Karnataka High Court
M Karigowda Hc-166 vs The State Of Karnataka on 8 July, 2013
Author: K.Sreedhar Rao
Bench: K.Sreedhar Rao
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 08TH DAY OF JULY, 2013
:PRESENT:
THE HON'BLE MR.JUSTICE K.SREEDHAR RAO
AND
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.903/2009
C/W
CRL.A. NOS.909/2009, CRL.A.969/2009,
CRL.A.274/2010 AND CRL.A.275/2010
CRIMINAL APPEAL NO.903/2009
BETWEEN:
1. M KARIGOWDA, HC-166
JAYAPURA POLICE STATION
R/A GOWRISHANKARANAGARA
NANJEGOWDA ROAD, MYSORE
2. LAKSHMANA, PC-1849
JAYAPURA POLICE STATION
R/A GOVT. HOSPITAL ROAD,
MYSORE ... APPELLANTS
(BY SRI.ARUN SHYAM - ADV. FOR M/S DHARMASHREE
ASSOCIATES)
2
AND:
THE STATE OF KARNATAKA
THROUGH JAYAPURA POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.N.S.SAMPANGIRAMAIAH - HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED
13/16.11.2009 PASSED BY THE VI ADDL. DISTRICT AND
SESSIONS JUDGE, AT MYSORE IN SPL. CASE NO.128/2004
- CONVICTING THE APPELLANTS/ACCUSED NO.4 & 5 FOR
THE OFFENCE P/U/S.3(I)(VIII) OF SC & ST ACT, 344 & 348
R/W 34 OF IPC AND ETC.,.
IN CRIMINAL APPEAL NO.909/2009
BETWEEN:
1. SRI SRINIVASACHARI
H.C.392, JAYAPURA POLICE STATION
RESIDING AT NO.1144, II PHASE
GAYATHRINAGARA, MYSORE
2. SRI.MAHESHA
P.C.1817, SOUTH POLICE STATION
RESIDING AT 6TH CROSS
SUNNADAKERI
K.R.MOHALLA, MYSORE ... APPELLANTS
(BY SRI. PRAVEEN KUMAR RAIKOTE - ADV.,)
3
AND:
THE STATE OF KARNATAKA
BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE ... RESPONDENT
(BY SRI.N.S.SAMPANGIRAMAIAH - HCGP)
THIS CRL.A. IS FILED U/S.374 CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED:
13/16.11.2009 PASSED BY THE VI ADDL. DIST., AND
SESSIONS JUDGE, MYSORE IN SPL. CASE NO. 128/2004 -
CONVICTING THE APPELLANTS/ACCUSED NO.2 & 3 FOR
THE OFFENCES P/U/S 3(I) (VIII) OF SC & ST ACT, AND 344,
348 R/W 34 OF IPC AND ETC.,.
IN CRIMINAL APPEAL NO.969/2009
BETWEEN:
H.JAYANNA
S/O LATE H.T.HANUMAIAH
AGED 52 YEARS
NO. 473, CHIKKABIDARAKALLU
BANGALORE NORTH TALUK
BANGALORE - 560 073 ... APPELLANT
(BY SRI.T.I.ABDULLA - ADV.,)
AND
STATE OF KARNATAKA
BY JAYAPURA POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001 ... RESPONDENT
4
(BY SRI.N.S.SAMPANGIRAMAIAH - HCGP)
THIS CRL.A IS FILED U/S 374(2) CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT AND CONVICTION PASSED IN
SPECIAL CASE NO.128/2004 DATED
13.11.2009/16.11.2009 PASSED BY THE VI-ADDL. DISTRICT
AND SESSIONS JUDGE, MYSORE - CONVICTING THE
APPELLANT / ACCUSED NO.1 FOR THE OFFENCE P/U/S
3(1)(VIII) OF SC & ST ACT AND ALSO CONVICTED FOR THE
OFFENCES P/U/S 344,348 R/W 34 OF IPC AND ETC.,.
