Bangalore District Court
The State By vs R.Narayanappa on 7 January, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 7 th day of January, 2020
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions &
Special Judge, Bengaluru.
Spl.C.NO. 144/2013
COMPLAINANT: The State by
Jeevanbhimanagara Police Station,
BENGALURU
(By Special Public Prosecutor)
V/s
ACCUSED: 1. R.Narayanappa
S/o Late Ramaiah
Aged about 75 years
R/at No.73, Brahmanandashrama
New Thippasandra, Bangalore.
2. Muniramaiah
S/o R. Narayanappa,
Aged about 38 years,
R/at No.73, Brahmanandashrama
New Thippasandra, Bangalore.
3. Ambareesh
S/o R. Narayanappa,
Aged about 35 years,
2 Spl.C.No. 144/2013
R/at No.73, Brahmanandashrama
New Thippasandra, Bangalore.
4. Chandrashekar
S/o R. Narayanappa,
Aged about 46 years,
R/at No.73, Brahmanandashrama
New Thippasandra, Bangalore.
5. Krishnamurthy
S/o R. Narayanappa,
Aged about 31 years,
R/at No.73, Brahmanandashrama
New Thippasandra, Bangalore.
(By Sri. B.M. Shyamprasad, Advocate)
1. Date of commission of offence: 21-12-2012
2. Date of report of occurrence : 21-12-2012
3. Date of commencement of : 26-09-2015
recording of evidence
4. Date of closing of evidence : 24-09-2019
5. Name of the Complainant : Muniraju
6. Offences Complained of : Sec. 143, 323, 324, 326, 504,
506 r/w 149 of I.P.C. and Sec.
3(1)(x) of S.C. & S.T. (P.A.) Act.
7. Opinion of the Judge : Accused are acquitted for the
offences p/u/s 326, 506 r/w
149 of IPC. Accused are
convicted for the offences p/u/s
143, 323, 324, 504 r/w 149 of
IPC.
3 Spl.C.No. 144/2013
JU DG M E NT
The Assistant Commissioner of Police, Halasuru Sub-
Division, Bengaluru has filed the Charge Sheet against the
accused No.1 to 5 for the offences punishable under Section
143, 323, 324, 326, 504, 506 r/w 149 of I.P.C., and under
Sec. 3(1) (x) of The Scheduled Caste & Scheduled Tribe
(Prevention of Atrocities) Act.
2. Based upon the first information lodged by C.W.1
Muniraju, J.B. Nagar police have registered the first
information report bearing Crime No. 386/2012. After
completion of the investigation charge sheet is submitted by
the Assistant Commissioner of Police, Halasuru Sub-Division
before the II Addl. City Civil & Sessions Judge & Special
Court, Bengaluru and based on the same the case in Spl. C.
No. 144/2013 registered against the accused. After
establishing this Exclusive Special Court, this case transferred
to this court as per the Notification No. ADM I (A) 599/17
dated 29.7.2017.
4 Spl.C.No. 144/2013
3. The case of the prosecution briefly stated as follows: -
CW.1 is the first informant belongs to Adi Karnataka
comes under Scheduled Caste. CW.3 Shashi Kumar is the
son, CW.4 Smt. Chandrakala is the daughter of CW.1
Muniraju. There is civil dispute pending between CW.1
complainant and accused No.1 in respect of property bearing
Sy. No.35/1 situated at HAL III Stage, New Thippasandra,
BEML Road, Bengaluru. The Court Commissioner was
appointed in O.S.No.2627/2006 in order to measure the
property. Hence, BBMP Engineer issued notice to the parties
to be present on 21.12.2012 in order to measure the property.
On 21.11.2012 at about 11.15 AM CW1 along with his friend
CW.2 Anand and his son and daughter CW.3 and 4 visited to
the land in Sy. No.35/1 along with the Executive Engineer in
order to survey the land. At that time the Accused persons
formed an unlawful assembly and with common object picked
up quarrel with CW.1 to CW.4 and in furtherance of their
common object the accused No.1 voluntarily assaulted CW.1
by pushing him outside the gate and accused No.4 and 5
5 Spl.C.No. 144/2013
assaulted CW.2 with hands and legs. Accused No.3 assaulted
CW.1 with cricket bat on his back side of his head and the
accused No.2 assaulted CW.2 with iron rod on his shoulder
and caused him bleeding injuries. Accused No.3 assaulted
CW.3 with cricket bat on his left shoulder and accused No.2
assaulted CW.3 with iron rod and accused No.3 assaulted
CW.2 with cricket bat and accused No.2 assaulted CW.2 with
iron rod and caused him grievous injuries. The accused
persons assaulted CW.1 to CW.4 and caused them injuries.
The accused persons abused CW.1 in filthy language as
"ನಮಮ ಮಮ ನನ ಕಕಯ, ಮದಗ ನನನ ಮಗನ, ಸಸತತನನಳಗ ಬರಬಬಡವ." The accused
persons criminally intimidated CW.1 by giving life threat to
him and accused persons abused CW.1 in the name of caste
as "ಮದಗ ನನನ ಮಗನ" and insulted and humiliated him within
public view. Based on the first information statement lodged
by CW.1 the J.B. Nagar Police registered the case in Crime No.
386/2012 and sent FIR to the court. The Investigating Officer
took up the investigation and visited to the place of incident
and conducted the panchamnama and seized one iron rod and
6 Spl.C.No. 144/2013
one bat. The Investigation Officer recorded the statements of
the witnesses. The I.O., after collecting the wound certificates
and after collecting the report regarding the caste of the
complainant and accused and after collecting all the materials
on completion of the investigation has filed the charge sheet
against the accused No.1 to 5 for the aforesaid offences.
4. On 31.12.2014 charges are framed against the
accused No.1 to 5 for the offences punishable under Section
143, 323, 324, 326, 504, 506 r/w 149 of I.P.C., and under
Sec.3(1) (x) of The Scheduled Caste & Scheduled Tribe
(Prevention of Atrocities) Act for which accused pleaded not
guilty and claimed to be tried.
5. During course of trial, on the side of the prosecution
12 witnesses have been examined as P.W.1 to P.W.12 and
documents Ex.P1 to Ex.P15 are marked. M.O.1 and 2 are
marked. During the course of cross-examination of PW.9 the
document Ex.D1 is marked on the side of the accused.
6. On 26.11.2019 the statement of the accused No.1 to 5
as required u/s 313 Cr.P.C. recorded by putting all
7 Spl.C.No. 144/2013
incriminating circumstances available on the side of the
prosecution. The accused persons have denied all the
incriminating circumstances found in the prosecution
evidence. The Accused No.1 has submitted his statement u/s
313(5) of Cr.P.C., and produced 9 documents along with the
list. The accused persons have not lead any defence evidence.
7. I have heard the arguments of the Learned Special
Public Prosecutor and the Learned Counsel for the accused
and perused the entire case papers. The learned counsel for
the accused also filed written arguments.
8. The learned Spl.P.P., submitted that in this case
there is sufficient evidence against the accused in respect of
the charges levelled against them. She argued that PW.1 M.
Muniraju is the complainant and injured has deposed in
consonance with his complaint averments. PW.2 Ananda
Setty is the injured and eye witness has deposed about this
incident and deposed about grievous injuries sustained by
him due to assault made by the accused. PW.3 Shashi
8 Spl.C.No. 144/2013
Kumar M is the injured and eye witness. PW.4 Chandrakala
is the injured and eye witness have supported the case of the
prosecution. PW.5 G. Ravindranath, Assistant Ward Engineer
of BBMP partly supported the case of the prosecution. PW.6
D. Ashok, Police Inspector registered the case based on Ex.P1
complaint lodged by PW.1. PW.7 Balaraju mahazar witness
turned hostile to the case of the prosecution. PW.8 Dr. Murali
Kumar who examined the PW.1 to PW.4 issued the Wound
Certificates supported the case of the prosecution. PW.9 N.
Narasimhaiah, ACP who conducted the investigation and filed
the charge sheet. PW.10 Ananda Ram and PW.11 Sathyanna
have apprehended the accused and produced before I.O.
PW.12 H.T. Manjappa, Tahasildar issued Ex.P13 report
regarding the caste of the complainant and accused. She
argued that PW.1 to PW.4 who are the injured and eye
witnesses have clearly deposed about the incident and their
evidence is also corroborating with the medical evidence and
evidence of Investigation Officer which would make it clear
that the accused persons have committed offences. She
9 Spl.C.No. 144/2013
argued that the accused persons knowing very well that the
PW.1 belongs to Scheduled Caste abused PW.1 in the name of
caste. She argued that the defence taken by the accused that
PW.1 to PW.4 criminally trespassed into the property and
assaulted them is not believable. She thus prays for convict
the accused for the above said charges.
