Karnataka High Court
Ravikumar vs The State Of Karnataka on 25 August, 2020
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL No.42 OF 2011
C/W
CRIMINAL APPEAL No.414 OF 2011
CRL.A. No.42/2011
BETWEEN:
1. Ravikumar
S/o. Sanjeeva
Aged 41 years,
R/at Lathesh Nilaya
Adarshanagar
Urva Store, Mangaluru
2. Monappa Gowda,
S/o. Late Balanna,
Aged about 43 years,
R/at A.N.M.Quarters
Moodubelle, Udupi District
3. Sunil Kumar Jain
36 years,
R/at No.39/1
Padma Complex,
SDM Lane, Sulthanpet Cross,
Chamarajpet, Bengaluru-560053.
...Appellants
(By Sri. Mohan Murthy, Advocate for
Sri. M.Partha, Advocate)
2
AND:
The State of Karnataka by
Byandur Police
Kundapura Sub-Division,
Udupi (By Special Public Prosecutor)
... Respondent
(By Sri. R.D.Renukaradhya, HCGP)
This Criminal Appeal is filed under Section 374
Cr.P.C. praying to set aside the order dated 11.11.2010
passed by the Special Sessions Judge, Udupi in
Spl.C.No.32/2009 convicting the appellants/accused for
the offence punishable under Sections 323, 324, 504,
506 read with 34 of IPC and Section 3(1)(x) of SC/ST
(POA) Act, 1989. and each one appellants/accused are
sentenced to pay fine of Rs.2,500/- each for the offence
under Sections 323, 324 504, 506 read with 34 of IPC
and Section 3(1)(x) of SC/ST (POA) Act, 1989 read with
34 of IPC.
CRL.A. No.414/2011
BETWEEN:
State by Deputy
Superintendent of Police,
Kundapura Sub-Division.
...Appellant
(By Sri. R.D.Renukaradhya, HCGP)
3
AND:
1. Ravikumar
Aged 41 years,
S/o. Sanjeeva
R/at Lathesh Nilaya
Adarsha Nagar
Urva Store, Mangaluru
2. Monappa Gowda,
Aged about 43 years,
S/o. Late Balanna,
R/at A.N.M.Quarters
Moodubelle, Udupi District
3. Sunil Kumar Jain
36 years,
R/at No.39/1
Padma Complex,
SDM Lane, Sulthanpet Cross,
Chamarajapet, Bengaluru-560053.
... Respondents
(By Sri. Mohan Murthy, Advocate for
Sri. M.Partha, Advocate)
This Criminal Appeal is filed under Section 377
Cr.P.C. praying to modify the sentence imposed on
11/15.11.2010 passed by the Special/Sessions Judge,
Udupi in Spl.C.No.32/09-convicting the respondents
/accused for the offence punishable under Section 323,
324, 504 and 506 read with 34 of IPC and Section
3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
4
These Criminal Appeals coming on for hearing this
day, the Court delivered the following:
JUDGMENT
These two appeals have been disposed of by a common judgment as they arise from the judgment in Special Case No. 32/2009, on the file of the Special Court at Udupi constituted under section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as 'the Act'). Criminal Appeal No. 42/2011 is filed by accused Nos. 1 to 3 and Criminal Appeal No. 414/2011 is filed by the State. If a brief reference is made to the incident that led to prosecution of the accused, it is as follows : -
2. On 26.5.2009 at about 5.00 PM, all the three accused went to the house of PW1; Ravichandra and uttering the words, "DAiÉÄ ¢PÁÌ£À vÀĦ£À JZÀÑ£À DAiÉÄÃUÀ ¥ÁqÉè, DPï¯ÉèUÉ rPÁÌ ¥ÀAqÀzÀ CºÀAPÁgÀ" in Tulu language, assaulted 5 him with their hands and jack lever of the car. As he screamed, PWs2 and 3 came to that place and rescued him. In the hospital he made a statement before the police on the basis of which FIR was registered. The police held investigation and charge sheeted all the accused.
3. The prosecution examined 14 witnesses and got marked 17 documents as per Exs. P1 to P17 and one material object, i.e., a jack lever. Appreciating the evidence of the witnesses, the trial court held that the prosecution could prove its case against all the accused for the offences punishable under sections 323, 324, 504, 506 of IPC and section 3(1)(x) of the Act read with section 34 of IPC and sentenced each of them to pay fine of Rs.2,500/- for each offence. Aggrieved by this judgment, the accused have preferred the appeal and the State has also preferred the appeal seeking enhancement of the sentence.6
4. I have heard the arguments of Sri Mohan Murthy, learned advocate for Sri M.Partha for the appellants and Sri Renukaradhya, the learned HCGP.
