Karnataka High Court
Nataraja vs State Of Karnataka on 22 September, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22nd DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL NO.2260/2005(C)
BETWEEN:
1. Nataraja,
Aged about 34 years,
2. Shekhara
Aged about 38 years,
Appellants 1 and 2 are the sons of
A.C.Channegowda,
Vokkaligaru by caste and
Residents of T.Ankanahalli village,
Halekote hobli, Holenarasipur taluk,
Hassan district. ...APPELLANTS
(By Sri.Narasimhan, Adv. Indus Law, Adv.)
AND:
State of Karnataka,
By Holenarasipura town police station,
Represented by the State Public Prosecutor,
High Court of Karnataka,
Bangalore. ...RESPONDENT
(By Sri.K.Rajesh Rai, HCGP)
This Crl.A. is filed u/S 374(2) of Cr.P.C. r/w
Section 386(b) against the judgment dated 7.11.2005
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passed by the Addl.S.J. and Spl.Judge, Hassan, in
Spl.C.No.58/2002, convicting the appellants-accused
for the offences punishable under Sections 3 (1) (x) of
the SC/ST (PoA) Act, 1989 and under Sections 324 and
325 r/w Sec.34 of IPC & etc.,
This Crl.A. coming on for final hearing this day,
the Court delivered the following:
JUDGMENT
This appeal by the convicted accused Nos. 1 and 2 is directed against the judgment of conviction and order of sentence dated 07.11.2005 passed by the Addl.Sessions Judge and Spl.Judge under SC/ST (PoA) Act, 1989 ('Special Act' for short), at Hassan in Spl.C.No.58/2002 convicting them for the offence punishable under Section 3(1)(x) of Special Act and also under Sections 324 and 325 r/w 34 of IPC and sentencing them to undergo imprisonment for a maximum period of two years and also to pay fine.
2. The case of the prosecution in brief was that, PW-1 Rangaiah and his brother PW-2 Biliyaiah are the -3- members of scheduled caste and they are residents of Ankanahalli village in Halekote hobli, Holenarasipura taluk; that the accused belonged to upper caste; that at about 5.30 p.m., on 19.07.2001 when PW-1 was going in front of the house of one Nanjaiah in the village, accused persons came there, abused him in filthy language touching his caste as 'Holeya nanna magane' and there by insulted him with intent to humiliate him in a place within public view and thereafter, assaulted him with reaper and at that time, when PW-2 came to the rescue of PW-1, accused abused him also touching his caste and assaulted him; that as a result of the assault, both PWs 1 and 2 sustained injuries. PW-5 Beluregowda, PW-8 Javaraiah and another Channegowda came there, intervened and pacified both sides. Thereafter, PWs 1 and 2 were taken to the hospital where they were treated and intimation was sent to the jurisdictional police, who on receipt of the intimation came to the hospital at about 9 p.m. and recorded the statement of PW-1 about the incident as per Ex.P1 and on the basis of Ex.P1, case in -4- Cr.No.152/01 came to be registered in Holenarasipura town police station for the offence punishable under Section 324 r/w 34 of IPC and under Section 3(1)(x) of the Special Act.
3. During investigation, the I.O. visited the scene of occurrence and drew up spot mahazar as per Ex.P2, recorded the statements of the witnesses, collected the wound certificate pertaining to PWs 1 and 2 and on completion of investigation, charge sheet was filed for the offences punishable under Sections 324 and 325 r/w 34 of IPC and under Section 3 (1) (x) of the Special Act.
4. Accused persons on their appearance before the trial court, pleaded not guilty for the charges levelled against them for the aforesaid offences and claimed to be tried. In order to bring home the guilt of the accused for the charges levelled against them, the prosecution examined PWs 1 to 8 and relied on the documentary evidence Exs.P1 to P9. Accused denied all the incriminating circumstances appearing against them in -5- the evidence of the prosecution witnesses. Accused did not choose to lead any defence evidence. The defence of the accused, as could be seen from the tenor of cross- examination of the material witnesses, was that there was certain differences between them on the one hand and one Soppinahalli Aiyanna and between them, there was litigation in respect of certain lands and at the instance of the said Aiyanna, a false complaint has been filed through PW-1.
5. After hearing both sides and on assessment of oral and documentary evidence, the learned Spl.Judge, by the judgment under appeal held that the prosecution has proved beyond reasonable doubt the guilt of the accused persons for the aforesaid offences, consequently, both the accused persons were convicted for the aforesaid offences and they were sentenced to undergo imprisonment and also to pay fine as noticed supra. Aggrieved by the said judgment of conviction and order of sentence, accused are in appeal before this Court.
