Bangalore District Court
The State By vs K.Vijay Kumar on 18 January, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 18 th day of January, 2020
:PRESENT:
Sri. MOHAN PRABHU, M.A., LL.M.
LXX Addl. City Civil & Sessions
& Special Judge, Bengaluru.
Spl.C.No. 497/2014
COMPLAINANT: The State by
Yalahanka Police Station,
BENGALURU.
(By Special Public Prosecutor)
V/s
ACCUSED: 1. K.Vijay Kumar,
S/o Krishnappa,
Aged about 33 years,
R/at: No.386, Sonnappanahalli Village,
Jala Hobli, Bengaluru North Taluk.
Bengaluru.
2. Shiva Shankar,
S/o Ramanna,
Aged about 31 years,
R/at: Sonnappanahalli Village,
Jala Hobli, Bengaluru North Taluk.
Bengaluru.
3. Srinivas,
S/o Venkatappa,
Aged about 33 years,
R/at: Vidyanagar Cross,
Bettahalasur Cross, Jala Hobli,
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Bengaluru North Taluk,
Bengaluru.
4. Santhosh Kumar,
S/o D.V.Nagaiah,
Aged about 28 years,
R/at: Sonnappanahalli Village,
Jala Hobli, Bengaluru North Taluk.
Bengaluru.
5. N.Krishnappa,
S/o Late Narayanappa,
Aged about 67 years,
R/at: No.386, Sonnappanahalli Village,
Bettahalasur Cross, Jala Hobli,
Bengaluru North Taluk.
Bengaluru.
6. Venugopal,
S/o Krishnappa,
Aged about 31 years,
R/at: No.386, Sonnappanahalli Village,
Bettahalasur Cross, Jala Hobli,
Bengaluru North Taluk.
Bengaluru.
(By Mariyappa M.S., Advocate)
1. Date of commission of offence: 01.08.2014
2. Date of report of occurrence : 01.08.2014
3. Date of commencement of : 29.11.2018
recording of evidence
4. Date of closing of evidence : 29.11.2019
5. Name of the Complainant : P.Devaraju
6. Offences Complained of : Secs.143, 144, 147, 148,
504, 323, 324, 354, 427 of
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IPC and R/w 149 of IPC and
u/s. 3(1)(10)(11) of S.C./S.T.
(P.A.) Act.
7. Opinion of the Judge : Accused are acquitted of the
offences punishable under Sections
3(1)(x) 3(1)(xi) of The Scheduled
Castes & Scheduled Tribes
(Prevention of Atrocities) Act and
u/s 354 r/w 149 of IPC and
accordingly they are acquitted of the
said offences.
Accused are convicted for the
offences punishable u/s 143, 144,
147, 148, 448, 504, 323, 324, 427
r/w 149 of IPC.
JU DG M E NT
The Assistant Commissioner of Police, Yalahanka Sub-
Division, Bengaluru has filed the charge sheet against the
accused No.1 to 6 for the offences punishable under Sections
143, 144, 147, 148, 504, 323, 324, 354, 427 of IPC and R/w
149 of IPC and u/s. 3(1)(x) 3(1)(xi) of The Scheduled Caste &
Scheduled Tribe (Prevention of Atrocities) Act.
2. Based upon the first information lodged by CW.1 P.
Devaraju, Yalahanka Police have registered the first
information report bearing Crime No.218/2014. After
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completion of investigation, charge sheet is submitted by the
Assistant Commissioner of Police, Yalahanka Sub-Division for
the aforesaid offences. This case which was pending before II
Addl. City Civil & Sessions Court (CCH-17) transferred to this
court as per Notification No. ADM I (A) 599/17 dt. 29.7.2017.
3. The case of the prosecution briefly stated as follows: -
CW.1 is the first informant before the police. CW.1 P.
