Karnataka High Court
Parishanath @ Nayaku S/O Tammanna ... vs The State Of Karnataka, on 25 June, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 25 T H DAY OF JUN E 2020
BEFORE
THE HON'BLE MR. JUSTICE S HIVASHANKAR AMARANNAVAR
CRIMINAL APPEA L No.2839 OF 2010
BETWEEN
PARISHANATH @ NAYAKU S/O TAMMANNA ANAGALE,
AGE: 43 YEARS, R/O UGARKHURD,
TQ. ATHANI, DIST. BELGAUM.
... APPELLANT
(BY SRI.GANAPATI M BHAT, AMICUS CURIAE)
AND
THE STATE OF KARNATAKA,
THROUGH KAGAWAD POLICE,
REP. BY SPP, HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
... RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374 OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT PASSED BY THE III
ADDL. SESSIONS JUDGE, BELGAUM IN S.C.NO. 162/2009
DATED 28.08.2010 AND SENTENCE DATED 30.08.2010 AND
ACQUIT THE APPELLANT FROM THE CHARGES LEVELED
AGAINST HIM.
RESERVED ON : 18.06.2020
PRONOUNCED ON : 25.06.2020
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED, T HIS DAY THE COURT PRON OUNCED
THE FOLLOWING:
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JUDGMENT
This appeal has been filed by the appellant- accused challenging the judgment and sentence dated 28.08.2010 passed by the III Additional Sessions Judge, Belgaum in S.C.No.162/2009 wherein, the appellant-accused has been convicted for the offences punishable under Sections 324, 307, 504 of the IPC and Section 3(1)(x) of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The brief fact of the case is that on 10.03.2009 at 10.30.p.m. the accused went to the house of PW.6-Roopali, who is a member of Scheduled Caste and abused her as "Ye Bhosadi Hadargitti, Holylati, Holya Hadasugolyara" and so saying he asked PW.1 Vithabai who is the mother of the PW-6-Roopali to send Roopali with the accused for one night with him for promiscuous intercourse and Vithabai refused to 3 send her daughter PW.6-Roopali with accused, he damaged the window pane glass of the house with sickle which he had brought with him and when Vithabai opened the door of the house, he tried to pour sulfuric acid on the face of PW-6-Roopali and attempted to commit her murder and further in the same course of transaction, he sprinkled acid on PW.3-Malan Dere and PW.4-Bhajarang Dere and caused hurt and PW.1-complainant has filed a complaint in that regard. After investigation, Investigating Officer has filed charge sheet against the appellant-accused.
3. The prosecution in order to establish the case has examined 12 witnesses as PW.1 to PW.12 and 15 documents as EX.P.1 to P.15 and got marked material objects 1 to 5.
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4. After closure of the prosecution evidence, accused-appellant has been examined under Section 313 of Cr.P.C. Though, the accused-appellant has not chosen to any defence evidence and no documents are marked on defence side, after hearing arguments on both the sides, the trial Court formulated points for consideration and answered the points in the affirmative and convicted the appellant-accused for offence punishable under Sections 307, 324, 504 IPC and Section 3(1)(x) and (xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, appellant-accused has been sentenced to undergo simple imprisonment for a period of five years and to pay fine of Rs.5,000/- for the offence punishable under Section 307 of IPC and in default to pay fine to undergo further simple imprisonment for a period of six months. Appellant- accused has been sentenced to undergo simple 5 imprisonment for a period of one year for the offence punishable under Section 324 of IPC. The appellant has been sentenced to undergo simple imprisonment for a period of one year for the offence punishable under section 504 of IPC. The appellant-accused has been sentenced to undergo simple imprisonment for six months each and to pay fine of Rs.2,000/- each and in default to pay the fine to undergo further simple imprisonment for a period of two months for the offence punishable under Section 3(1)(x) and 3(1)(xi) of the SC and ST (POA) Act, 1989. The appellant-accused has been sentenced to undergo simple imprisonment for three years and to pay a fine of Rs.3,000/- and in default to pay the fine, to undergo further simple imprisonment for a period of six months for the offence punishable under Section 3(2)(v) of the SC and ST (POA) Act, 1989. It is also ordered that all the sentences shall run concurrently 6 and the appellant-accused is entitled to benefit of set off as provided under Section 428 of Cr.P.C.