9. The learned counsel for the accused No.1 to 5
submitted that a false complaint is lodged against the
accused persons in order to counter blast the criminal case
filed by the accused No.1 against PW.1 to PW.4. He argued
that the oral evidence of PW.1 is not corroborating with the
document Ex.P1 complaint and also not corroborating with
the oral evidence of PW.2 to PW.4. He argued that PW.1 has
deposed that he and PW.2 to 4 were treated by the different
doctors. He argued that there is no corroboration in the oral
evidence of PW.1 to PW.4 to show who actually assaulted
them. They have given different versions in this regard. He
argued that PW.1 in his examination-in-chief has deposed
that as the accused pushed PW.2 he fell down on the two
10 Spl.C.No. 144/2013
wheeler vehicle and sustained injuries. He submitted that
PW.1 has deposed that accused No.5 abused him in the name
of caste. But PW.2 to 4 have deposed that all the accused
persons abused PW.1 in the name of caste. He argued that
the chief-examination of PW.2 to PW.4 is quite contrary to
their own statement given before the police and contents of
the wound certificate. He argued that PW.5 who is examined
as eye witness has completely turned hostile to the case of
the prosecution. He submitted that except PW.1 to PW.4 no
other independent witnesses have supported the case of the
prosecution. He argued that the timing of giving treatment as
deposed by PW.1 to 4 is quite contrary to the wound
certificates and oral evidence of the doctor PW.8. He
submitted that PW.8 has deposed that PW.2 was treated by
Orthopaedic Surgeon but in this case the prosecution has not
examined the Orthopaedic Surgeon to show that PW.2 has
sustained grievous injuries. He argued that PW.9 the
Investigation Officer deposed about the ignorance of the
registering the counter case. He submitted that the evidence
11 Spl.C.No. 144/2013
of PW.9 clearly establishes that he has not made any efforts
to record the statements of any independent witnesses. He
submitted that the accused No.1 along with his statement
u/s 313 (5) of Cr.P.C., to produced the document such as
certified copies of judgment, plaint, order sheet of the civil
suit which clearly establishes that the accused are falsely
implicated in this case. He argued that PW.1 claiming the
right over the property bearing Sy. No.35/1 which is belongs
to accused No.1. He argued that the accused No.2 to 5 are
the sons of accused No.1 and they are all residing in the same
property bearing Sy. No.35/1 and BBMP Khatha No.80.
Hence the question of forming unlawful assembly does not
arise. He argued that there is no cogent evidence on the side
of the prosecution to show that the accused persons have
committed the offences punishable u/s 143, 323, 324, 326,
504, 506 r/w 149 of IPC and u/s 3(1)(x) of SC/ST (POA) Act.
He submitted that there is no cogent evidence on the side of
the prosecution to show that the accused persons have
12 Spl.C.No. 144/2013
committed the offences. Thus, he prays for acquittal of the
accused.
10. In support of his contentions, the learned counsel
for the accused relied upon the following decisions: -
1) (2008) 12 SCC 531 in Gorige Pentaiah vs. State of
Andhra Pradesh and others.
2) Criminal Petition No.2786 Hon'ble High Court of
Andhra Pradesh in P. Anand Rao and others vs. State
of A.P.
3) 2004 SCC Online Del 33 Daya Bhatnagar and others
State.
4) Criminal Appeal No.2509/2010 DD 22.2.2018
passed by Hon'ble High Court of Karnataka
(Dharwad Bench) in Fathima and others vs. State of
Karnataka.
5) 2004 SCC Online Bombay 1275 Suresh Shetye vs.
Shri Prasad Khalidas Divkar and others.
11. The learned Special Public Prosecutor has relied
upon the decision reported in 2010 (4) Crimes 86 (SC) in
Abdul Saveen vs. State of Madhya Pradesh.
12. Upon hearing, the following points arise for my
consideration:-
13 Spl.C.No. 144/2013
POINTS
Point No.1:- Whether the prosecution proves beyond all
reasonable doubt that on 21.12.2012 at
11.15 am at Sy. No.35/, BEML Road,
HAL III Stage, New Thippasandra within
the jurisdiction of J.B. Nagar Police
Station, the accused No.1 to 5 formed an
unlawful assembly with common object
to assault CW.1 to CW.4 and thus they
have constituted an unlawful assembly
and thereby the accused have committed
the offence punishable u/s 143 r/w 149
of IPC?
Point No.2:- Whether the prosecution proves beyond all
reasonable doubt that on the same day,
time and place, the accused persons by
forming unlawful assembly the accused
persons picked up quarrel with CW1 to 4
and assaulted them with hands and
kicked them and voluntarily caused them
simple injuries and thereby accused have
committed the offence punishable u/s
323 r/w 149 of IPC?
14 Spl.C.No. 144/2013
Point No.3:- Whether the prosecution proves beyond all
reasonable doubt that on the same day,
time and place, the accused persons in
furtherance of their common object,
accused No.3 assaulted CW.1 with
cricket bat and accused No.2 assaulted
CW.2 with iron rod and also assaulted
CW.3 and 4 with cricket bat and iron rod,
voluntarily caused them simple injuries
and thereby accused have committed the
offence punishable u/s 324 r/w 149 of
IPC?
Point No.4:- Whether the prosecution proves beyond all
reasonable doubt that on the same day,
time and place, the accused persons in
furtherance of their common object the
accused No.3 assaulted CW.2 with
cricket bat on his shoulder and accused
No.2 assaulted CW.2 with iron rod near
his left eye and caused CW.2 grievous
injuries and thereby accused have
committed the offence punishable u/s
326 r/w 149 of IPC?
Point No.5:- Whether the prosecution proves beyond all
15 Spl.C.No. 144/2013
reasonable doubt that on the same day,
time and place, the accused persons with
common object intentionally abused and
insulted C.W.1 so as to provoke him and
to break the public peace and thereby
accused have committed the offence
punishable u/s 504 r/w 149 of IPC?
Point No.6:- Whether the prosecution proves beyond all
reasonable doubt that on the same day,
time and place, the accused persons with
common object criminally intimidated
CW.1 by threatening to take away his life
and thereby caused alarm and thereby
committed the offence punishable u/s
506 r/w 149 of IPC?
Point No.7:- Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place, the accused not
being the members of Scheduled Caste or
Scheduled Tribe abused CW.1 who
belongs to Scheduled Caste in the name
of caste as "ಮದಗ ನನನ ಮಗನ" within public
view and thereby accused have
16 Spl.C.No. 144/2013
committed the offence punishable u/s
3(1)(x) of The Scheduled Caste & Scheduled
Tribe (Prevention of Atrocities) Act?
Point No.8: - What order?
13. My findings on the above points are as follows:
Point No.1:- In the Affirmative
Point No.2:- In the Affirmative
Point No.3:- In the Affirmative
Point No.4:- In the Negative
Point No.5:- In the Affirmative
Point No.6:- In the Negative
Point No.7:- In the Affirmative
Point No.8:- As per final order
for the following
REASONS
14. POINT No.1 to 7:- Since these points are interlinked
with each other to avoid repetition of facts and evidence and for
the sake of convenience they are taken up together for common
discussion.
15. P.W.1 M. Muniraju is the complainant and injured.
PW.2 Ananda Shetty is the injured and eye witness. PW.3
17 Spl.C.No. 144/2013
Shashi Kumar M and PW.4 Chandrakala are injured and eye
witnesses. PW.5 G. Ravindranath, Engineer of BBMP who
visited to the spot in order to conduct the survey is the eye
witness. PW.6 D. Ashok, Police Inspector registered the case on
21.11.2012 based on Ex.P1 complaint lodged by PW.1. PW.7
Balaraju is the mahazar witness. PW.8 Dr. Murali Kumar,
Chinmaya Mission Hospital issued Ex.P5, Ex.P7, Ex.P9 and
Ex.P11 wound certificates. PW.9 N. Narasimhaiah is the
Investigation Officer who conducted further investigation and
filed charge sheet. PW.10 Anantha Ram, PW.11 Sathyanna,
Head Constable and Police Constables respectively have
apprehended the accused and produced the accused before
ACP. PW.12 H.T. Manjappa, Tahasildar has issued Ex.P13
report regarding the caste of PW.1 and accused. In this case,
prior to proceed further, it is important to note some
undisputed facts in this case. It is not in dispute that there
was a civil suit pending between PW.1 and accused No.1 in
respect of the property bearing Sy. No.35/1. It is not in
dispute that the Court Commissioner was appointed in O.S.No.