IN CRIMINAL APPEAL NO.274/2010
BETWEEN:
STATE OF KARNATAKA
BY JAYAPURA POLICE STATION ... APPELLANT
(BY SRI.N.S.SAMPANGIRAMAIAH - HCGP)
AND:
1. H.JAYANNA
PSI, JAYAPURA POLICE STATION
PRESENTLY RESIDING AT NO.216/1
5TH MAIN ROAD, 5TH CROSS
CHAMARAJPET, BANGALORE
2. SREENIVASACHARI
HC-392, JAYAPURA POLICE STATION
RESIDING AT NO.1144, II PHASE
GAYATHRINAGARA, MYSORE
3. MAHESHA
PC-1817, SOUTH POLICE STATION
RESIDING AT 6TH CROSS, SUNNADAKERE
K.R.MOHALLA, MYSORE
5
4. M KARIGOWDA
HC-166, JAYAPURA POLICE STATION
RESIDING AT GOWRISHANKARANAGARA
NANJEGOWDA ROAD, MYSORE
5. LAKSHMANA
PC-1849, JAYAPURA POLICE STATION
RESIDING AT
GOVERNMENT HOSPITAL ROAD
YELWALA, MYSORE ... RESPONDENTS
(BY SRI.T.I.ABDULLA - ADV. FOR HEGDE ASSTS. FOR R1,
SRI. PRAVEEN KUMAR RAIKOTE - ADV. FOR R2 & R3,
SRI.ARUN SHYAM - ADV. FOR M/S DHARMASHREE
ASSOCIATES FOR R4 & R5)
THIS CRL.A. IS FILED U/S.377 CR.P.C, PRAYING TO
MODIFY THE SENTENCE IMPOSED ON 13/16.11.09 PASSED
BY THE VI ADDL. DIST. & S.J. MYSORE IN SPL. CASE
NO.128/04 AND IMPOSE APPROPRIATE SENTENCE
AGAINST THE RESPONDENTS/ACCUSED-CONVICTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S
3(I)(VIII) OF SC/ST ACT AND 344, 348 R/W 34 OF IPC AND
ETC.,.
IN CRIMINAL APPEAL NO.275/2010
BETWEEN:
STATE OF KARNATAKA
BY JAYAPURA POLICE STATION ... APPELLANT
(BY SRI.N.S.SAMPANGIRAMAIAH - HCGP)
AND:
1. H JAYANNA
PSI, JAYAPURA POLICE STATION
6
PRESENTLY RESIDING AT NO.216/1
5TH MAIN ROAD, 5TH CROSS
CHAMARAJPET, BANGALORE
2. SREENIVASACHARI
HC-392, JAYAPURA POLICE STATION
RESIDING AT NO.1144, II PHASE
GAYATHRINAGARA, MYSORE
3. MAHESHA
PC-1817, SOUTH POLICE STATION
RESIDING AT 6TH CROSS, SUNNADAKERE
K.R.MOHALLA, MYSORE
4. M KARIGOWDA
HC-166, JAYAPURA POLICE STATION
RESIDING AT GOWRISHANKARANAGARA
NANJEGOWDA ROAD, MYSORE
5. LAKSHMANA
PC-1849, JAYAPURA POLICE STATION
RESIDING AT GOVERNMENT HOSPITAL ROAD
YELWALA, MYSORE
6. MANJU P, PC-1580
YELWALA POLICE STATION
7. MAYAGAIAH, PC-1474
BILLEKERE POLICE STATION ... RESPONDENTS
(BY SRI.T.I.ABDULLA - ADV. FOR HEGDE ASSTS. FOR R1,
SRI. PRAVEEN KUMAR RAIKOTE - ADV. FOR R2 & R3,
SRI.ARUN SHYAM - ADV. FOR M/S DHARMASHREE
ASSOCIATES FOR R4 & R5,
SRI.GIRIDHAR H- ADV. FOR SRI.BOPANNA &
SRI.GIRI - ADVS. FOR R6 & R7))
THIS CRL.A. IS FILED U/S.378(1) & (3) CR.P.C,
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL
7
DT.13/16.11.09 PASSED BY THE VI ADDL. DIST. & S.J.
MYSORE IN SPL. CASE NO.128/04 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 326
R/W 34 OF IPC AND ETC.,.