Devaraju, CW.5. Ananda, CW.8 Venugopal are brothers. CW.6
Smt. Shanthamma is the wife of CW.1. CW.7 Saritha is the
daughter of CW.1. CW.1, CW.4 to CW.9 are all members of
same family and they are all belongs to Scheduled Caste. the
accused persons are not belongs to Scheduled Caste or
Scheduled Tribe. That on 1.8.2014 when CW.1, CW.4 to CW.9
were in the house of CW.1 situated at Hunasemaranahalli at
about 11 AM CW.1 heard sound from the house of his younger
brother, CW.8 Venugopal. The said newly constructed house
is situated by the side of the house of CW.1. When CW.1 on
hearing the sound came out from his house, he found that
accused No.1 Vijaya Kumar damaging the concrete slab of the
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house of CW.8 by hitting with hammer. Hence, CW.1 asked
accused No.1 as to why he is destroying the wall; at that time
the accused No.1 picked up quarrel with CW.1 and abused
him in the name of caste as "ವಡಡ ನನನ ಮಗನ." Accused No.1
assaulted CW.1 with hands and kicked him and caused him
injuries. Then CW.4 to CW.9 came to the spot and took CW.1
to his house. When CW.1, CW.4 to CW.9 were in the house of
CW.1 at that time the accused No.1 to 6 formed an unlawful
assembly and armed with wooden club, stones and bricks
came near the house of CW.1 and damaged the door and
windows of the house of CW.1 with stone and criminally
trespassed into the house of CW.1 by breaking open the door
and abused CW.1, CW.4 to CW.9 in filthy language by abusing
them as "ಬಬಬಳ ಮಗನ, ಸಬಳ ಮಗನ, ಬಬವರರ ಮಮಮಡಬರ, ಲಬಬಫರಮಮಮಡಬರ
ನಮ ಟ ಕಟಟಬಬಕಮ."
ಮ ಮನಯ ಪಕಕದಲ ಮನ ಕಟಟಬಬಕದರ ನವ ಹಬಳದಮತ ಜಗ ಬಟಮ
The accused persons assaulted CW.1, CW.4 to CW.9 with
hands and accused No.1 and 2 assaulted CW.1 to CW.4,
CW.6, CW.7, CW.9 with wooden club and caused them injuries
and accused No.3 and 4 pulled CW.6, CW.7 and CW.9 by
holding their clothes and outraged their modesty. The
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accused No.5 and 6 damaged the window glass of the house of
CW.1 by smashing the same with hands and caused loss to
the tune of Rs.10,000/-. The accused No.1 and 2 abused
CW.4 in the name of caste as " ಲಬ ವಡಡ ನನನ ಮಗನ, ನಬನಮ ನವ ಹಬಳದಮತ
ಮನ ಕಟಟ ರದರ ಸರ ಇಲಲದದದರ ಮತತಬ ಬಮದಮ ಇದಬ ರಬತ ಮಡಮತತಬವ ". Due to
assault made by the accused, CW.1, CW.4 to CW.9 have
sustained injuries. They have taken treatment in Government
Hospital, Yalahanka. Based on first information lodged by
CW.1 Yalahanka police registered the case in Crime
No.218/2014 and sent FIR to the court. The Investigation
Officer visited to the place of incident and conducted the
panchanama and seized the wooden club, stone, damaged
wooden door piece. The I.O., recorded the statement of
witnesses. The I.O., after collecting the report of the
Tahasildar regarding the caste of CW.1 and accused, after
collecting the wound certificates of the injured after collecting
all the materials, on completion of investigation has filed the
charge sheet against the accused No.1 to 6 for the aforesaid
offences. The accused No.1 to 6 who engaged counsel
released on bail.
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4. Charge sheet copies furnished to the accused and
thereby the provision u/s 207 of Cr.P.C., is duly complied
with.
5. That on 24.10.2017 charges are framed against the
accused No.1 to 6 for the offences punishable under Sections
143, 144, 147, 148, 448, 504, 323, 324, 354, 427 r/w 149 of
IPC and u/s 3(1)(x) 3(1)(xi) of The Scheduled Caste &
Scheduled Tribe (Prevention of Atrocities) Act for which
accused pleaded not guilty and claimed for trial.
6. During the trial, the prosecution has examined 12
witnesses out of 14 witnesses cited in the charge sheet as
PW.1 to PW.14 and documents Ex.P1 to Ex.P19 are marked.
M.O.1 to M.O.4 are marked. During the course of cross-
examination of witnesses the documents Ex.D1 to D3 are
marked on the side of defence.