Learned counsel Sri Mohan Murthy argues that the trial court has not correctly appreciated the evidence to hold the accused guilty of the offences charged against them. Referring to the oral evidence he argues that the evidence of PW1 is not consistent with the evidence of PW2 and PW3. If PW1 gives one version of the incident, PW2 has given evidence in the other way. PW3 who is an eye witness according to the prosecution has clearly stated that he did not see the incident and that he does not know who actually assaulted PW1. Therefore there is no cogency in the evidence given by PWs1 to 3 and thereby taking place of the incident itself could be doubted. It is also his argument that according to PW1, he went to the hospital and was there as an inpatient for about three days. PW5, the Medical Officer, has also 7 given evidence that PW1 was an inpatient in between the dates 26.5.2009 and 28.5.2009. But, the spot mahazar shows that it was drawn in the presence of PW1. Witness to the spot mahazar, i.e., PW11 might have stated that mahazar was drawn in his presence, what is important to be noted here is that PW1 would not have shown the place of incident to the police for drawing the mahazar and for this reason the entire mahazar can be doubted. Referring to the evidence of PW4, he argues that he too has turned hostile and thereby the seizure of a stick used for assault under Ex.P5 has not been proved.
4.1. Learned counsel Sri Mohan Murthy develops his argument further by submitting that the Medical Officer also does not support the testimony of PW1. PW5 has admitted the suggestion that the injuries noticed by him could occur in the other way also. It has come in the evidence of PW3 that on the date of the alleged 8 incident, he was fixing the centering plates; so his answer probabalizes the defence version that PW1 sustained injuries not because of the assault by the accused but due to a fall from the roof. He stressed the point that the material witnesses are interested. It is his argument that the evidence as a whole does not disclose the happening of the incident and for this reason the accused should not have been held guilty of the offences under sections 323, 324, 504 and 506 of IPC.
4.2. As regards the offence under section 3(1)(x) of the Act, it is his argument that there is no evidence to establish that PW1 was subjected to insult in the public view. According to the evidence given by PW1, the incident took place inside the frontyard of the house of PW1. PW2 has stated in the cross-examination that many persons gathered at the time of incident and if it were to be true, the investigation officer should have 9 taken the statements of independent witnesses while conducting investigation, and one of them at least should have been examined in the court. Evidence to this effect is not forthcoming. Therefore, the offence under section 3(1)(x) of the Act does not get established. It is his submission that all the accused deserve acquittal and their appeal should be allowed.
5. Sri Renukaradhya, the learned HCGP, submits that there is no inconsistency in the evidence of PWs 1 to 3. PW3 has not totally turned hostile, he has to some extent supported the prosecution case. His oral testimony shows that he took PW1 to hospital seeing the injuries sustained by him. PW1, PW2 and PW13 have given a clear account of the incident. There may be some discrepancies in the testimonies of the witnesses, but they are trivial to be ignored. The medical evidence corroborates the testimony of the injured, i.e., PW1. It has come in evidence that PW1 10 belongs to Scheduled Caste and that the accused do not belong to Scheduled Caste. In Ex.P1, there is a clear mention of the abusive words used by the accused to insult him. Therefore, even the offence under section 3(1)(x) of the Act is proved by the prosecution. But, what he argues is that the trial court should not have imposed mere fine. The accused should have been sentenced to imprisonment, the trial court has not taken into consideration the sentencing structure found in the various penal sections for which the accused have been held guilty, and there is a clear case for enhancement of sentence. He argues for allowing the state appeal and dismissing the appeal made by the accused.
6. If the judgment of the trial court is perused, what is found is that the trial court has held that the testimonies of PWs1, 2 and 3 is convincing and their evidence establishes the charges against the accused. The medical evidence buttresses the evidence of PW1 as 11 regards the injuries. In regard to mahazar, the trial court has held that even if drawing up of mahazar can be ignored for the reason that PW1 could not have shown the place of incident to the police as he was an inpatient in the hospital, the evidence of main witnesses i.e., PWs1, 2 and 13 as regards the incident cannot be ignored. Their evidence establishes the incident of assault and insulting PW1 in the name of his caste. Therefore, the prosecution case has stood proved.