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6. I have heard Sri.Narasimhan, learned counsel for the appellants and Sri.Rajesh Rai, learned HCGP for the respondent-State and perused the records secured from the trial court.
7. Sri.Narasimhan, learned counsel for the appellants contended that the judgment under appeal is highly perverse and illegal, in as much as, the learned Special Judge has failed to take into consideration the various circumstances brought out in the cross- examination of the material witnesses which have rendered their testimony highly unreliable as such their evidence could not be the basis to record finding of guilt against the accused persons. He further contended that the evidence of PWs 1 and 2 is highly inconsistent and discrepant, as such, utmost confidence could not have been reposed on their testimony. According to the learned counsel, the evidence of PWs 1 and 2 did not establish the ingredients of the charge for the offence under Section 3(1)(x) of the Special Act as there was no circumstances to indicate that the alleged abuses were -7- with an intention to humiliate PWs 1 and 2 in a place within the public view. He further contended that admittedly, PW-2 is aged about 52 years, therefore, having regard to his advanced age, the possibility of he having either lost the tooth earlier or one of the tooth getting loosened on account of the natural wear and tear cannot be ruled out and therefore, merely on the basis of the evidence of PW-4 Dr.Girish, it could not have been held that accused No.2 by fisting PW-2 on his mouth has caused grievous hurt punishable under Section 325 of IPC.
8. It is also his contention that the weapon said to have been used for assault by accused No.1 was stated to be a 'reaper' and therefore, the said weapon cannot be termed as a 'dangerous weapon' which is likely to cause death if used as required under Section 324 of IPC, as such, the alleged act of assault by accused No.1 would not attract the offence punishable under Section 324 of IPC. He also contended that the prosecution has not brought out any circumstance from which it can be -8- inferred that the alleged act of assault committed by the accused was in furtherance of a common intention, therefore, the provisions of Section 34 of IPC are not attracted, as such, the two accused persons could not have been convicted with the aid of Section 34 of IPC. With these contentions, learned counsel sought for allowing the appeal and setting aside the judgment of conviction.
9. On the other hand, learned HCGP sought to justify the judgment under appeal contending that the judgment does not suffer from any perversity or illegality warranting interference by this Court as the learned Special Judge on proper appreciation of oral as well as documentary evidence has recorded findings which are sound and reasonable, regard being had to the evidence on record. He further contended that the evidence of PWs 1 and 2 being consistent and cogent is corroborated by the evidence of independent witness namely PW-8 whose name finds place in the complaint lodged at the earliest point of time, therefore, the -9- learned Special Judge has not committed any error in placing reliance on the testimony of PWs 1, 2 and 8. It is his further submission that the evidence of PWs 1, 2 and 8 with regard to the incident of assault on PWs 1 and 2 is corroborated by the medical evidence as to the site and nature of the injuries. He contended that the evidence led by the prosecution read as a whole would clearly indicate that the acts of assault committed by both the accused was in furtherance of common intention shared by them, therefore, the trial court has rightly convicted the accused persons with the aid of Section 34 of IPC and no error of law has been committed by the court below in this regard.
10. He further contended that from the evidence on record, it is clearly established that accused No.2 fisted on the mouth of PW-2 which resulted in complete loosening of the tooth which was later extracted by the dentist and fracture or loosening of a tooth having been described as a grievous hurt under circumstance seventhly of Section 320 of IPC, learned Special Judge is
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justified in convicting the appellants for the offence punishable under Section 325 with the aid of Section 34 of IPC. He further contended that 'reaper' being a solid wood similar to a club has been rightly accepted by the trial court as a dangerous weapon which if used likely to cause death and therefore, the act of assault by accused No.1 on PWs 1 and 2 with a 'reaper' attracts the offence under Section 324 of IPC. It is his further submission that the evidence of PWs 1, 2 and 8 clearly establishes that the accused abused PWs 1 and 2 in filthy language touching their caste in a public place in the presence of several villagers and the circumstance in which the accused committed the said act would clearly indicate that the accused abused PWs 1 and 2 touching their caste in order to insult them with intent to humiliate them in the public view. Therefore, the court below is justified in convicting the accused for the offence under Section 3(1)(x) of the Special Act. Therefore, he sought for dismissal of the appeal and confirmation of the judgment of conviction recorded by the trial court.
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11. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arises for consideration are;
(i) Whether the judgment under appeal suffers from perversity or illegality warranting interference by this Court?
