Karnataka High Court
Shaik Babu @ Babu S/O Moinudin vs The State on 18 September, 2013
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IN THE HIGH COURT OF KARNATAKA, GULBARGA
BENCH
Dated this the 18th day of September, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.V. PINTO
Criminal Petition No.3646/2009
BETWEEN
1. SHAIK BABU @ BABU
S/O MOINUDDIN
AGE: 31 YEARS
2. CHANDAPPA
S/O BHIMAPPA
AGE: 36 YEARS
3. YELLAPPA
S/O CHANDAPPA
AGE: 21 YEARS
4. BHIMAPPA
S/O CHANDAPPA
AGE: 20 YEARS
5. NAGARAJ
S/O CHANDAPPA
AGE: 18 YEARS
6. YENKAPPA
S/O MARIYAPPA
AGE: 25 YEARS
7. AMARESH
S/O SHIVAPPA
AGE: 22 YEARS
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ALL ARE R/O GURUGUNTA VILLAGE
TALUK: LINGASUGUR, DIST:RAICHUR ... APPELLANTS
(By Sri B.K.HIREMATH, ADV., FOR Sri N.
CHANDRASHEKHARAYYA, ADV.,)
AND
THE STATE
THROUGH THE DEPUTY SUPERINTENDENT
OF POLICE, LINGASUGUR ... RESPONDENT
(By Sri S.S. ASPALLI, HCGP)
THIS CRL.A. FILED U/S. 374(2) OF CR.P.C BY THE
ADVOCATE FOR THE APPELLANTS AGAINST THE JUDGMENT
AND ORDER OF CONVICTION PASSED BY THE ADDL.SESSIONS
(ATROCITY) JUDGE, RAICHUR ON 15.10.09 IN SPL.AC. NO.5/08
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES
P/U/S. 143, 147, 341, 323 AND 355 R/W SEC.149 OF IPC AND
FOR THE OFFENCE U/S.3(1)(X) OF SC/ST (POA) ACT 1989 AND
THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
S.I. FOR ONE MONTH EACH AND A FINE OF RS.100/- EACH ID
FOR 5 DAYS FOR THE OFFENCE P/U/S. 143 OF IPC, FURTHER
RI FOR 6 MONTHS EACH AND A FINE OF RS. 500/- EACH ID SI
FOR 2 WEEKS U/S. 147 OF IPC, FURTHER FINE OF RS.200/-
EACH ID SI FOR 10 DAYS EACH U/S. 341 OF IPC, FURTHER
FINE OF RS.1000/- EACH ID SI FOR 1 MONTH EACH U/S. 323
OF IPC, FURTHER RI FOR 6 MONTHS EACH AND A FINE OF
RS.500/- EACH ID SI FOR 2 WEEKS EACH U/S. 355 OF IPC,
FURTHER RI FOR 6 MONTHS EACH AND FINE OF RS. 1000/- ID
SI FOR ONE MONTH U/S 3(1)(10) SC/ST (POA) ACT, 1989. THE
APPELLANTS/ACCUSED PRAYS THAT THEY BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
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JUDGMENT
This appeal is filed challenging the Judgment dated 15.10.2009 passed by the Addl. Sessions (Atrocity) Judge, Raichur in Spl. A.C.No.5/2008 convicting the appellants for the offences under Sections 143, 147, 341, 323 & 355 of IPC read with Section 149 of IPC and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 and sentencing each of them to undergo SI for one month and to pay a fine of `100/- each in default SI for 5 days for the offence under Section 143 of IPC; RI for six months each and to pay a fine of `500/- each in default SI for two weeks for the offence under Section 147 of IPC; fine of `200/- each in default SI for ten days for the offence under Section 341 of IPC; fine of `1,000/- each in default SI for one month for the offence under Section 323 of IPC; RI for six months each and to pay a fine of `500/- each in default SI for two weeks for the offence under Section 355 of IPC; RI for six months each and to pay a fine of `1,000/- each in default SI for one month for the offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
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2. It is the case of the prosecution that on 20.1.2008 at about 7.30 p.m. on the public road near the house of one Ambamma situated in Gurugunta village, accused Nos.1 to 7 formed themselves into an unlawful assembly with a common object of assaulting CW.1- Gurubasava Nayak and intentionally insulting him, thereby they are alleged to have committed an offence under Section 143 of IPC.
3. It is the further case of the prosecution that on the aforesaid place, date and time by forming themselves into an unlawful assembly, the accused persons used violence or force, thereby they have committed an offence of rioting punishable under Section 147 of IPC read with Section 149 of IPC.
