenced to pay a fine of Rs. 1,000/- each and default sentence of 15 days. Accordingly, appeal filed by the State is allowed in part. The accused are rightly acquitted by the Special Court in respect of other offences.

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