18 Spl.C.No. 144/2013
2627/2006 and accordingly the Court Commissioner i.e.,
BBMP Engineer issued notice to the parties to be present on
21.12.2012 to execute commissioner work. Accused No.1
Narayanappa is the father of accused No.2 to 5. CW.1 (PW.1)
Muniraju is the father of CW.3 (PW.3) Shashi Kumar, CW.4
(PW.4) Smt. Chandrakala. The relationship is admitted. The
presence of the accused and PW.1 to PW.4 in the place of
incident is not in dispute. Admittedly the counter case in
Spl.C. No.462/2018 is also pending against PW.1 to PW.4.
Keeping in mind all these admitted facts I would like to discuss
the oral and documentary evidence of this case.
16. PW.1 M. Muniraju has deposed that CW.3 is his son,
CW.4 is his daughter, CW.2 is his friend. He belongs to Madiga
caste comes under Scheduled Caste. The accused persons
belongs to Vakkaliga community. The accused knows about
his caste. The land in Sy. No.35/1 situated at New
Thippasandra belongs to him. He has filed the suit in O.S. No.
2627/2006 in CCH-9 City Civil Court against the accused No.1
in respect of this property. In that suit, the court passed an
19 Spl.C.No. 144/2013
order to measure the land by appointing Court Commissioner.
That on 21.12.2012 one Ravindranath of BBMP came along
with him to that property in order to survey the property the
accused persons who came there not allowed to enter into the
property. He has deposed that the accused No.5 abused him in
the name of caste as "ಮದಗ ನನನ ಮಗನ" and pushed him with his
hands. At that time accused No.3 assaulted him with cricket
bat on his back. He has deposed that accused persons pushed
CW.2 forcibly hence CW.2 fell on the motor cycle and sustained
fracture of his right hand bone. When CW.3 and 4 came to the
place of incident at that time the accused persons assaulted
C.W3 and 4 with hands and kicked them. One Balaraju
pacified the quarrel. Thereafter he went to the police station
and lodged the complaint against the accused as per Ex.P1.
The police took him and CW.2 to the Chinamaya Mission
Hospital for treatment. His son and daughter also came to the
hospital for treatment. Thereafter the police visited to the place
of incident and conducted the mahazar. He has identified
MO.1 cricket bat and MO.2 iron rod and deposed that these
20 Spl.C.No. 144/2013
material objects were used by the accused to assault them. He
has identified Ex.P2 copy of the mahazar. During the course of
his cross-examination by the learned counsel for the accused
he has admitted the suggestion that he has filed four suits
against the accused No.1 in respect of the property bearing
No.35/1. He has admitted the suggestion that two suits filed
by him dismissed. He has admitted the suggestion that the
suit in O.S.No.2627/2006 also came to be dismissed. He has
denied the suggestion that the accused persons have not
abused him in the name of caste and also not assaulted him
and CW.2 to 4 and not caused any injuries. He has denied the
suggestion that he and CW.2 to 4 by criminally trespassing
into the property belongs to accused No.1 assaulted them and
given life threat to them. He has admitted the suggestion that
the accused No.1 has also filed criminal case in Crime
No.387/2012 in J.B. Nagar Police Station. He has deposed
that the different doctors have examined him and CW.2 to
CW.4. He had denied all other suggestions made to him.
21 Spl.C.No. 144/2013
17. P.W.2 Ananda Shetty has deposed that his house is
situated near the house of CW.1. Hence, he knows CW.1 since
21 years. The accused persons are also residing in the same
area. Hence, he also knows the accused. He has deposed that
CW.1/PW.1 called him on 20.12.2012 over phone by saying
that on the next day the court commissioner will visit his
property for survey. Hence, on the next day at about 10.30 to
11 AM he went to that property at that time CW.7, CW.1, CW.3,
CW.4 were there. CW.7 who came to conduct survey entered
into the property and asked CW.1 to come inside the property
even though CW.1 requested the accused, his presence is
required to measure the property, the accused persons not
allowed him to enter into the property. The accused persons
quarrelled with CW.1/PW.1 and abused him in the name of
caste as "ಮದಗ ನನನ ಮಗನ". The accused persons pushed PW.1,
at that time when he questioned the accused then the accused
persons who were holding the cricket bat and rod quarrelled
with him. Accused No.3 assaulted him with iron rod on his
shoulder and left eye and caused him bleeding injuries.
22 Spl.C.No. 144/2013
Accused persons also assaulted CW.1/PW.1, CW.3/PW.3,
CW.4/PW.4 with cricket bat, hands. He has deposed that due
to assault made by the accused he has sustained fracture on
both shoulder bones. He has taken treatment in Chinmaya
Mission Hospital for 1 ½ months and undergone surgery. He
has deposed that M.O.1 and 2 cricket bat and iron rod were
used by the accused to assault him. During the course of
cross-examination by the learned counsel for the accused PW.2
has deposed that as BBMP Assistant Executive Engineer
Ravindra called him to the place of incident, hence, he went to
that place. He has denied the suggestion that when the court
commissioner came to the property he along with PW.1, PW.3
and PW.4 and other 7 to 8 persons criminally trespassed into
the property belongs to the accused No.1 and given life threat
to accused No.1. he has admitted the suggestion that on the
basis of the complaint lodged by accused No.1 J.B. Nagar
Police registered the case against them. PW.2 has deposed that
the police took him to the hospital at about 12 noon. He has
denied all the suggestions made to him.
23 Spl.C.No. 144/2013
18. P.W.3 Shashi Kumar M has deposed that on
21.12.2012 as the court commissioner CW.7 came to the
property belongs to his father in order to survey the land.
Hence, he along with CW.1/PW.1, CW.2/PW.2, CW.4/PW.4
went to that property. Accused who were there in that
property prevented PW.1 from entering into the property and
abused them as "ಮದಗ ನನನ ಮಕಕಳ", accused No.3 assaulted
PW.1 with cricket bat on his back and head. Accused No.2
and 3 assaulted CW.2/PW.2 with iron rod on his hands, back
and head and caused him bleeding injuries. Accused No.2 to
5 pushed him and assaulted him with cricket bats on his
hands, head and back. PW.4 came to rescue him at that time
accused No.2 and 5 kicked her and pushed her. He has
deposed that his father PW.1 lodged the complaint to the
police. Thereafter they are taken treatment in Chinmaya
Mission Hospital. He has identified M.O.1 and M.O.2 by
stating that these material objects were used by the accused
to assault them. During the course of his cross-examination
by the learned counsel for accused PW.3 admitted the
24 Spl.C.No. 144/2013
suggestion that his father PW.1 has filed the suit in O.S.
No.7224/1993, O.S. No.4314/1996, O.S.No.4941/2004 and
O.S. No.2627/2006 against accused No.1 in respect of the
land in Sy. No.35/1. He has denied the suggestion when the
court commissioner came to measure the property at that
time he along with his father, his sister and PW.2 Ananda
Shetty and other 7 to 8 people criminally trespassed into the
property and assaulted these accused and given life threat to
them. He has admitted the suggestion that accused No.1 has
filed the complaint against them in J.B. Nagar Police Station.
He has deposed that he went to the hospital at about 1 PM to
1.30 PM and was taken treatment in the hospital till 4.30 to 5
PM. He has deposed that the same doctor who has given
treatment to him also given treatment to his sister and father
and PW.2. He has denied all the suggestions made to him.
19. P.W.4 Chandrakala has deposed that on 21.12.2012
CW7 came to the property belongs to her father in order to
conduct survey at that time she and PW.1 to 3 were present.
The accused persons who were present there not allowed
25 Spl.C.No. 144/2013
them to enter into the property. The accused persons abused
them in the name of caste as " ಮದಗ ನನನ ಮಕಕಳ". The accused
No.2 assaulted her father PW.1 with cricket bat on his back.
When her father fell down on the ground at that time accused
No.2 and 3 assaulted PW.1 with cricket bat and iron rod. The
accused persons also assaulted PW.3 with same weapons.
The accused No.2 and 3 also assaulted her with cricket bat
and also kicked her. Due to assault made by the accused
they are all sustained injuries and thereafter they went to the
police station and her father lodged the complaint. Thereafter
they have taken treatment in Chinmaya Hospital. She has
identified M.O.1 and M.O.2. During the course of her cross-
examination by the learned counsel for accused PW.4 has
admitted the suggestion that on 21.12.2012, the court
commissioner Ravindranath came to the property in order to
measure the land. She has denied the suggestion that she,
her father and brother, PW.2 Ananda Shetty and other 7 to 8
people criminally trespassed into the property. She has
denied the suggestions that the accused persons have not
26 Spl.C.No. 144/2013
assaulted her father and her brother. She has deposed that
different doctors were treated her and PW.1 to 3. She has
denied all other suggestions made to her.
20. P.W.5 G. Ravindranath has deposed that in the year
2012 he was working as Incharge Engineer of BBMP. CW.8
Lingappa was his higher officer. CW.8 Lingappa was
appointed as court commissioner in O.S.No. 2627/2006.