THESE CRIMINAL APPEALS COMING ON FOR
HEARING THIS DAY, B.V.PINTO.J, DELIVERED THE
FOLLOWING
JUDGMENT
These five appeals are filed challenging the Judgment dated 13.11.2009 passed by the Sixth Additional District and Sessions Judge, Mysore in Special Case No.128/2004 convicting the accused for the offences under Section 344 and 348 r/w Section 34 of IPC and for the offence under Section 3(i)(viii) of the SC & ST (POA) Act and sentencing them to undergo simple imprisonment for one year for the offence under Section 3(i)(viii) of the SC & ST (POA) Act and to pay fine of `.5,000/- each, in default to undergo simple imprisonment for three months and further sentencing them to undergo simple imprisonment for one year and to pay fine of `.2,000/- each, in default to undergo 8 simple imprisonment for one month each, in respect of the offences under Section 344 r/w Section 34 of IPC and 348 r/w Section 34 of IPC respectively with a direction that the sentence of imprisonment shall run concurrently.
2. Criminal Appeal No.903/2009 is filed by accused Nos.4 and 5, Criminal Appeal No.909/2009 is filed by accused Nos.2 and 3, whereas Criminal Appeal No.969/2007 is filed by accused No.1 challenging the order of conviction, Criminal Appeal No.274/2010 is filed by State seeking enhancement of sentence imposed on the accused Nos.1 to 5, whereas Criminal Appeal No.275/2010 is filed by the State challenging the order of acquittal of accused No.7 and 8 of all the offences. Since all these matters are arising out of single Judgment, all are taken up together for the purpose of disposal.
3. It is the case of the prosecution that, in the night of 14.08.1999 at about 3.00 a.m., accused Nos.1 to 9 5 being police officers with common intention have forcibly taken away one Muniswamy from his house situated at toll gate on Mysore-Bangalore road in front of BSK Memorial Choultry in a Jeep and thereafter, wrongfully confined him at Jayapura police Station between 14.08.1999 and 01.11.1999. It is further case of the prosecution that, son of Muniswamy by name Subramanya was apprehended on 15.08.1999 from Church at Moodubelle in Udupi Taluk and he too was confined in the said police station from 15.08.1999 to 28.10.1999. It is further alleged that, both Muniswamy and Subramanya being members of schedule caste and schedule tribe community, accused not being the members of the said caste, all the accused along with accused Nos.6 to 8 who are also police officials of Yelwala police station illegally confined them from 14.08.1999 to 01.11.1999, thereby they are alleged to have committed offences under Section 344, 348, 326, 211 r/w Section 10 34 of IPC and also under Section 3(i)(viii) of the SC & ST (POA) Act.
4. The prosecution in order to prove the case has examined in all 25 witnesses and got marked Exs.P1 to 35. The defence of the accused was one of total denial. However, they have produced Ex.D1, being certified copy of the Judgment in CC 728/2002. The learned Sessions Judge after considering the evidence on record acquitted accused Nos.7 and 8 of all the charges and the case against accused No.6 abated due to his death and convicted accused Nos.1 to 5 as aforestated. It is this order of conviction and sentence which has been challenged by the accused, whereas State has filed an appeal for enhancement of sentence imposed on the accused and had also sought for conviction of all the accused for the offence under Section 326 r/w Section 34 of IPC for which the trial Court has acquitted. 11
5. The prosecution has examined PW.1-Charles Quarders, who is Superintendent of Moodubelle, Church. He has stated that, Subramanya was working in their field in Moodubelle village of Udupi Taluk. He had come to work on 15.07.1999 and was getting salary of `.1,200/- per month. It is stated by him that, on 15.08.1999, when he came in the evening from his friends house, he came to know from the wife of Subramanya that, Subramanya has been taken by the police. PW.1 has not been cross-examined by the defence counsel, since the request of the defence counsel to cross-examine him is turned down by the learned Sessions Judge and his evidence is taken as closed.
6. PW.2-Shivaji Suvarna, has stated that, he was the President of Grama Panchayathi of Moodubelle. On 15.08.1999, he was informed by the people of Subramanya that, Subramanaya had been taken away by some persons. PW.2 has not been cross-examined by 12 the defence counsel, since the request of the defence counsel to cross-examine him is turned down by the learned Sessions Judge and his evidence is taken as closed.