5. Aggrieved by the above said judgment and conviction order of sentence, the accused has filed this appeal on the following grounds:-
a) The impugned judgment is illegal and arbitrary since the same has been passed without considering the material facts, circumstances and evidence on record.
b) The trial Court failed to appreciate that there was delay in filing the complaint.
c) PW-3 and PW-4 injured eye witnesses, in their evidence nowhere stated about the appellant-accused insulting the PW-1 and PW-6 by taking their caste.
d) All the witnesses stated that the appellant-accused threw the acid to PW-6 and some acid drops are fallen on her leg but the PW-10 doctor in her evidence clearly discloses that there is no burn injury to the body of PW-6. 7
e) The trail Court failed to appreciate the fact that there is no corroboration in the statement of the prosecution witnesses.
f) There was loan transaction between the complainant and the appellant-accused for that reason the complainant filed complaint with an intention to harass the appellant-accused.
g) The Trial Court lost sight to ascertain as to what are the ingredients to constitute the alleged offence and whether the said ingredients have been brought on record.
h) The Trial Court should have taken great care to assess their interested testimony which has not been supported by alleged independent witnesses.
i) The sentence and fine by the learned Session Judge is too harsh in nature.
6. Heard the arguments of the learned counsel appearing for the appellant-accused and learned HCGP for respondent-State. Perused the records. 8
7. The learned counsel appearing for the appellant- accused has argued that there is a delay of 24 hours in filing the complaint. There was no intention on the part of the appellant-accused to commit the murder of PW.6-Roopali and injuries sustained by the PWs.1, 3 and 4 are simple injuries. PW.6 has not sustained any injury. The evidence on record fall short to attract the offence under Section 307 of IPC and at most the offence under Section 506, part II is attracted. He further submitted that when the accused-appellant abused taking caste, nobody was there and therefore, the offences under Section 3(1)(x) and 3(1)(xi) are not attracted. The appellant-accused had no intention to commit the murder of the PW.1 or PW.6 and he was holding sickle and acid bottle only to give threat to PW.1 and PW.6 and there was no intention or knowledge on the part of the appellant-accused to commit murder of PW.1 or PW.6. The accused- 9 appellant went to the house of PW.6 only to ask PW.1 to send her daughter for one night for promiscuous intercourse with him and there was no intention on his part to commit murder of any person.
8. On the contrary, the learned HCGP has supported the judgment passed by the trial Court and contended that there was sufficient material and on the basis of evidence on record, the Trial Court rightly convicted the appellant-accused for the said offences and the appellant-accused has not made out any grounds to interfere in the judgment and sentence passed by the Trial Court.
9. After hearing the arguments advanced by the counsel for the parties and perusing the grounds made out in the appeal memo, the following points arise for my consideration:-
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1) Whether the prosecution has proved that the appellant-accused has committed offence punishable under Sections 3(1)(x) and (xi) of the SC and ST (POA) Act, 1989, and Section 504 of IPC?
2) Whether prosecution has proved that the appellant-accused has committed offences punishable under Section 324 and 307 of IPC?
3) Whether the prosecution has proved that the accused-appellant has committed offence punishable under Section 3(2)(v) of SC and ST (POA) Act, 1989?
10. My answer to the above points are as under:
1) In the affirmative
2) Partly in the affirmative
3) In the negative for the following reasons:
PW.1 has deposed that she belongs to Holyati caste and accused-appellant belongs to Jain caste, PW.6-Roopali is her daughter, PW.7-Ashwini is 11 daughter of Roopali. PW.6 has deposed that she belongs to Hindu Holeyara caste (Schedule Caste) and PW.1 is her mother. PW.7 is her daughter. PW.7 has deposed that she belongs to Holeyara Caste (Schedule Caste) and accused belongs to Jain caste and PW.1 is her grand mother and PW.6 is her mother. The caste of the PW.1, 6 and 7 has not been denied in the cross examination. Ex.P5 is the letter issued by the Tahasildar, Miraz wherein it is stated that PW.1 belongs to Hindu Mahar coming under Schedule Caste.
PW.8-Tahasildar has deposed that he has issued Ex.P.5 after making local enquiry with the help of his sub-ordinates. The appellant-accused has not disputed that PW.8 has issued caste certificate as per EX.P.5.
11. Ex.P.7 is the caste certificate of PW.3, 4, 6 and accused. In Ex.P.7 the caste of PW.6-Roopali has been stated as Hindu-Harijana alias Holera coming 12 under the Schedule Caste. The caste of PW.3 and PW.4 is stated to be Hindu-Marata, category III B. The caste of accused is mentioned as Jain-Digambar.