Accordingly CW.8 issued notice to both the parties to be
present in the spot on 21.12.2012. He has deposed that as
per the direction of CW.8 he went to the spot at 11 AM and in
order to verify the records he went inside the building of
accused Narayanappa. He has deposed that when he called
PW.1 Muniraju, Muniraju refused to come inside the building.
At that time out side the building near the gate quarrel taken
place. He has seen the accused Ambareesh and
Chandrashekar preventing Muniraju near the gate. At that
time number of people gathered in that place and quarrel
taken place. By seeing this, he thinking that it is not possible
to execute the commission warrant he returned to the office.
27 Spl.C.No. 144/2013
PW.5 has deposed that he do not know who was abused to
whom and who was assaulted to whom. Since PW.5 turned
hostile to the case of the prosecution at the instance of
learned Special Public Prosecutor PW.5 is treated as hostile
and permitted to cross-examine. During the course of his
cross-examination by the learned Special Public Prosecutor
PW.5 has denied all the suggestions made to him. He has
denied of giving any statement before the police as per Ex.P3.
PW.5 has not cross-examined by learned counsel for the
accused.
21. P.W.6 D. Ashok, Police Inspector has deposed that
on 21.12.2012 at about 3.45 PM he registered the case based
on Ex.P1 complaint lodged by the complainant and sent
Ex.P7 FIR to the court. On the next day he handed over the
case file to CW.15. During the course of his cross-
examination by the learned counsel for the accused, except
single question, no other questions or suggestions put to him.
PW.6 has deposed that he do not know the accused prior to
28 Spl.C.No. 144/2013
registering the case. Nothing is elicited from the mouth of
PW.6 to discard his examination-in-chief version.
22. P.W.7 Balaraju mahazar witness has completely
turned hostile to the case of the prosecution by stating that in
his presence the police have not conducted the panchanama
as per Ex.P2. The police took his signature on Ex.P2 in the
police station. Even though learned Special Public Prosecutor
cross-examined PW.7 in detail nothing is elicited from his
mouth to support the case of the prosecution.
23. P.W.8 Dr. Murali Kumar of Chinmaya Mission
Hospital has deposed that on 21.12.2012 at about 12.30 PM
he examined PW.1 Muniraju who was brought to the hospital
with history of assault by Anand, Muniramaiah, Narayanappa
and sons. He has deposed that he has examined Muniraju
and has found injuries as per Ex.P5 Wound Certificate. On
the same day he has also examined injured Ananda Shetty
and found injuries as mentioned in Ex.P7 wound certificate.
PW.8 has deposed that injury No.1 was grievous in nature
and injury No.2 mentioned in Ex.P7 simple in nature. PW.8
29 Spl.C.No. 144/2013
has deposed that on the same day he has examined injured
Shashi Kumar and found the injuries as per Ex.P9 wound
certificate. On the same day he has also examined injured
Chandrakala and found injuries as per Ex.P11 wound
certificate. He has deposed that these injuries which are
mentioned in Ex.P7, P9, P11 wound certificates is possible if
the injured assaulted with cricket bat or iron rods. PW.8 has
deposed that he has sent Ex.P6, P8, P10 and Ex.P12
intimation to the concerned police which was issued by CW.9
Dr. Saad. During the course of his cross-examination by the
learned counsel for the accused P.W.8 has admitted the
suggestion that he has personally examined the injured. He
has deposed that he gave first aid treatment to all the injured.
Thereafter injured Ananda Shetty examined by the
Orthopaedic Surgeon. He has deposed all four injured came
to the hospital at a time personally. He has admitted the
suggestion that these injuries shown in the wound certificate
may be possible in any accident also. He has denied the
suggestion that he has not examined the injured.
30 Spl.C.No. 144/2013
24. PW.9 N. Narasimhaiah, ACP has deposed that on
22.12.2012 he took up the case file from the Police Inspector
for further investigation. On the same day he visited to the
place of incident and conducted panchanama as per Ex.P2
and seized M.O.1 and M.O.2. He has recorded the statements
of Shashikumar, Chandrashekar, Sathish, Balaraj and the
statements of Head Constable Anantharam and Police
Constable Sathyanna and recorded the further statement of
the complainant Muniraju. On the same day J.B. Nagar
police produced accused Narayanappa, Muniramaiah and
Chandrashekar hence he arrested the accused and sent them
to the court along with remand application. On 4.1.2013 he
recorded the statement of Ananda Shetty. On 6.1.2013 he
has collected the wound certificates of injured Shashi Kumar,
Muniraju, Ananda Shetty and Chandrashekar from
Chinmaya Hospital. On 22.1.2013 he has recorded the
statement of witness Ravindranath and Lingaiah. On
15.2.2013 accused Ambareesh and Krishnamurthy appeared
before him along with anticipatory bail order copy. Hence, he
31 Spl.C.No. 144/2013
released them on bail. On 13.7.2013 he received Ex.P13
report regarding the caste of the complainant and accused.
He has identified Ex.P14 DCP Order. During the course of his
cross-examination by the learned counsel for the accused, the
document Ex.D1 copy of FIR No.387/2012 marked as he
admitted that on the basis of the complaint lodged by the
accused, the case was registered. PW.9 has denied all the
suggestions made to him.
25. PW.10 Anantharam and PW.11 Sathyanna have
deposed that on 22.12.2012 they apprehended the accused
No.1, 3 and 5, at 12.15 PM and produced them before ACP at
12.30 PM. During the course of their cross-examination
nothing is elicited from their mouth to discard their version.
26. PW.12 H.T. Manjappa, Tahasildar has deposed that
on 27.12.2012 he received a requisition of ACP who sought
for the caste certificate of the complainant and accused.
Hence, he after receiving the report from the Revenue
Inspector issued his report as per Ex.P13 on 24.6.2013
stating that complainant Muniraju is belongs to Adi
32 Spl.C.No. 144/2013
Karnataka caste comes under Scheduled Caste and accused
Narayanappa, Muniramaiah and Chandrashekar are belongs
to Vakkaliga caste. During the course of his cross-
examination by the learned counsel for the accused PW.12
has denied all the suggestions made to him.
27. Based on the above evidence, it has to be seen if the
prosecution has proved the charges against the accused
beyond all reasonable doubt. With regarding to the caste of
PW.1, PW.3 and PW.4 and accused, there is no much dispute.
PW.1 has deposed that he belongs to Scheduled Caste. PW.1
has deposed that the accused persons belongs to Vakkaliga
caste. This version of PW.1 not tested in his cross-
examination by the defence. PW.12 The Tahasildar who has
issued Ex.P13 report has deposed that on the basis of the
report received by him from the Revenue Inspector, he has
issued Ex.P13 report stating that complainant Muniraju is
belongs to Adi Karnataka caste and the accused
Narayanappa, Muniramaiah and Chandrashekar are belongs
to Vakkaliga caste. During the course of cross-examination by
33 Spl.C.No. 144/2013
PW.12 nothing is elicited from his mouth to discard his
examination-in-chief version and document Ex.P13 report.
The oral evidence of PW.1 which is supported by the oral
evidence of PW.12 and the document Ex.P13 is sufficient to
hold that PW.1 is belongs to Scheduled Caste and the
accused are belongs to Vakkaliga community which does not
comes under Scheduled Caste or Scheduled Tribes.
28. I have already noted down some of the admitted
facts in this case. Accused No.1 to 5 are all belongs to same
family. Accused No.1 is the father of accused No.2 to 5.
PW.1, PW.3 and PW.4 are belongs to same family. PW.1 is the
father of PW.3 and 4. The relationship is admitted'. It is
undisputed fact that the civil suits were pending between
PW.1 and accused No.1 in respect of the property bearing No.
35/1. It is also not in dispute that the court commissioner
was appointed in O.S.No.2627/2016 and the court
commissioner issued notice to both the parties of the said
suit to be present in the spot on 21.12.2012 in order to do the
commissioner work. The presence of PW.1 to PW.4 and
34 Spl.C.No. 144/2013
accused No.1 to 5 in the place of incident is not in dispute.
The accused persons have taken defence that PW.1 to PW.4
have criminally trespassed into the property and quarrelled
with them and assaulted them and given life threat to them.
Admittedly, the counter case in Spl. C. No. 462/2018 is also
pending against PW.1 to PW.4. The presence of PW.1 to PW.4
and accused persons in the place of incident on 21.12.2012
at about 11.15 AM in the place of incident i.e., in Sy. No.35/1
of HAL II Stage, New Thippasandra cannot be doubted. PW.5
G. Ravindranath, Assistant Engineer of BBMP has clearly
deposed that on 21.11.2012 at 11 AM he visited to the
disputed property in order to execute the court commissioner
work. At that time he heard the quarrel sound and came
near the gate and found that accused Ambareesh and
Chandrshekar i.e., accused No.3 and 4 quarrelling with
complainant Muniraju and not allowed him to come inside.