7. PW.3-Lalitha-is the daughter of Muniswamy. She has stated that, on 14.08.1999 at about 3.00 a.m, some persons came to their house at Mysore and searched their entire house and when she asked as to who they are, at that time some papers from the bag of the said persons fell down in their house. When she questioned regarding their authority to search their house, they threatened her. Thereafter, they took her father Muniswamy in the said jeep. Thereafter, she came to know that the persons who came are the police officers and has identified accused Nos.4 and 6 as the persons who came to their house on that day. PW.3 has further stated that, on 15.08.1999 at about 8.00 p.m., she came to know that, two persons had gone to Moodubelle and 13 had taken away their brother Subramanya from his house at Moodubelle in Udupi Taluk. On 16.08.1999, she has seen her brother and her father in the Jayapura police station in Mysore. At that time, accused No.4 was present and when she requested that her brother and father be released, they denied release of her father and brother. Thereafter, she contacted her advocate CW.13 and filed an application for search warrant and JMFC, Mysore issued search warrant. When CW.13 went to the police station, her father and brother were not found in the station. She came to know that both of them had been transferred to some other place. On 18.09.1999, she filed the petition before the Hon'ble High Court of Karnataka and also on 20.09.1999, she wrote a letter to the National Human Rights Commission. On 27.10.1999, one Mandappa summoned her to the police station and on the same day, she saw her brother being produced before the Magistrate and on the same day, he has been remanded to custody to jail by the learned Magistrate 14 and that he was being produced again on 02.11.1999. On 02.11.1999, she got her brother released from the jail by filing an application before the Court. It is further in the evidence that, on seeing her brother, it is observed that he had sustained injuries on his person and he informed her that the police had assaulted him. About 15 days thereafter, police themselves have released her father and sent him home. In the cross-examination it is suggested that she is deposing falsely and accused had not detained arrested her father or brother on 14.08.1999 or on 15.08.1999 and that she is deposing falsely at the instance of police, which suggestion has been denied by her.
8. PW.4-Subramanya is the detenue who has stated that, on 15.08.1999, when he was working in front of his house at Moodubelle village, Udupi Taluk under PW.1, two persons came and took him to Mysore. He has identified accused Nos.1 and 2 as the persons who had 15 come to their house in Moodubelle. He has stated that, accused had taken him to Mysore in KSRTC bus at about 10.00 p.m., and reached Mysore at 6.00 a.m. on the next day and he was taken to Jayapura police station. He had also seen his father in the police station along with 22 to 30 other people. He has further stated that, accused No.4 was also present in the police station who had assaulted him by means of a lati. It is stated to him by the police that, he had committed theft and ran away from Mysore. He has further stated that, during his stay in the police station, he has been assaulted by accused by lati on his feet. He has stated that, accused No.1 assaulted him and accused Nos.2 to 4 held him, while accused No.1 was assaulting him. He has also stated that, accused have assaulted on his chest and other parts of the body. The police have also given current shock to him by holding him. It is stated that, on 29.10.1999, he was produced before the Court and thereafter, he was sent to judicial custody. On 02.11.1999, he was released from jail after 16 securing the Court order for bail. He has stated that, his right hand has been fractured and he has been treated in K.R.Hospital, after he was released from jail. In the cross- examination, it is suggested that, he was charge sheeted by Yelwala police station in CC No.728/2002 before the JMFC, 2nd Court, Mysore. On 10.05.2005, he has been convicted for the said offence which suggestion has been admitted by PW.4. Ex.D1 is the certified copy of the Judgment of conviction given to PW.4 for the offences under Section 457 and 380 of IPC. In the cross- examination, it is elicited that, he is not aware as to the names of the police officers who had taken him away from Moodubelle village. It is suggested to him that, on 29.10.1999, when himself and two others were moving suspiciously at about 4.00 p.m., at Gujjigowdanapura Village, he was apprehended by police. However, PW.4 has denied the said suggestion. He has further admitted that, he was appearing in Tumkur Court for enquiry. He has also admitted that, there are two dacoity cases 17 against him in the year 1998. However, he has denied the suggestion that police had registered three theft cases and one robbery cases against him in the year 1998. However, he has admitted that, he received compensation from the Government to an extent of more than `.1,00,000/- since he belonged to SC community.
9. PW.5-Dr.Kallikote has examined PW.4 on 04.11.1999 and while admitting PW.4, he has given history of assault by Jayapura police Sub-Inspector- Jayanna, Karigowda, Shivanna, Acharya, Lakshman, Mahesh with lati and also giving current shock over his body at 10.30 p.m on 03.11.1999. He has stated that, PW.4-Subramanya has sustained old fracture of 1/3rd right ulna. However, the injuries sustained by him are simple in nature as per Ex.P4-wound certificate issued by PW.5.