4. It is the further case of the prosecution that on the aforesaid place, date and time, the accused intentionally restrained the Complainant wrongfully and thereafter assaulted him with Chappal in order to dishonour him and also caused simple injuries by kicking him, thereby they are 5 alleged to have committed the offences under Section 341, 355 and 323 of IPC read with Section 149 of IPC.
5. It is also further alleged that on the aforesaid place, date and time, the accused caused hurt to CW.2- Ramesh by assaulting and kicking him, thereby they are alleged to have committed an offence under Section 323 of IPC read with Section 149 of IPC.
6. It is also charged against the accused that on the aforesaid place, date and time, they have criminally intimidated CWs.1 and 2, thereby they have committed an offence under Section 506 of IPC read with Section 149 of IPC.
7. It is also further charged against the accused that on the aforesaid place, date and time, they have insulted the Complainant in the name of his Caste by saying "LE BYADAR SULE MAGANE" with an intention to insult or humiliate in public view, thereby all of them are alleged to have committed an offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989.
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8. The prosecution in order to prove the case has examined in all 11 witnesses; got marked Exs.P1 to 10 and produced MO.1-One Chappal. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Special Judge was pleased to convict the accused/appellants and sentenced them as aforesaid. It is this Judgment of conviction and sentence, which is challenged by the appellants in this appeal.
9. The proceedings in this case commenced on the basis of the complaint filed by one Gurubasava Nayak of Gurugunta on 21.1.2008. It is stated in the complaint that on 20.1.2008 at about 7.30 p.m. near Moharam Dafan [Darbar], the accused by name Shaik Babu and his friends Chandappa, Yellappa, Bheemappa, Nagaraj, Yenkappa and Amaresh formed themselves into an unlawful assembly and when the Complainant came on the way, accused called him in the name of his Caste and abused him. The Complainant did not heed to the said abuses. However, accused Babu held a Chappal in his hand and after abusing him in the name of his Caste assaulted him. At that time other accused 7 pulled him down on the land and assaulted, kicked and threatened him if he were to give any complaint. Thereafter, they also assaulted Ramesh, who is the son-in-law of the Complainant and carried him to the house of Babu and further assaulted him by stones and club. The said Ramesh became unconscious and at that time villagers by name Yallappa, Veerabhadrappa, Timmanna and Basavaraja gathered there and thereafter they took Ramesh to the Doctor. Ramesh was admitted in the hospital in Lingsugur. It is stated in the complaint that the accused-Babu and others have been committing atrocity on village people and hence proper action is prayed for. The Hutti Police on receipt of the above complaint, registered the case in Crime No.11/2008 for the offences under Sections 143, 147, 148, 355, 323, 342, 506 & 324 of IPC read with Section 149 of IPC and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989. After investigation conducted by Dy.S.P.,-PW.9, charge sheet came to be filed.
10. PW.1-Gurubasava Nayak is the Complainant. He has stated before the Court that on the date of incident all 8 the accused were present on the road and they were abusing him and thereafter pulled him down. Accused No.1-Babu took a Chappal and assaulted him on his chest; accused- Chandappa and others pulled him down and other accused assaulted him. At that time, his son-in-law/Ramesh came there to separate him from the accused. At that time, Ramesh was dragged to the house of accused No.1-Babu and after that all the accused also assaulted Ramesh. When witnesses like Veerabhadrappa and others came near the scene of occurrence, the accused persons ran away. PW.1 has been thoroughly cross-examined regarding the incident.
11. PW.2-Ramesh is the injured. It is his evidence before the Court that when he reached the scene of occurrence at about 7.30 p.m. all the accused were assaulting PW.1, who is his uncle. He has also stated that all the accused have assaulted him also on his chest and other parts of the body. Accused-Babu has assaulted the Complainant with a Chappal on his chest and other parts of the body. Both Babu & Chandappa abused the Complainant 9 in the name of his Caste. He has identified the Chappal used for assaulting him.
12. PW.3-Basavaraj is also another witness to the incident. He has also stated regarding the assault on PWs.1 and 2 on the date of incident.
13. PW.4-Parasappa is a Panch witness, who has signed the Mahazar while the chappal was seized by the Police. He has identified the chappal before the Court.
14. PW.5-Vijay Kumar is the signatory to Spot Panchanama. PW.6-Santhosh Kumar is the Constable, who has transmitted the FIR to the Court.
15. PW.7-Dr.Prashanth has examined PW.1 and issued Wound Certificate as Ex.P4 stating that PW.1 has sustained simple injuries.
16. PW.8-Dattatreya is the ASI., who has registered the case and sent the FIR to the Court.
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17. PW.9-S.K.Mulasavalgi is the Dy.S.P., who has conducted the investigation and filed the charge sheet after obtaining the certified copy of documents from the Complainant.