PW.5 has deposed that as number of persons gathered in that
place as he could not execute the commission warrant he
returned to the office. No doubt PW.5 has not deposed who
35 Spl.C.No. 144/2013
was assaulted to whom but PW.5 has clearly deposed that the
accused No.3 and 4 have prevented the complainant
Muniraju to enter into the property by preventing him near
the gate. Hence, the quarrel taken place. PW.5 is not cross-
examined by the learned counsel for the accused. It is now
settled principle of law is that merely because the witness
turned hostile, their evidence cannot be discarded. The
Hon'ble Supreme Court in the decision reported in 2010 SAR
(Cal) 382 Paramajith Singh @ Pamma V/s State of
Uttarkhand held that the deposition of hostile witnesses can
be relied upon at least upto the extent they supported the
case of the prosecution. The Hon'ble Supreme Court in the
case of Birju V/s State of Madhyapradesh reported in
(2014)3 SCC 421 held that the evidence of hostile witness
cannot be discarded as a whole and relevant parts there of
which are admissible in law can be used either by the
prosecution or by the defence. Applying the principles of
these two cited decisions to the present case, even though
PW.5 has turned hostile to the case of the prosecution, but
36 Spl.C.No. 144/2013
PW.5 has clearly deposed that near the gate accused No.3
Ambarish and accused No.4 Chandrashekar by quarrelling
with PW.1 Muniraju prevented him to enter into the property
and at that time the quarrel taken place between both the
parties. The learned counsel for the accused vehemently
argued that there is no corroboration in the oral evidence of
PW.1 to PW.4 regarding the alleged assault made by the
accused to them. He argued that the oral evidence of PW.1 to
PW.4 is also not corroborating with the medical evidence.
This argument of the learned counsel for the accused is not
acceptable. PW.8 Dr. Murali Kumar has clearly deposed that
he examined PW.1 to PW.4 who came to the Chinmaya
Mission Hospital with the history of assault. PW.8 has
issued the wound certificates of PW.1 to PW.4 as per Ex.P5,
Ex.P7, Ex.P9, Ex.P11 respectively. PW.8 Doctor also deposed
about sending the intimation to the police as per Ex.P6, P8,
P10 and P12. PW.8 Doctor has deposed that on examination
of injured Muniraju he found injuries has mentioned in
37 Spl.C.No. 144/2013
Ex.P.5 wound certificate. In Ex.P.5 wound certificate it is
mentioned that Muniraju sustained following injuries:-
(1) Tenderness over the right shoulder and painful
restrict movements of right shoulder.
(2) Tenderness over L S spine and pelvis.
P.W.8 has opined that the injury No.1 and 2 sustained by
Muniraju is simple in nature. In Ex.P.7 wound certificate of
P.W.2 Anand Shetty the following injuries are mentioned:-
(1) Tenderness with deformity with painful restricted
movements of the right shoulder joint (X-ray of the right
shoulder joint shows fracture dislocation of the right shoulder
joint) - Axillary Nerve Palsy.
(2) Abrasion over the left eye lower eyelid.
P.W.8 has opined that injury No.1 is grievous in nature and
injury No.2 simple in nature. In Ex.P.9 wound certificate of
P.W.3 Shashi Kumar the following injuries are mentioned:-
(1) Contusion over the survical spain (2 x 1 cm)
(2) Contusion over the right shoulder (2 x 2 cm)
(3) Contusion over the left shoulder (2 x 2 cm).
38 Spl.C.No. 144/2013
The age of the wound is mentioned as half an hour to one
hour. PW.8 Doctor has opined that the injury mentioned in
Ex.P9 are simple in nature. In Ex.P11 wound certificate of
PW.4 Chandrakala, the following injury is mentioned.
Tenderness over right knee with painful restricted movement
of the right knee. PW.8 opined that the injury sustained by
Chandrakala is simple in nature. During the course of the
cross-examination of PW.8 Doctor has admitted the
suggestion that he has personally examined the injured and
he gave first aid treatment to all the injured. Thereafter
Ananda Shetty only examined by Orthopaedic Surgeon. In
the cross-examination of PW.8, the learned counsel for the
accused put a suggestion to this witness PW.8 that such
injuries mentioned in the wound certificate may be possible
in accident. No doubt, PW.8 admitted the suggestion that
such injuries which are mentioned in wound certificate are
possible with accident also. But fact remains that on
21.11.2012 PW.1 to PW.4 have taken treatment in the
Chinmaya Mission Hospital for the injuries sustained by them
39 Spl.C.No. 144/2013
cannot be doubted. In Ex.P5, P7, P9 and Ex.P11 wound
certificates, the doctor has clearly mentioned that the patient
come to the hospital with history of assault. PW.8 Doctor in
his examination-in-chief has clearly deposed that the injured
Muniraju, Ananda Shetty, Shashi Kumar and Chandrakala
brought to the Casualty of Chinmaya Mission Hospital with
history of assault on the same day by Ananda, Muniramaiah,
Narayanappa and sons. PW.1 to PW.4 who have sustained
injuries at the hands of the accused and taken treatment in
Chinmaya Mission Hospital, Bengaluru, in their oral evidence
have clearly deposed that they have sustained injuries due to
assault made by the accused. The oral evidence of PW.1 to
PW.4 is very clear that Accused No.2 and 3 were holding iron
rod and cricket bat in their hands.
29. The learned Special Public Prosecutor has relied
upon the decision reported in 2010(4) Crimes 86 (SC) in
Abdul Sayeed vs. State of Madhya Pradesh to contend that
Criminal Trial - Eye witnesses and medical evidence -
Consistent and reliable evidence of eye witnesses will prevail
40 Spl.C.No. 144/2013
upon medical evidence even if at variance. In para-22 of the
same judgment wherein it is held that "In cases where there
are a large number of assailants, it can be difficult for a
witness to identify each assailant and attribute a specific role
in him (Relied upon the judgment reported in Masalti vs.
State of Uttar Pradesh). Further in para No.22, it is observed
"A similar view was taken by this Court in Kallu alias Masih
& Ors., v. State of Madhya Pradesh (2006) 10 SCC 313 and
Viji & Another vs. State of Karnataka , (2008) 15 SCC 786
observing that in such a case it is not possible that all the
witnesses may specifically refer to the acts of each assailants.
30. The principles of the decision cited by the learned
Special Public Prosecutor is aptly applicable to the present
case. In this case, no doubt during the course of the oral
evidence of PW.1 he has deposed the accused No.3 assaulted
him with bat on his back but in his Ex.P1 complaint, it is
mentioned that accused No.2 assaulted him with bat on his
back. In the oral evidence of PW.2 he has deposed that the
accused No.3 has assaulted him with iron rod on his
41 Spl.C.No. 144/2013
shoulder and left eye and caused him injuries. PW.2 has
deposed that the accused persons assaulted PW.1, PW.3 and
PW.4 with cricket bat and with hands. PW.3 has deposed
that the accused No.3 assaulted PW.1 with cricket bat on his
back and head and accused No.2 and 3 have assaulted PW.2
with iron rod on his hand, back and head and accused No.2
to 5 have pushed him and assaulted him with cricket bat and
with hands and when PW.4 came to rescue him at that time
the accused No.2 and 5 kicked her and pushed her. PW.4
has deposed that the accused No.2 assaulted her father PW.1
with bat on his back and accused No.2 and 3 assaulted PW.1
with cricket bat and iron rod and accused No.2 and 3
assaulted her with cricket bat and also kicked her. If we
peruse the oral evidence of PW.1 to PW.4 one thing is very
clear that the accused No.2 and 3 were holding the cricket
bat and iron rod in their hands and made use of the same to
assault PW.1 to PW.4. It is important to note some of the
decisions of Hon'ble Supreme Court.
42 Spl.C.No. 144/2013
31. The Hon'ble Supreme Court in the case of State of
Himachal Pradesh-Vs Lekh Raj and another reported in
AIR 1999 SC 3916, has held that 'Minor discrepancies or
variance in evidence will not make the prosecution case
doubtful".
32. In the case of Rammi @ Rameshwar V/s State of
Madhya Pradesh reported in AIR 1999 SC 3544, the
Hon'ble Supreme Court has held that "When eye-witness is
examined at length it is quite possible for him to make some
discrepancies. No true witness can escape from making some
discrepant details. Perhaps an untrue witness who is well
tutored can successfully make his testimony totally non-
discrepant. But courts should bear in mind that it is only
when discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that the court
is justified in jettisoning his evidence. But too serious a view
to be adopted on mere variations falling in the narration of an
incident (either as between the evidence of two witnesses or
43 Spl.C.No. 144/2013
as between two statements of the same witness) is an
unrealistic approach or judicial scrutiny".