10. PW.6-Dr.Latha Mutthanna was the Medical Officer of Central Prison, Mysore. She has stated that, on 18 30.10.1999 and on 01.11.1999, she has examined PW.4 in the prison hospital. It is stated by her that, PW.4 was admitted before her in the hospital with stomach pain. She has issued extract of out patient register taken in the name of PW.4-Subramanya S/o.Muniswamy for having taken treatment in the hospital which is marked as Ex.P2.
11. PW.7-Dharmendra and PW.8-Yogananda have turned hostile to the case of the prosecution and have not supported the case.
12. PW.9-Muniswamy is another detenue and father of PW.4. He has stated that, he was also taken away by police from his house. PW.9 has stated that, on the date of the incident, about 5 police came to his house and searched the entire house and took certain papers written by his son. Thereafter, he was dragged out of his house and was put in the jeep and thereafter, he was taken to Jayapura police station with allegation that he 19 was involved in the theft case. He was also assaulted by police. He has stated before the Court that, accused Nos.1 to 4 have assaulted him and pressurized him to admit theft case. After arrival to the police station, his son Subramanya who was in Moodubelle village was also brought to the police station. Both, himself and his son were assaulted by police. Thereafter, after about ½ month, police have produced them before the Court. Thereafter, he was released by the Court. In the cross- examination, he has stated that, Yelwala police have registered the case against him for theft. However, he has stated that, he is not in a position to identify the police officers who have assaulted him specifically. It is suggested to him that, in order to obtain compensation from the Government, false case has been filed which suggestion has been denied by PW.9.
13. PW.10-Yashoda and PW.11-Jayamma are the daughter and the wife of PW.9-Muniswamy respectively. 20 PW.12-Mallika is the wife of PW.4-Subramanya. All three of them have spoken regarding the fact that both Subramanya-PW.4 and Muniswamy-PW.9 were taken by police from their respective houses.
14. PW.13-Rajesh, PW.14-Nagaraj and PW.15- Maniyamma have turned hostile to the case of the prosecution.
15. PW.16-Mahadevappa is Sub-Inspector of Police of Jayapura police station. He has stated that, he has registered the case in Crime No.103/2001 on 24.09.2001 as per Ex.P11.
16. PW.17-Pranesh Kumar is an Advocate practicing in Mysore. He has stated that, on 17.09.1999, he was appointed as Court Commissioner in Crime No.439/1999 of JMFC, 2nd Court, Mysore and obtained warrant issued in his favour. On the same day, at about 6.30 p.m., he went to Jayapura police station and when 21 he searched for the detenues namely Subramanya and Muniswamy, they were not found in the police station. He has stated that one of his other colleague also came along with him.
17. PW.18- Rajannachari and PW.19- Chamundaiah have turned hostile to the case of the prosecution.
18. PW.20-Basavaraju was the Police Inspector, COD, Bangalore in 2001. On 15.10.2001, he was asked by his superiors to conduct an investigation in respect of the incident and thereafter, he has conducted the investigation in Crime Nos.127/2001 and 164/2001 of Jayapura police station and Yelawala police station respectively. He has made enquiries recorded the statement of witnesses, in particular he has recorded the statements of PW.4-Subramanya and PW.9-Muniswamy. After completion of investigation, he has filed charge sheet against accused for the offences mentioned above. 22 In the cross-examination, it is elicited that, during his enquiry, he has found that, cases were registered against PWs.4 and 9 in the said police station. He also came to know that, in this connection police had arrested them and produced them before the Court immediately.
19. PW.21-Krishna Murthy is an under Secretary to Government of Karnataka. He has stated that, on 24.03.2003, Inspector General of Police, COD, Bangalore had sought permission to file charge sheet against the police officers who are accused in this case for the offences under Section 344, 348, 323, 211 r/w Section 34 of IPC and Section 3(i)(viii) of SC & ST (POA) Act and that he has stated that he has given sanction under Section 170 of the Karnataka Police Act to prosecute the said police officials on 27.01.2004.
20. PW.22-Yaathanoor is Addl.SP, COD, Bangalore, who has also conducted part of investigation. 23
21. PW.23-Jerald is another Advocate who had accompanied PW.17 to the Jayapura police Station along with search warrant.
22. PW.24-Babu is the photographer who has taken photographs of PW.4.
23. PW.25- Puttamadappa is the Deputy Superintendent of COD, who conducted investigation in this case in connection with letters written by National Human Rights Commission and also in connection with letters written by the detenue's relative through Hon'ble High Court of Karnataka which are marked as Exs.P33, 34 and 35. He has also stated that, he has come to the conclusion on investigation that accused had detained PWs.4 and 9 in the police station between 14.08.1999 to 01.11.1999 and accordingly charge sheet has been filed against them.