12. PW.1 has deposed that on the date of incident at 10.30 p.m accused came to their house and he knocked the door and asked to open the door and they refused to open the door. Then, accused broke the windowpane glass with the help of sickle brought by him and abused them as Holeyati, Holeyara Bagilu Terehiri. PW.6-Roopali has deposed that on the date of incident at about 10.00, 10.30 p.m when she, her mother and children were taking dinner, at that time accused-appellant came to their house and knocked the door then her mother said that they will not open the door and accused broken the window pane glass with the help of sickle and told that if they did not come out, he will kill one by one. She further deposed that accused abused them as "Ye Bhosadi Hadargitti, 13 Holayati, Holy Hadasugolyara". PW.7 Ashwini daughter of PW.6-Roopali has deposed that on 10.03.2009 on the day of Holi Hunnimme at about 10.30 p.m. when they were taking dinner at that time the accused- appellant came to their house and knocked the door and they did not open the door and therefore accused- appellant abused them as "Ye Bhosadi Hadargitti, Holayati, Holy Hadasugolyara" and told her grand mother to send her daughter for one night with him for promiscuous intercourse. Except denying the abusing words used by the accused-appellant nothing has been elicited in the cross examination.
13. The learned counsel appearing for the appellant- accused has argued that the said spot from where the accused abused is not a public place and therefore, offence punishable under Section 3(1)(x) of SC and ST (POA) Act,1989, is not attracted. Ex.P.13 is a sketch of scene of offence wherein it can be seen that others 14 houses are situated near the house of PW.6. The accused abused PW.1 and 6 by taking their caste outraging their modesty and it can be heard by the house situated near the house of PW.1 and PW.6. Therefore, the ingredients of offences under Section 3(1)(x) and (xi) of SC and ST (POA) Act,1989, and Section 504 of IPC are not attracted.
14. Ex.P.8, P.9 and Ex.P.10 are wound certificates of PW.1, 3 and 4 wherein it is stated that they have sustained simple injury. Ex.P.11 is wound certificate of PW.6-Roopali where it is stated that she has not sustained any injury. PW.10-is a doctor who had issued Ex.P.8 to P11. The history mentioned in Ex.P.8 to P.11 is alleged history of acid burnt. PW.1 has sustained injury on right forearm. PW.3 has sustained injury on left dorsum of hand. PW.4 has sustained injury on right dorsum of hand. The cause of injury mentioned in Ex.P.8 to P.10 is due to acid burnt. 15
15. PW.1, 6 and 7 have deposed that accused- appellant came to their house at about 10.30 p.m. and knocked the door and asked PW.1 to send her daughter with him for promiscuous intercourse and when they did not open the door, he with the sickle brought by him broken the window pane glass and thereafter, PW.6 opened the door and at that time accused told that he will finish them by pouring acid and opened the cap of acid bottle which he has holding and tried to throw on the face of PW.6, PW.1 came in between and tried to snatch acid bottle and at that time acid fallen on her and she sustained injury on her right hand and her saree was also burnt and listening the sound PW.3 and P4 came to the spot.
16. PW.3 and PW.4 have deposed that on hearing the sound of galata, they come to the house of PW.6 at that time accused-appellant was making galata and PW.1 and PW.6 opened the door and accused was 16 opening the cap of acid bottle at that time PW.1 snatched acid bottle and at that time some drop of acid fall on her hand and on her saree and on PW.4.
17. PW.1, 4, 6 and 7 have deposed that accused tried to threw the acid on PW.6 and at that time PW.1 snatched the bottle and threw it on the ground and PW.1, 3 and 4 sustained burnt injuries on their hands. PW.3 has deposed that when the accused opened the cap of the acid bottle PW.1 snatched the said bottle and at that time PW.1 and her self sustained burnt injuries on their hand. The said evidence of PW.3 goes to show that accused has not attempted to throw acid contained in the bottle on the face of PW.6. PW.6 has not sustained any injury as per Ex.P.11-wound certificate. The trial Court on the basis of the evidence of PW.1, 3, 4, 6 and 7 has convicted the accused for offences punishable under Section 307 of IPC. It is to be seen whether the facts and evidence 17 on records attracts the offences punishable under Section 307 of IPC.
18. The essential ingredients required to be proved in the case of an offence punishable under Section 307 are as follows:-
1. That the death of a human being was attempted.
2. That when such death was attempted to be caused such bodily injury as; (a) The accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause(a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
19. The accused-appellant came to the house to secure PW.6 for one night for promiscuous 18 intercourse. Even though, he was holding sickle and having bottle containing acid had no intention to kill either PW.1 or PW.6. His intention was to secure PW.6 for one night for promiscuous intercourse. The accused has brought sickle and bottle containing acid only with an intention to threaten the PW.1 and PW.6 to send PW.6-Roopali with him for one night for promiscuous intercourse. The accused had no intention to commit murder of PW.1 or 6. If he had any such intention to commit murder of PW.1 or PW.6, he would have used the sickle brought by him or thrown the acid on the face of PW.6. From the evidence on record, it is clear that when accused was opening the cap of the acid bottle, PW.1 snatched it and at that time, she PW.3 and PW.4 sustained acid burnt injuries on their hands. Therefore, there was no intention or knowledge on the part of the accused to kill the PW.6. Therefore, the act of accused does not 19 attract offence punishable under Section 307 of IPC at the most it attracts offence punishable under Section 506 of IPC coupled with 324 of IPC. The act of accused caused simple injuries for which he used acid and therefore offence under Section 324 of IPC is attracted. The accused holding acid and threatened PW.1 and PW.6 to kill them and therefore, it attracts offence punishable under Section 506, part II of IPC.