18. PW.10-Dr.Chandrababu has treated PW.2- Ramesh and has given a Wound Certificate as per Ex.P9, according to which, Ramesh has sustained simple injuries.
19. PW.11-M.Rachappa is the Tahsildar, who has stated that the Complainant belongs to ST community and accused persons do not belong to SC or ST community.
20. It is from the above evidence of the prosecution witnesses that the learned Special Judge has found the accused persons guilty and convicted them.
21. Heard Sri B.K. Hiremath, learned Counsel appearing for the appellants and Sri S.S. Aspalli, learned HCGP appearing for the Respondent/State. 11
22. On a careful consideration of the materials on record, it is seen that the incident has been spoken to by PWs.1 and 2. While PW.1 has stated that all the accused have taken the name of his Caste and abused him, PW.2 has stated that when he went, accused were already assaulting PW.1 and thereafter Babu and Chandappa abused the Complainant in the name of his Caste. It is seen that the Complainant has stated in his complaint that accused No.1 has abused him in the name of his Caste. It is evident from the evidence of PWs.1 and 2 and the averments in the complaint that there is a glaring discrepancy insofar as the abuse by the accused and the evidence of PWs.1 and 2 is not corroborating with each other and also does not corroborate with the version in the complaint. Under the circumstances, I am of the considered opinion that the finding of the learned Special Judge insofar as the guilt of the accused under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 is not supported by clear and cogent evidence. Therefore, accused are entitled for an order of acquittal so far as the 12 offence under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 is concerned.
23. So far as the other offences are concerned, it is seen that not only PWs.1 and 2, who are the injured, PW.3- Basavaraj has also corroborated the evidence of PWs.1 and
2. PW.3 has also supported the case of the prosecution that all the accused formed themselves into an unlawful assembly and assaulted PW.1 and when PW.2 came to interfere, PW.2 was also assaulted. PW.7-Dr. Prashanth has corroborated the fact that PW.1 has sustained injuries on that day and that PW.7 has opined that the injuries sustained by PW.1 could have been caused by chappal. PW.10-Dr. Chandrababu also has corroborated the evidence of PWs.1 and 2 insofar as the injuries sustained by PW.2- Ramesh, who has stated that PW.2 has sustained injuries as per Ex.P9-Wound Certificate.
23. On a careful consideration of the entire materials on record, I am of the considered opinion that the prosecution has proved that on the date of incident all the 13 accused have formed themselves into an unlawful assembly and have assaulted Complainant-PW.1 and PW.2 and caused simple injuries to them. Therefore, the order of conviction passed against the appellants of the offences under Sections 143, 147 and 323 of IPC., is based on the evidence on record. It is seen that the scene of occurrence is a road and therefore it cannot be said that the accused have committed an offence under Section 341 of IPC and the accused are entitled for an order of acquittal for the said offence.
24. So far as the offence under Section 355 of IPC is concerned, the said act is covered under Section 323 of IPC for which the accused are already found guilty by the trial Court. Hence, the trial Court could not have convicted the accused for the offence under Section 355 of IPC., also.
25. So far as the sentence is concerned, I am of the opinion that the incident having been taken place five years ago and that the incident might have happened due to some misunderstanding between two groups in the community, 14 sending the appellants to custody at this stage would not enure to the benefit of the peace and harmony in the society. On the other hand, it would enhance the animosity between two groups of the Society. In that view of the matter, I am of the considered opinion that the sentence of imprisonment requires to be set aside and in its place, they may be directed to pay the fine amount, which would meet the ends of Justice. Accordingly, the following order is passed:-
ORDER The appeal is allowed in part. The order of conviction recorded for the offences under Sections 341 and 355 of IPC and under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 against the appellants is hereby set aside and they are acquitted of the said offences. The order of conviction passed against the appellants for the offences under Sections 143, 147 and 323 of IPC., is hereby confirmed. However, the sentence of imprisonment for one month under Section 143 of IPC., is set aside and in its place, the appellants are directed to pay a fine of `500/- each for the said offence in default SI for 5 months. Order of sentence for six months for 15 the offence under Section 147 of IPC., is set aside and in its place, the appellants are sentenced to pay a fine of `1,000/- each in default to suffer SI for one month while the order of sentence for the offence under Section 323 of IPC., is maintained.
The appellants are given eight weeks time to deposit the enhanced fine amount, failing which, the trial Court is directed to execute the default sentence. Under the facts and circumstances of the case, I do not consider it necessary to award compensation to the Complainant.
Sd/-
JUDGE cp*