33. The Hon'ble Supreme Court, in the case of State of
Haryana V/s Bhagirath and others reported in 1999(5)
SCC 96, has held that "It is impossible in any criminal trial
to prove all elements with scientific precision. Benefit of doubt
is not a legal dosage to be administered at every segment of
evidence but an advantage to be afforded to the accused at
the final end after consideration of entire evidence if the judge
conscientiously and reasonably entertains doubts." In view of
the principle laid down in the aforesaid decisions, it is clear
that the court need not concentrate on the minor
discrepancies when there is cogent evidence to prove the case
of the prosecution.
34. When the oral evidence of PW.1 to PW.4 read as
whole there is clear evidence on the side of the prosecution to
show that the accused No.1 to 5 with common object
quarrelled with PW.1 to PW.4 and assaulted them with iron
44 Spl.C.No. 144/2013
rod and with cricket bat and with hands and caused them
simple injuries. The learned counsel for the accused
vehemently argued that ingredients of Sec. 143 of IPC is not
attracted to this case by contending that accused No.1 to 5
are all members of same family and residing together in
property bearing No.35/1 and it cannot be treated as an
assembly. He further argued that even if it is true as an
assembly the object of the father and children living together
cannot be said as unlawful. This argument of the learned
counsel for the accused is not acceptable because even if it is
admitted that accused No.1 to 5 are living together in the
house situated in Sy. No.35/1, they had no right to assault
PW.1 to PW.4 who came to that place for court commissioner
work. P.W.5 Ravindranath who visited to the place in order to
execute the court commissioner work has clearly deposed
that the accused No.3 Ambareesh and accused No.4
Chandrashekar were prevented PW.1 Muniraju to enter inside
the gate. At that time the quarrel taken place. Even though
initially the accused No.1 to 5 were in the house but when the
45 Spl.C.No. 144/2013
court commissioner PW.5 came to the place in order to
measure the land at that time when PW.1 also came to that
property, the accused persons prevented PW.1 from entering
into the property. PW.1 to PW.4 in their oral evidence have
clearly deposed that the accused persons prevented PW.1
from entering into the property along with the court
commissioner for measurement of the property. There is
clear evidence on the side of the prosecution to show that the
accused persons with common object formed an unlawful
assembly and in furtherance of their common object they
prevented PW.1 from entering into the property along with
court commissioner which leads to quarrel taken place
between two groups. The oral evidence of PW.1 to PW.4
which is supported by the documents Ex.P5, Ex.P7, Ex.P9,
Ex.P11 wound certificates are sufficient to hold that due to
assault made by the accused with hands and with iron rod
and cricket bat, PW.1 to PW.4 have sustained simple injuries.
The oral evidence of PW.1 to PW.4 and the oral evidence of
PW.5 which is supported by the oral evidence of PW.8 Doctor
46 Spl.C.No. 144/2013
and documents Ex.P5, P7, P9, P11 wound certificates are
sufficient to hold that the accused persons with common
object formed an unlawful assembly and in furtherance of
their common object the accused persons assaulted PW.1 to
PW.4 with hands and with iron rod and cricket bat and
caused them simple injuries.
35. With regarding the offence u/s 3(1)(x) of The
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
Act is concerned, the burden of proof is strictly on the
prosecution to establish that there was commission of such
an offence and the allegations that the accused by using
derogatory expressions with reference to the caste of PW.1 in
public view with an intention to insult or humiliate him. The
learned counsel for the accused vehemently argued that the
provisions of Sec. 3(1)(x) of The Scheduled Caste & Scheduled
Tribe (Prevention of Atrocities) Act does not attracts to this
case. He argued that there is no independent witness
examined in this case, except the close relatives and
associates of the complainant. Hence, Sec. 3(1)(x) of The
47 Spl.C.No. 144/2013
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
Act is not applicable. He relied upon the following decisions
reported in
1) (2008) 12 SCC 531 in Gorige Pentaiah vs. State of
Andhra Pradesh and others.
2) Criminal Petition No.2786 Hon'ble High Court of
Andhra Pradesh in P. Anand Rao and others vs. State
of A.P.
3) 2004 SCC Online Del 33 Daya Bhatnagar and others
State.
4) Criminal Appeal No.2509/2010 DD 22.2.2018
passed by Hon'ble High Court of Karnataka
(Dharwad Bench) in Fathima and others vs. State of
Karnataka.
5) 2004 SCC Online Bombay 1275 Suresh Shetye vs.
Shri Prasad Khalidas Divkar and others.
36. On the other hand, the learned Special Public
Prosecutor submitted that PW.1 to PW.4 have clearly deposed
that the accused persons abused PW.1, PW.3 and PW.4 in the
name of caste and insulted and humiliated them within
public view. She submitted that PW.2 who is not the member
48 Spl.C.No. 144/2013
of the family of PW.1, PW.3 and PW.4 also supported the case
of the prosecution.
37. I have appreciated the rival contentions. PW.1 has
clearly deposed that the accused No.5 abused him in the
name of caste as "ಮದಗ ನನನ ಮಗನ". PW.2 has deposed that the
accused persons prevented PW.1 to enter into the property
along with the court commissioner and abused PW.1 in the
name of caste as "ಮದಗ ನನನ ಮಕಕಳ" and accused persons
assaulted PW.1 and pushed him. PW.3 Shashi Kumar also
deposed that when PW.1 was entering into the property at
that time the accused persons prevented him and abused
PW.1 as "ಮದಗ ನನನ ಮಕಕಳ". PW.4 Chandrakala has also deposed
that when they were entered into the property along with
court commissioner at that time the accused persons not
allowed them to enter into the property and abused them in
the name of caste as "ಮದಗ ನನನ ಮಕಕಳ". The oral evidence of
PW.1 to PW.4 are consistent with regarding the derogatory
words used by the accused in order to abuse PW.1, PW.3 and
PW.4 in the name of caste. No doubt PW.1 has deposed that
49 Spl.C.No. 144/2013
that accused No.5 abused him in the name of caste and
remaining witnesses PW.2 to PW.4 have deposed that all the
accused persons abused PW.1 in the name of caste. The oral
evidence of PW.1 to PW.4 are corroborating and consistent
with regarding to the abusive language used by the accused
in order to abuse PW.1 in the name of caste. They have
clearly deposed exact word used by the accused to abuse
PW.1 in the name of caste. There is clear and cogent evidence
on the side of the prosecution to show that the accused
persons abused PW.1 by naming his caste with an intention
to humiliate him within public view. The arguments of the
learned counsel for the accused is that there is no
independent witnesses other than the close relatives of PW.1
is not acceptable. PW.2 is not the relative of PW.1, PW.3 and
PW.4. PW.2 who went to the place of incident as a friend of
PW.1 also deposed that the accused persons have abused
PW.1 in the name of caste. There is no dispute regarding the
principles of the decisions cited by the learned counsel for the
accused. In my humble view, these decisions cited by the
50 Spl.C.No. 144/2013
learned counsel for the accused can be distinguished on
facts. In the present case, PW.2 even though he is injured eye
witness, he is independent witness who is not related to PW.1
to PW.3 and PW.4. PW.2 has also deposed about the abusive
language used by the accused in order to abuse PW.1 in the
name of caste. PW.5 even though has turned hostile to the
case of the prosecution, has clearly deposed that when
accused No.3 Ambareesh and accused No.4 Chandrashekar
were prevented PW.1 by shouting against them from entering
into the property at that time the number of people gathered
in that place. Hence, thinking that he could not execute the
court commissioner work, he returned. PW.5 has also
deposed that there are number of people gathered in the place
of incident. Under such circumstances, it cannot be held
that the abusive language used by the accused to abuse PW.1
in the name of caste is not within public view. There is clear
evidence on the side of the prosecution to show that the
accused persons abused PW.1, PW.3 and PW.4 in the name of
caste as "ಮದಗ ನನನ ಮಕಕಳ" and insulted and humiliated them
51 Spl.C.No. 144/2013
within public view. There is clear and cogent evidence on the
side of the prosecution to show that the accused persons
have committed the offence punishable u/s 3(1)(x) of The
SC/ST (POA) Act.