7. Given a re-look at the evidence what is found is:
PW1 is the victim of the incident that is said to have taken place on 26.5.2009. His evidence shows that there was some loan transaction between his brother, i.e., PW13 and the accused who were running a private finance company called Ganesha Financial Services at Udupi. PW13 had borrowed money for buying a car and still there was some amount due from 12 him. It was in this connection that the accused came to his house on 26.5.2009 and enquired him about his brother Naveenchandra, i.e. PW13. When he said that his brother was not in his house, the first accused abused him in Tulu language touching his caste, and then assaulted him with a stick. He has also stated that it was accused No.2 who assaulted him with jack lever and then accused No.1 pushed him by holding his neck. Seeing this incident PW2 came to that place and pacified the situation. He has stated that the first accused gave a threat to his life at that time. Thereafter, PWs 2 and 3 took him to the hospital for treatment and he was admitted to the hospital as an inpatient. While in the hospital he made a statement before the police as per Ex.P1 on the basis of which the police registered FIR. He also speaks about drawing up of mahazar as Ex.P2. It is his say that he was insulted by the accused by abusing him taking the name of his caste.13
8. PW2 has stated that on 26.5.2009 at about 5.00 PM, he had been to the house of PW1 and at that time, all the accused came in a car. There took place a quarrel between the two in relation to a car transaction and in the course of quarrel, accused No.1 assaulted PW1 with jack lever and accused No.2 with a stick. He has also stated that accused No.3 also assaulted. It is his evidence that he interfered for the rescue of PW1. Seeing the injuries sustained by PW1, he and PW3 took PW1 to the hospital.
9. PW3 has simply stated that on 26.5.2009 he was working in the house of PW1 and at 5.00 PM when he was inside the house, he heard the cry of PW1 and therefore came out. Those who had come for quarrel had left that place in a car and thereafter he and PW2 took PW1 to the hospital. In the examination in chief it is his say that he did not know the persons who assaulted PW1. Since the prosecution case is that he 14 too was an eye witness, he was treated hostile and cross-examined by the public prosecutor. A perusal of the cross-examination by the public prosecutor shows that he has stuck to the statement that he just came out of the house having heard the cry of PW1, the public prosecutor could not extract an answer favourable to prosecution case.
10. The next prominent witness is Naveenchandra, PW13, who is the brother of PW1. His evidence clearly shows that he had taken loan from the accused for purchasing a car. He was still due in a sum of Rs.30,000/- and in connection with this transaction the accused came to the house of his brother and assaulted him besides insulting him taking the name of caste.
11. PW12 is a witness to another mahazar Ex.P10 drawn in relation to seizure of car. But, he has not supported the prosecution.
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12. PW4 is examined for establishing the mahazar, Ex.P5, in connection with seizure of a stick, but he has not supported the prosecution case.
13. PW11 is a witness to the spot mahazar drawn as per Ex.P2 and he has stated that the police drew the mahazar in his presence as per Ex.P2 and also a sketch at the scene of occurrence as per Ex.P3.
14. PW5 is the medical officer who treated PW1 on 26.5.2009 at 6.10 PM. Ex.P6 is the wound certificate. The testimony of PW5 is that PW1 gave history that he was assaulted with a wooden stick by a group of five people and, he found the following four injuries on the person of PW1:-
(i) Diffuse contusion present over left eye brow and cheek region
(ii) Diffuse contusion with superficial aserreted wounds present over neck 16
(iii) Diffuse contusion with multiple small aserreted wounds present over anterior chest region
(iv) Diffuse contusion present over dorsum of right hand.
All these injuries were fresh. He has stated that the injured was admitted to the hospital as an inpatient and he was there from 26.5.2009 till 28.5.2009.
15. PWs 6 and 7 are the Tahsildars. If PW6 speaks about issuing caste certificate of PW1 stating that he belongs to 'Billava' caste, PW7 has stated that he gave caste certificate as per Ex.P8 that accused No.2 belongs to Gowda caste. PWs8, 9, 10 and 14 are the police witnesses.
16. Now if the evidence is assessed what is possible to be inferred is that it was in the background of a car loan transaction between the accused and PW13 that all the accused went to the house of PW1 in 17 search of PW13 and then assaulted him. As argued by the learned counsel for the accused, there is some slight variance in the evidence of PW1 and PW2 as regards the actual overt act of each of the accused. This cannot be the reason for disbelieving the whole incident. It is not as though PWs1 and 13 do not know the accused. PW1 has clearly stated as to how the quarrel began and about the assault on him. The testimony of PW2 clearly shows that he was present in the house when the quarrel took place and witnessed the entire incident. PW13 also speaks in the same manner. It is true that PW3 does not support. But, this cannot be the reason for discarding the evidence of PWs1, 2 and 13. If the cross-examination of these witnesses is perused, I do not find anything worth mentioning here to opine that they have given false evidence about the assault in order to falsely implicate the accused. Since the learned counsel for the accused submitted that they are interested, if the evidence is again scrutinized, it is 18 impossible to find element of interestedness in the testimonies of PWs1, 2 and 13. Soon after the incident, PW1 was taken to the hospital where PW5 examined PW1 and noticed four injuries. History is also noted. There is no time lapse in going to the hospital. It is true that PW5 has been suggested that the injuries suffered by PW1 could also occur due to a fall from the roof, but, what is to be stated is that it is just the other possibility of sustaining injuries, and cannot be interpreted that PW1 fell from the roof and sustained injuries.