(ii) Learned Special Judge is justified in holding the appellants guilty for the aforesaid offences, if so, whether the sentence ordered warrant modification?
12. I have bestowed my anxious considerations to the submissions made on both sides. In the light of the submissions made on both sides, I have perused the evidence on record carefully and also read the reasoning adopted by the learned Special Judge to record the conviction. Having done so, I am of the considered opinion that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court.
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13. As noticed supra, the incident said to have occurred at about 5.30 p.m. on 19.07.2001 and the report about the said incident said to have been lodged at about 9 - 9.45 p.m. on the same day in the form of the statement of PW-1 recorded by the jurisdictional police in the hospital at Holenarasipura and the case came to be registered at about 10 p.m. As could be seen from the endorsement found on the F.I.R Ex.P9, the FIR along with the complaint Ex.P1 reached the jurisdictional court at 11.30 p.m. on 19.07.2001. Thus, there was no delay either in lodging the report or the FIR reaching the jurisdictional court. The report as to the incident is shown to have been lodged at the earliest point of time without loss of time. The defence has not been able to bring out any circumstance to indicate embellishment. In order to show that complaint was lodged at the instance of one Aiyanna as sought to be suggested to PWs 1 and 2 in the cross-examination, except the suggestion put to PWs 1 and 2 in the cross- examination about the ill will between the accused on the one part and the said Aiyanna on the other and the
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pendency of litigation between them, accused have not produced any evidence to substantiate the said suggestion. Mere suggestions in the cross-examination is not substantive evidence. The witnesses have denied the said suggestions. If there were really litigation pending between the accused and the said Aiyanna, there was no difficulty for the accused to have produced documents relating to the said litigation. No such document is produced and no circumstance also brought out to indicate that PWs 1 and 2 acted according to the dictates of the said Aiyanna. Therefore, there is absolutely no circumstance to indicate that the complaint Ex.P1 came to be filed as per the dictates of the said Aiyanna or at the instance of the said Aiyanna.
14. PWs 1 and 2 in their evidence have stated that they were assaulted by accused No.1 with a reaper and accused No.2 fisted on the mouth of PW-2, which resulted in loosening of his tooth. This part of the evidence of PWs 1 and 2 is corroborated by the evidence of PW-4 Dr.Girish. Of course, PW-4 is a dentist and not
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a medical doctor. However, he has spoken about the injury to the tooth suffered by PW-2. According to PW- 4, there was swelling on the lower lip and loosening of tooth of PW-2 and loosened tooth was extracted. The circumstance Seventhly in Section 320 of IPC describes fracture or dislocation of a bone or tooth as grievous hurt. Thus, the evidence on record clearly establishes that PW-2 had sustained grievous hurt while PW-1 sustained simple hurt. The evidence on record clearly establishes that accused No.1 used a weapon called 'reaper' to assault PWs 1 and 2. No doubt, to attract the offence under Section 324 of IPC, the weapon used should be of such a nature, which if used is likely to cause death. The weapon 'reaper' being a solid wood with edges would certainly cause death if used. Therefore, the trial court is justified in holding that it is a dangerous weapon likely to cause death and since the accused No.1, by using the said weapon has caused hurt to PWs 1 and 2, is guilty of an offence under Section 324 of IPC. Of course, reading of the evidence on record as a whole, as rightly contended by learned
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counsel for the appellants, does not lead to interference that the act of assault committed by accused persons was in furtherance of any common intention shared by them.
15. As noticed supra, accused No.1 was armed with a 'reaper' while accused No.2 had no weapon. If they really shared common intention, even accused No.2 would have been armed with some weapon. Therefore, in my opinion, learned Special Judge is not justified in holding that the act of assault by accused persons was in furtherance of common intention. Hence, provisions of Section 34 have no application to the facts of the case. Therefore, both the accused are liable to be convicted for their individual acts. In this view of the matter, accused No.1 is guilty for the offence under Section 324 of IPC, and accused No.2 is guilty of the offence punishable under Section 325 of IPC.