38. With regarding to Sec. 326 of IPC is concerned, the
burden is upon the prosecution to show that in order to
attract Sec. 326 of IPC, the prosecution must establish that
'hurt' falls within one of the categories out of 8 categories of
injuries mentioned in Sec. 320 of IPC. In the present case,
PW.2 has deposed that he has sustained fracture in both the
shoulder. PW.2 Has deposed that he was taken treatment in
Chinmaya Mission Hospital for 1 ½ months as in patient and
undergone surgery. In this case, the prosecution has not
produced any document to show that PW2 has taken
treatment as inpatient in Chinmaya Mission Hospital. PW.8
Doctor has deposed that injured Ananda Shetty taken
treatment in their hospital as in patient for one day. PW.8
has deposed that the Injury No.1 mentioned in Ex.P7 wound
certificate is grievous in nature and injury No.2 was simple in
52 Spl.C.No. 144/2013
nature. PW.8 in his cross-examination has deposed that he
was given first aid treatment to injured Ananda Shetty and
thereafter Ananda Shetty was examined by Orthopaedic
Surgeon. In this case, the prosecution has not examined any
Orthopaedic Surgeon and also not produced X-Ray Report, X-
Ray Films to show that PW.2 has sustained fractural injuries.
The learned counsel for the accused rightly argued that in the
absence of examination of the Orthopaedic Surgeon and in
the absence of production of the documents such as X-Ray
Report, X-Ray Film it cannot be held that PW.2 has sustained
grievous injuries. In the present case, the prosecution has
not produced any inpatient record to show that PW.2 has
taken treatment as inpatient in hospital. The prosecution
has also not produced the X-ray film, inpatient record to
show that PW.2 has sustained fractural injuries. There is no
cogent evidence on the side of the prosecution to show that
injury No.1 mentioned in Ex.P7 wound certificate was
grievous in nature. The prosecution has failed to prove the
necessary ingredients of Sec. 320 of IPC. Hence, I am of the
53 Spl.C.No. 144/2013
opinion that the prosecution has failed to prove that PW.2
was sustained grievous injuries. However, there is clear and
cogent evidence on the side of the prosecution to show that
PW.1 to PW.4 have sustained simple injuries.
39. With regarding to Sec. 504 r/w 149 of IPC., is
concerned there is clear evidence on the side of the
prosecution to show that the accused persons abused PW.1 in
filthy language and in the name of caste. The very abuse
made by the accused as " ಮದಗ ನನನ ಮಕಕಳ" is sufficient to hold
that the accused persons have committed the offence
punishable u/s 504 r/w 149 of IPC. It has come in the
evidence of PW.1 to PW.4 is that the accused persons
prevented PW.1 from entering into the property and abused
PW.1 as "ಮದಗ ನನನ ಮಕಕಳ" which lead the quarrel taken place
between the parties. So for as offence u/s 506 of IPC., is
concerned there is no cogent evidence on the side of the
prosecution to show that the accused persons have criminally
intimidated by giving life threat to PW.1 to PW.4. PW.1 to
54 Spl.C.No. 144/2013
PW.4 have not clearly deposed regarding the criminal
intimidation by giving life threat.
40. The learned counsel for the accused argued that
accused No.1 is the owner of the property bearing Sy.
No.35/1. He argued that PW.1, family claimed that the
property bearing Sy. No.35/1 belongs to him. In this case,
along with 313 statement filed by accused No.1 he has
produced 9 documents such as original Khatha Certificate,
original Khatha Extract, certified copy of judgment in O.S.No.
7224/1993, certified copy of plaint in O.S.No. 4941/2004,
certified copy of order sheet in O.S.No.4941/2004, certified
copy of plaint in O.S.No. 2627/2006, certified copy of order
sheet in O.S.No.2627/2006, certified copy of order in W.P. No.
8136/2008, certified copy of the Commissioner Report in
O.S.No. 2627/2006. There is no dispute regarding the
pendency of the civil suits pending between accused No.1 and
PW.1. The question of the ownership of the property bearing
Sy. No.35/1 to be decided by the civil court. It is the specific
case of the prosecution is that this incident was occurred on
55 Spl.C.No. 144/2013
21.12.2012 when the court commissioner came to the
property in order to measure the property. Even if it is to be
presumed that the accused persons were in possession of the
property that cannot give them licence to assault PW.1 to
PW.4. The documents pertaining to the property and the
copy of judgment in civil suits are not helpful to the accused.
The oral evidence of PW.1 to PW.5, which is supported by the
medical evidence of PW.8 doctor who issued would certificates
and the oral evidence of PW.9 ACP Investigation Officer and
PW.6 Police Inspector who registered the case are consistent
with regarding to the incident. The arguments of the learned
counsel for the accused is that there is variance in the timing
of taking treatment by PW.1 to PW.4 and with regarding to
the number of doctors examined them. These variances are
all trivial in nature. During the course of cross-examination
of PW.8 Doctor, a suggestion is put to him that he has
personally examined the injured. PW.8 admitted the
suggestions that he has personally examined the injured.
Under such circumstances, merely because PW.1 and PW.4
56 Spl.C.No. 144/2013
have deposed that different doctors have treated them that
cannot be a ground to doubt the oral evidence of PW.1 to
PW.4 and PW.8. The oral evidence of PW.1 to PW.4 are
consistent with regard to the overt act of the accused persons
in assaulting them with hands with cricket bat and iron rod
and there is absolutely no reason to disbelieve their version.
The accused persons have formed an unlawful assembly and
in furtherance of their common object assaulted PW.1 to PW.4
with hands and with cricket bat and iron rod and caused
them simple injuries. The accused persons abused PW.1 in
the name of caste and insulted, humiliated him within public
view. There is no delay in lodging the complaint. On the date
of incident itself PW.1 lodged the complaint and based on the
same, PW.6 registered the case and sent FIR to the court.
The prosecution has successfully proved that the accused
persons have committed the offence punishable u/s 143,
323, 324, 504, 506 r/w 149 of IPC and u/s 3(1)(x) of The
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
Act. However, the prosecution has failed to prove offences
57 Spl.C.No. 144/2013
punishable u/s 326, 506 r/w 149 of IPC. Thus, on overall
consideration of the evidence on record and after separate
chop from the grain, it is noticed that the evidence of PW.1 to
PW.4, PW.5, PW.6, which is supported by the medical
evidence of PW.8 and evidence of PW.9 are consistent with
regard to the role played by the accused No.1 to 5 for the
commission of offences punishable under Section 143, 323,
324, 504 r/w 149 of I.P.C., and u/s 3(1)(x) of The Scheduled
Caste & Scheduled Tribe (Prevention of Atrocities) Act.
However, the prosecution has failed to prove that the accused
persons have committed the offences punishable u/s 326,
506 r/w 149 of I.P.C. The prosecution has proved the accused
persons committed the offences punishable u/s 143, 323,
324, 504 r/w 149 of I.P.C., and u/s 3(1)(x) of The Scheduled
Caste & Scheduled Tribe (Prevention of Atrocities) Act.
Accordingly, I answered point No.1 to 3, 5 to 7 in the
Affirmative, point No.4 and 6 in the Negative.
41. Point No.8: - In view of my findings on points No.1
to 7, I proceeds to pass the following:-
58 Spl.C.No. 144/2013
OR D E R
Exercising jurisdiction conferred upon me
under Section 235(1) of Cr.P.C., the accused No.1
to 5 have not guilty of the offences punishable
under Sec. 326, 506 r/w 149 of I.P.C. and
accordingly they are acquitted of the said offences.
Exercising jurisdiction conferred upon me
u/s 235(2) of Cr.P.C. I hereby find accused No.1 to
5 guilty of the offences punishable u/s 143, 323,
324, 504 r/w 149 of I.P.C., and u/s 3(1)(x) of The
Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act.
The properties M.O.1 and 2 being worthless
are ordered to be destroyed after completion of the
appeal period.
The case posted for hearing on quantum of
sentence to be imposed on the accused.
(Dictated to the Judgment Writer transcribed by him, some
paragraphs are directly inserted on the computer, transcript
corrected, signed and then pronounced by me in open Court
on this the 7th day of January, 2020.)
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bengaluru.
59 Spl.C.No. 144/2013
ORDER REGARDING SENTENCE DATED 07.01.2020
Heard the learned counsel for the accused/convict and
learned Special Public Prosecutor on the quantum of
sentence to be imposed on the convict/accused No.1 to 5 for
the offences punishable u/s 143, 323, 324, 504 r/w 149 of
IPC and u/s 3(1)(x) of The Scheduled Caste & Scheduled
Tribe (Prevention of Atrocities) Act which are proved against
them.
The learned counsel for the accused submitted that the
accused persons were not abused the complainant in the
name of caste and they are innocent of the offences. He
submitted that accused No.1 is Senior Citizen and accused
No.2 to 5 are the sons of accused No.1 and they are the
members of the same family. The accused are not involved in
any other cases or convicted in any other criminal cases.
They are permanent residents of Bangalore. He thus prays for
taking a lenient view in the matter in imposing sentence.
60 Spl.C.No. 144/2013
On the other hand, the learned Special Public
Prosecutor prays to impose maximum sentence as prescribed
in each section and also prayed to grant compensation to the
victim.