17. For the reason that PW3 has turned hostile, it cannot be said that the whole incident projected by the prosecution could be disbelieved. It is true that in the mahazar it is recorded that PW1 showed the place of incident, but PW5 says that he was an inpatient in the hospital and for this reason drawal of spot mahazar in the presence of PW1 could be disbelieved. But, 19 mahazar cannot be treated as a main evidence for assessing the evidence of the eye witnesses. Mahazar itself does not prove the incident and rightly the trial court has ignored this spot mahazar. So the conclusion to be arrived at is that the incident of assault on PW1 is established and to this extent the finding of the trial court cannot be said to be wrong.
18. However, what is to be noted is that the trial court has held the accused guilty of the offence under sections 504 and 506 of IPC. The prime witnesses PWs1, 2 and 13 do not establish the material ingredients required for convicting the accused for these two offences. PW1 might have stated that he was threatened by the accused, but that itself is not sufficient. Therefore, the conviction of accused for the offence under sections 504 and 506 of IPC cannot be sustained.
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19. The accused have been charge sheeted under section 3(1)(x) of the Act as it stood before amendment. PW6, Tahsildar has given evidence that PW1 belongs to 'Billava' caste. Of course in Ex.P1 it is stated that accused No.1 uttered words in Tulu language touching the name of his caste and PW1 has also given oral evidence about it. Now if the prosecution case is seen what is forthcoming is that the quarrel took place for the reason that PW13 had not fully repaid the loan that he had taken from the accused for purchasing the car. That means the background of the incident is the car loan transaction. There is nothing in evidence to indicate that the accused had such kind of intention as to insult PW1 since he belongs to Scheduled Caste. The police routinely register a case for the offence under the provisions of the Act once they come to know that the victim belongs to Scheduled Caste or Scheduled Tribe although the incident in question might not have taken place in the background of caste factor. For various 21 reasons quarrels do take place between two persons or two groups, and if for any reason a member of Scheduled Caste or Scheduled Tribe is subjected to assault or abused, it does not permit the police to register a case under the provisions of the Act without ascertaining whether really an offence of the nature as could be brought within the scope of the Act has happened or not. The main requirement for registration of FIR under the provisions of the Act is that a member of Scheduled Caste or Scheduled Tribe should have been subjected to atrocity for the reason that he/she belongs to that caste. That means a clear intention to humiliate or insult or commit atrocity on a person or persons belonging to Scheduled Caste or Scheduled Tribe for the solely and only reason that a person belongs to that caste, must be there. Not that every incident or every quarrel can be said to have taken place for the purpose of insulting a member of the Scheduled Caste or Scheduled Tribe. It may be stated in this 22 context that Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules states that investigation into offence or offences enumerated in the Act shall be held by a police officer not below the rank of Deputy Superintendent of Police. The purpose of appointing a Deputy Superintendent of Police for investigation is that because of his experience he will be able to decide with help of evidence collected by him whether really an offence of the nature specified in section 3 of the Act has taken place or not. If evidence shows that reason for incident is not the caste factor, no charge sheet can be filed for any of the offences under Section 3 of the Act, but charge sheet can be filed for any of the offences punishable under Indian Penal Code.
20. Here in this case the car loan transaction is the reason for the incident and not that the accused had intention to insult them. The trial court has not at 23 all appreciated the evidence from this angle. Thus looked, holding the accused guilty of the offence under section 3(1)(x) of the Act is not justifiable.
21. Looked at the sentence imposed by the trial court, it can be said that the trial court has committed a mistake. For each of the offences, the trial court has imposed a fine of Rs.2,500/-, but in relation to offence under section 323 of IPC, the maximum fine that could be imposed is Rs.1,000/- and not more than that. For this reason, the fine of Rs.2,500/- imposed for the offence under section 323 IPC requires to be reduced. Though in relation to offence under section 324 IPC there is no maximum fine prescribed, in the circumstances I am of the opinion that fine of Rs.1,000/- on each of the accused will meet the ends of justice. Therefore, the following order:-
(a) Criminal Appeal No. 42/2011
partly succeeds, while retaining
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the conviction for the offences
under sections 323 and 324 IPC,
the accused are acquitted of the
offences under sections 504 and
506 of IPC and section 3(1)(x) of
the Act.
(b) The fine amount is reduced to
Rs.1,000/- for each of the offence
under sections 323 and 324 of IPC.
(c) Criminal Appeal No. 414/2011
filed by the State fails and it is
dismissed.
(d) Since the fine amount of
Rs.1,000/- is imposed for each of
the offence under sections 323 and
324 IPC, the excess money paid by
the accused towards fine for the
offences and entire fine amount
paid by them for other offences
shall be refunded to them.
SD/-
JUDGE
ckl/-