16. To attract an offence under Section 3(1)(x) of the Special Act, the abuses hurled should be of such nature likely to insult a member of SC/ST and such
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insult should be with an intent to humiliate or to intimidate him in a place within the public view. The incident as spoken to by PWs 1, 2 and 8 clearly indicate that it had occurred near the house of Nanjaiah in the village. Therefore, it is a public place. The reading of the contents of Ex.P1 and the oral evidence clearly establishes that several persons had gathered at the time of incident. In fact, it is elicited in the cross- examination of PWs 1 and 2 that about 50-60 persons had gathered there. PWs 1, 2 and 8 have spoken about the abuses hurled by accused Nos. 1 and 2. It is not the defence of the accused that they had no knowledge about the caste to which PWs 1 and 2 belonged. They are all residents of the same village. Therefore, it is reasonable to hold that the accused had knowledge that PWs 1 and 2 are the members of scheduled caste. The nature of the abuses hurled as spoken to by PWs 1 and 2 would indicate that PWs 1 and 2 were abused touching their caste in the presence of several villagers. This would have certainly caused insult resulting in humiliation to PWs 1 and 2.
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17. No doubt, as pointed out by learned counsel for the appellants, there are certain discrepancies in the evidence of PWs 1, 2 and 8, however, they are all minor in nature and such minor discrepancies are bound to occur when a fact is sought to be proved through human agency that too after long lapse of several years after the incident. Therefore, those minor contradictions or discrepancies or inconsistencies have not in any way affected the substratum of their evidence. Hence, the trial court is justified in placing reliance on the evidence of PWs 1, 2 and 8 with regard to incident of abuse and assault by the accused on PWs 1 and 2.
18. The Apex court in the case of Arumugam Servai vs. State of Tamil Nade in Crl.A.No.958/2011 decided on 19.04.2011, has held that even calling a person with his caste name, if used with intent to insult a member of SC or ST is an offence under Section 3(1)(x) of the Special Act'. Their Lordships have held that though such word denotes a specific caste, but they are
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also the words used in a derogatory sense to insult someone and therefore, their Lordships have held that even calling a person in their caste name if used with intent to insult a member of scheduled caste or scheduled tribe is an offence under Section 3(1)(x) of the Special Act.
19. In the case on hand, the evidence has established that accused Nos. 1 and 2 abused PWs 1 and 2 touching their caste with 'Holeya' in the presence of several villagers. Therefore, such abuse was nothing but with an intention to insult and humiliate PWs 1 and
2. Therefore, accused Nos.1 and 2 have been rightly held guilty of the offence under Section 3(1)(x) of the Special Act. I find no perversity or illegality in the findings recorded by the learned Special Judge. In this view of the matter, the judgment of conviction recorded by the trial court does not warrant interference except to the extent of application of Section 34 of IPC.
20. The offence under Section 3(1)(x) of the Special Act is punishable with imprisonment for a
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minimum period of six months and with fine. The offence under Section 324 is punishable with imprisonment which may extend to 3 years or with fine or with both, while offence under Section 325 of IPC is punishable for a term which may extend to 7 years and also fine.
21. Taking into consideration the facts and circumstances of the case and also the factor that both the victims and the accused are residents of the same village, in order to maintain harmony in the village, I am of the considered opinion, interest of justice would be met if the accused persons are sentenced to undergo imprisonment for minimum period of six months for the aforesaid offences and to pay substantive fine, so that the victim could be compensated in terms of Section 357 of Cr.P.C. Accused persons appears to be men of means and capable of paying substantial fine.
22. In view of the above, appeal is allowed in part. In modification of the judgment of conviction passed by the court:-
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(i) Accused Nos. 1 and 2 are convicted for the offence punishable under Section 3(1)(x) of the Special Act. In addition, accused No.1 is sentenced for the offence under Section 324 of IPC while, accused No.2 is sentenced for the offence under Section 325 of IPC.
(ii) Accused are sentenced to undergo R.I.
for six months on each of these counts
and the substantive sentence of
imprisonment shall run concurrently.
(iii) Accused Nos. 1 and 2 are further sentenced to pay fine of Rs.10,000/-
each for the offence under Section 3(1)(x) of the Special Act, in default, to undergo S.I. for three months.
(iv) Accused No.1 is further sentenced to pay fine of Rs.5,000/- for the offence punishable under Section 324 of IPC and in default, to undergo S.I. for 2 months.
(v) Accused No.2 is further sentenced to pay fine of Rs.10,000/- for the offence under Section 325 of IPC and in default, to undergo S.I. for 3 months.
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(vi) On realisation of the fine amount, a sum of Rs.15,000/- shall be paid to to each of PWs 1 and 2 as compensation.
(vii) The bail and surety bonds of the accused are ordered to be cancelled.
(viii) Appellants-accused are directed to surrender before the trial court forthwith and upon such surrender, the trial court shall commit them to prison to serve the sentence.
(ix) In case of failure to surrender, the trial court shall take necessary steps to secure the presence of the accused and commit them to prison.
SD/-
JUDGE Srl.