Considering the nature of the injuries sustained by
PW.1 to PW.4 due to assault and by considering the manner
in which the quarrel taken place between the accused and
PW.1 to PW.4, and such offence committed by the accused
within the public view, I am of the view that the accused/
convict are not entitled any benefit u/s 3 and 4 of the
Probation of Offenders Act. More than than since it is proved
that the accused are committed the offence punishable u/s
3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention
of Atrocities) Act. The accused are not entitled for benefit
under the provisions of Probation of Offenders Act. Hence,
this court is declined to grant any benefit to the accused/
convict under the provisions of Probation of Offenders Act.
The accused No.1 is the Senior Citizen, accused No.2 to
5 are the sons of accused No.1. They are all residing within
61 Spl.C.No. 144/2013
the jurisdiction of this court. It is not the case of the
prosecution is that they are involved in any othe rcase or
convicted in any other cases. This is the mitigating
circumstance. It can be seen that due to assault made by
accused PW.1 to PW.4 have sustained simple injuries.
Accused persons quarrelled with PW.1, PW.3, PW.4 who
belongs to Scheduled Caste and humiliated them within
public view and caused injuries to PW.1 to PW.4, this is the
aggravated circumstance.
Considering the facts of the case and considering the
nature of injuries sustained by PW.1 to 4, I am of the opinion
that the accused shall be punished with sentence of
imprisonment and fine. Considering the facts and
circumstances of the case, I pass the following:
ORDER
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 143 r/w 149 of IPC.
62 Spl.C.No. 144/2013The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 323 r/w 149 of IPC and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for six months for the offence punishable u/s 324 r/w 149 of IPC and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 504 r/w 149 of IPC.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for six months for the offence punishable u/s 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for one month.
63 Spl.C.No. 144/2013The substantive sentence shall run concurrently.
The office is directed to issue intimation to the Social Welfare Department to award compensation to PW.1, PW.3 and PW.4 under Schedule of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act.
Office is directed to furnish the copy of the judgment to the convicts as required u/s 363(1) of Cr.P.C.
(Dictated to the Judgement Writer, transcribed by him, corrected, signed and then pronounced in open court on this the 7th day of January, 2020.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge and Special Judge, Bengaluru.
64 Spl.C.No. 144/2013A NN E X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : M. Muniraju
P.W.2 : Ananda Shetty
P.W.3 : Shashikumar M
P.W.4 : Chandrakala
P.W.5 : G. Ravindranath
P.W.6 : D. Ashok
P.W.7 : Balaraj
P.W.8 : Dr. Murali Kumar
P.W.9 : N. Narasimhaiah
P.W.10 : Anantharama
P.W.11 : Sathyanna
P.W.12 : H.T. Manjappa
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P1(a) : Signature of P.W.1
Ex.P1(b) : Signature of P.W.6
Ex.P. 2 : Spot Mahazar
Ex.P2(a) : Signature of P.W.
Ex.P2(b) : Signature of P.W.
Ex.P3 : Statement of P.W.5
Ex.P4 : FIR
Ex.P4(a) : Signature of PW.6
Ex.P 5 : Wound Certificate
Ex.P5(a) : Signature of P.W.8
Ex.P6 : Intimation
Ex.P7 : Wound Certificate
Ex.P7(a) : Signature of PW.8
Ex.P8 : Intimation
Ex.P9 : Wound Certificate of Shashi Kumar
Ex.P9(a) : Signature of P.W.8
Ex.P10 : Intimation
Ex.P10(a) : Signature of PW.8
65 Spl.C.No. 144/2013
Ex.P11 : Wound Certificate of Chandrakala
Ex.P12 : Intimation
Ex.P13 : Caste Report
Ex.P13(a) : Signature of P.W.11
Ex.P14 : DCP Order
Ex.P15 : Statement
Ex.P15(a) : Signature of PW.10
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D1 : FIR in Crime No.387/2012
5. LIST OF MATERIAL OBJECTS:
M.O.1 : Cricket Bat
M.O.2 : Iron rod
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
66 Spl.C.No. 144/2013Order pronounced in the open court vide separate order ORDER REGARDING SENTENCE DATED 07.01.2020 Heard the learned counsel for the accused/convict and learned Special Public Prosecutor on the quantum of sentence to be imposed on the convict/accused No.1 to 4 for the offences punishable u/s 143, 323, 324, 504 r/w 149 of IPC and u/s 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act which are proved against them.
The learned counsel for the accused submitted that the accused persons were not abused the complainant in the name of caste and they are innocent of the offences. He submitted that accused No.1 is Senior Citizen and accused No.2 to 5 are the sons of accused No.1 and they are the members of the same family. The accused are not involved in any other cases or convicted in any other criminal cases. They are permanent residents of Bangalore. He thus prays for taking a lenient view in the matter in imposing sentence.
On the other hand, the learned Special Public Prosecutor prays to impose maximum sentence as prescribed in each section and also prayed to grant compensation to the victim.
Considering the nature of the injuries sustained by PW.1 to PW.4 due to assault and by considering the manner in which the quarrel taken place between the accused and PW.1 to PW.4, and such offence committed by the accused within the public view, I am of the view that the accused/ convict are not entitled any benefit u/s 3 and 4 of the Probation of Offenders Act. More than than since it is proved that the accused are committed the offence punishable u/s 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. The accused are not entitled for benefit under the provisions of Probation of Offenders Act. Hence, 67 Spl.C.No. 144/2013 this court is declined to grant any benefit to the accused/ convict under the provisions of Probation of Offenders Act.
The accused No.1 is the Senior Citizen, accused No.2 to 5 are the sons of accused No.1. They are all residing within the jurisdiction of this court. It is not the case of the prosecution is that they are involved in any othe rcase or convicted in any other cases. This is the mitigating circumstance. It can be seen that due to assault made by accused PW.1 to PW.4 have sustained simple injuries. Accused persons quarrelled with PW.1, PW.3, PW.4 who belongs to Scheduled Caste and humiliated them within public view and caused injuries to PW.1 to PW.4, this is the aggravated circumstance.
Considering the facts of the case and considering the nature of injuries sustained by PW.1 to 4, I am of the opinion that the accused shall be punished with sentence of imprisonment and fine. Considering the facts and circumstances of the case, I pass the following:
ORDER The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 143 r/w 149 of IPC.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 323 r/w 149 of IPC and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for six months for the offence punishable u/s 324 r/w 149 of IPC and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 504 r/w 149 of IPC.
The convicts/accused No.1 to 5 are sentenced to undergo simple imprisonment for six months for the offence 68 Spl.C.No. 144/2013 punishable u/s 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act and shall pay fine of Rs.2000/- each in default to pay fine he shall further undergo simple imprisonment for one month.
The substantive sentence shall run concurrently. The office is directed to issue intimation to the Social Welfare Department to award compensation to PW.1, PW.3 and PW.4 under Schedule of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act.
Office is directed to furnish the copy of the judgment to the convicts as required u/s 363(1) of Cr.P.C.
LXX A.C.C & S.J. & Spl.J, Bengaluru.
The learned counsel for the accused/convict filed application u/s 389(3) of Cr.P.C., praying to suspend sentence till appeal period.
I heard on the side of the learned counsel for the accused/convicts and learned Special Public Prosecutor.
As the accused intends to prefer appeal against the judgment, opportunity to be given to the accused. Hence, the application filed u/s 389(3) of Cr.P.C., is allowed and it is ordered to suspend the sentence of imprisonment till appeal period subject to the condition that
1) The accused/ convicts shall execute personal bond for Rs.1,00,000/- each and shall furnish one surety for likesum to the satisfaction of this court.69 Spl.C.No. 144/2013
2) They shall appear before the court to received the sentence whenever directed to do so.
3) They shall deposit fine amount.
4) They shall not involve in any other criminal cases.
The counsel for accused prays time to furnish surety.
Time granted. Call for furnishing surety and to deposit fine on 8.1.2020.
LXX A.C.C & S.J. & Spl.J, Bengaluru.
70 Spl.C.No. 144/2013Judgment pronounced in the open court vide separate judgment.
OR DE R
Exercising jurisdiction
conferred upon me under Section 235(1) of Cr.P.C., the accused No.1 to 5 have not guilty of the offences punishable under Sec.
326, 506 r/w 149 of I.P.C. and accordingly they are acquitted of the said offences.
Exercising jurisdiction conferred upon me u/s 235(2) of Cr.P.C. I hereby find accused No.1 to 4 guilty of the offences punishable u/s 143, 323, 324, 504 r/w 149 of I.P.C., and u/s 3(1)(x) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act.
The properties M.O.1 and 2 being worthless are ordered to be destroyed after completion of the appeal period.
The case posted for hearing on quantum of sentence to be imposed on the accused.
LXX A.C.C & S.J. & Spl.J, Bengaluru.