24
24. It is from the above evidence of the prosecution witnesses, the learned Special Judge has convicted the accused for the offences under Section 344, 348 r/w Section 34 of IPC and Sections 3(i)(viii) of SC & ST (POA) Act, while acquitting the accused of the offence under Section 326 r/w Section 34 of IPC.
25. Heard Sri.Arun Shyam, learned Counsel for the accused Nos.4 and 5, Sri.Praveen Kumar Raikote, learned Counsel for accused Nos.2 and 3, Sri.T.I.Abdulla, learned Counsel for accused No.1 and Sri.Sampangiramaiah, learned HCGP for State.
26. It is seen that the trial Court has convicted accused Nos.1 to 5, whereas accused No.6 had died and therefore, case against him is abated. Accused Nos.7 and 8 are acquitted of all the charges leveled against them. Accused No.1 to 5 are in appeal. The State has filed two appeals one against the acquittal of the offence under 25 Section 326 r/w Section 34 of IPC and another for enhancement of sentence.
27. From the document-Ex.P18 which is a Station House Diary of Jayapur police Station and on perusal of the Ex.P18, it is seen that, PWs.4 and 9 were arrested on 29.10.1999 by virtue of search warrant issued by the police in Crime No.29/1998 and other offences of Yelawala police station and thereafter, they were secured and produced before the Court. The allegations that, on 14.08.1999 or on 15.08.1999, PWs.4 and 9 were apprehended by the police is not supported by Ex.P18- which is a Station House Diary of Yelawala police Station from 14.08.1999 to 29.10.1999. It is further seen that, the Investigating Officer had admitted in the cross- examination that, there is no record to show that PWs.4 and 9 were apprehended on 14.08.1999 or on 15.08.1999 as stated by them in the Court. It is further seen that, PWs.4 and 9 have admitted in their cross- 26 examination that, they have been given compensation by the Government which is more than `.1,00,000/- for having faced the criminal case against them.
28. Under the circumstances and in view of the fact that, there is no documentary evidence to show that PWs.4 and 9 were apprehended and were detained in the police station, the learned Special Judge could not have convicted them either for the offence under Section 344 of IPC or for the offence under Section 348 of IPC. Hence, the appellants are entitled for an order of acquittal of the said offences.
29. So far as the offence under Section 3(1)(viii) of (P.O.A.) Act the SC/ST (P.O.A.)Act is concerned, there is no material to show that accused were aware that PWs.4 and 9 belong to SC/ST community nor from the materials it is made out to suggest that, PWs.4 and 9 were belonging to the depressed class. It is also not the case of PW4 and 9 that only because they belonged to the 27 said caste case was registered against them and they were arrested. In that view of the matter, the ingredients of Section 3(i)(viii) of the SC/ST (POA) Act is not made out, in this case. It is to be seen that, PWs.4 and 9 were involved in several theft and dacoity cases and that it cannot be said that accused had acted malafide. It is seen that, accused have acted in accordance with law insofar as having conducted the investigation and therefore, they cannot be convicted for the offence under Section 3(i)(viii) of SC/ST (POA) Act. Hence, they are also entitled for an order of acquittal of the said offence.
30. Insofar as the appeal filed by the State for conviction is concerned, in view of what has been held by us as above, there is no merit in the appeal filed by the State for convicting the accused for the offence under Section 326 r/w Section 34 of IPC, so also the appeal for enhancement of sentence filed by the State does not survive for consideration in view of the above order. 28 Hence, the appeals filed by the State are liable to be dismissed and accordingly, the following order is passed:
ORDER Criminal Appeals Nos.903/2009, 909/2009 and 969/2009 are allowed. The order of conviction passed against accused Nos.1 to 5 is hereby set aside and they are acquitted of all the charges leveled against them. Bail bond executed by them shall be discharged. Fine amount if any, deposited shall be refunded to them.
Criminal Appeal Nos.274/2010 and 275/2010 are hereby dismissed.
SD/-
JUDGE SD/-
JUDGE KSR