Therefore, the prosecution has not made out offence under Section 307 of IPC against the appellant- accused. The Trial Court has committed an error in holding that the accused committed offence punishable under Section 307 of IPC.
20. Instead of 307 of IPC, the offence attracted is Section 506 of IPC. The punishment provided for Section 506 IPC Part II is of lesser gravity compared to punishment provided under Section 307 of IPC, as it attracts punishment under Section 506 of IPC is 20 lesser gravity offence the accused can be convicted for the said offence even without any charge for the offence under Section 506 of IPC. Therefore, the accused is liable for conviction under Section 506 of IPC. The conviction of accused for the offence under section 307 of IPC is liable to be set aside.
21. The Trial Court has convicted the appellant- accused for the offence punishable under Section 3(2)(v) of SC and ST (POA) Act, 1989, on the ground that the accused has committed offence under Section 307 of IPC which is punishable with imprisonment for a term of 10 years or more against the person of a member of scheduled caste. Section 3(2)(v) of SC and ST (POA) Act, 1989 reads as under:
3(2)(v) : Commits any offence under the Indian Penal Code(45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to 21 such member, shall be punishable with imprisonment for life and with fine;
22. In order to attract provisions of Section 3(2)(v) of SC and ST (POA) Act, 1989, it is essential for the prosecution to show that the offence punishable with imprisonment for a term of 10 years or more against the scheduled caste person is committed on that ground, that such member is member of scheduled caste. In the aforesaid discussions, it is held that the evidence on record does not attract offence punishable under Section 307 of IPC and accused is liable for acquittal for offence punishable under Section 307 of IPC and the offence that attracts is Section 506 of IPC instead of Section 307 of IPC. The other offences wherein the accused has been convicted i.e. Section 504, 324 of IPC and Section 3(1)(x) and (xi) of SC and ST (POA) Act, 1989, does not attract punishment with imprisonment for a term of 10 years or more. The accused has not committed 22 the offences against PW.1 and PW.6 on the ground that they are member of a Schedule Caste.
Therefore, the offence under Section 3(2)(v) of SC and ST (POA) Act, 1989 is not attracted. Hence, the accused-appellant is liable to be acquitted for the offence punishable under Section 3(2)(v) of SC and ST (POA) Act, 1989. The trial Court has committed an error in convicting the accused-appellant for the offence punishable under Section 307 of IPC and 3(2)(v) of SC and ST (POA) Act, 1989.
23. The accused-appellant is held liable for punishment under Section 506 of IPC. The accused was in judicial custody from 17.03.2009 to 12.11.2010 i.e for a period of one year seven months twenty five days. In my opinion, appellant-accused has to be sentenced for the period already in judicial custody for the offence punishable under Section 506 of IPC.
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24. For the aforesaid discussions, holding that the Trial Court has committed error in convicting the appellant-accused for the offence punishable under Section 307 IPC and Section 3(2)(v) of SC and ST (POA) Act, 1989, the order of conviction and sentence passed by the trial Court for an offence punishable under Section 3(1)(x) and (xi) of SC and ST (POA) Act, 1989 and Section 324 and Section 504 of IPC are affirmed. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The order of conviction and sentence for the offence punishable under Section 307 IPC and Section 3(2)(v) of SC and ST (POA) Act, 1989 are set aside.
The accused-appellant is acquitted for the offences punishable under Section 307 of IPC and Section 3(2)(v) of SC and ST (POA) Act, 1989. 24
The accused-appellant is sentenced for the period already in judicial custody for the offence punishable under Section 506 of IPC.
The order of conviction and sentence passed by the trial Court for an offence punishable under Section 3(1)(x) and (xi) of SC and ST (POA) Act, 1989 and Section 324 and Section 504 of IPC are affirmed.
The order of running of the sentences concurrently and accused is entitled to set off under Section 428 of Cr.P.C. are remained undisturbed.
Fees of Amicus curiae is fixed at Rs.5,000/-.
Sd/-
JUDGE Hmb