7. That on 19.11.2019 statement of the accused u/s 313
of Cr.P.C., recorded by putting all the incriminating evidence
available on the side of the prosecution. The accused No.1 to
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Spl.C. No. 497/2014
6 have denied all the incriminating evidence. As the defence
evidence on the side of the accused, accused No.1 examined
as DW.1 and documents Ex.D1 to D11 are marked on the side
of the accused.
8. I have heard the arguments of the Learned Special
Public Prosecutor and the Learned Counsel for the accused
and perused the entire case papers.
9. The learned Special Public Prosecutor 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 is the complainant. PW.2 to PW.6 are the injured and
eye witness have supported the case of the prosecution. PW.7
mahazar witness partly supported the case of the prosecution.
PW.8 Dr. Asma Tabassum who examined the injured and
issued Ex.P3 to Ex.P7 wound certificate has supported the
case of the prosecution. She argued that PW.9 is the
Tahasildar who issued Ex.P8 report regarding the caste of
accused and issued Ex.P12 report regarding the caste of PW.1
Devaraju has clearly deposed that PW.1 belongs to Bhovi
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Caste and accused belongs to Vakkaliga caste. She argued
that PW.10 ACP has conducted the investigation and
submitted charge sheet. PW.11 Police Constable who carried
FIR to the court. PW.12 Police Inspector registered the case
based on Ex.P1 complaint lodged by PW.1 supported the case
of the prosecution. She argued that the defence taken by the
accused that PW.1 to PW.6 are not belongs to Scheduled Caste
is not acceptable. She submitted that the documents marked
on the side of the accused is not sufficient to hold that PW.1 to
PW.6 are not belongs to Scheduled Caste. She argued that
PW.1 to PW.6 have clearly deposed that the accused persons
who formed an unlawful assembly criminally trespassed into
the house of PW.1 and assaulted them with wooden club,
damaged the door and windows of the house of PW.1 and
caused loss. She submitted that minor discrepancies in the
oral evidence of PW.1 to PW.6 will not take away the case of
the prosecution. She submitted that the evidence of PW.1 to
PW.6 are corroborating with each other and their evidence is
also corroborated with medical evidence and the evidence of
investigation officer which would make it clear that the
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accused persons have committed the offences. She submitted
that the defence taken by the accused are not acceptable and
believable. She thus prays to convict the accused for the
charges framed against them.
10. The learned counsel for the accused No.1 to 6
submitted that a false complaint is lodged against the accused
persons in order to counter blast the case registered against
PW.1 to PW.6 based upon the complaint lodged by accused
No.2. He argued that PW.1 to PW.6 are not belongs to
Scheduled Caste. He submitted that PW.1 is not resident of
Hunasemaranahalli he is the resident of Sonnappanahalli
which can be seen from the report of the Revenue Inspector
and Village Accountant. He submitted that PW.1 himself
admitted that his mother tongue is Tamil and his father is
originally from Tamilnadu. PW.1 has admitted the document
Ex.D3A which is the school register extract belongs to his
uncle Govindaiah wherein the caste is mentioned as Kallu
Vadda. He submitted that PW.3 has admitted the document
Ex.D2 and Ex.D3. PW.3 has admitted that in Ex.D3 his caste
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is mentioned as Kallu Bhovi and his mother tongue is
mentioned as Tamil. He argued that accused No.1/DW.1 has
produced the documents Ex.D4 to Ex.D11 which would clearly
goes to show that PW.1 is not belongs to Scheduled Caste. He
submitted that Kallu Vadda or Kallu Bhovi are not recognized
or listed under the Scheduled Caste or Scheduled Tribe
category by the Government. He argued that PW.1
complainant and his family members have migrated to the city
of Bengaluru from Tamilnadu. He submitted that as per the
oral evidence of PW.1 at the time of the first incident near the
house of his brother he was alone in that place. He argued
that the oral evidence of PW.1 to PW6 would go to show that
there was no public view so as to attract Sec. 3(1)(x) of The
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
Act. He submitted that even in the case of alleged 2 nd incident
also since it is alleged that incident occurred within the house
of PW.1 there was also no public view. He argued that as the
prosecution fails to prove that PW.1 to PW.6 are belongs to
Scheduled Caste, the provisions of Sec. 3(1)(x) 3(1)(xi) of The
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
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Spl.C. No. 497/2014
Act are not attracts to this case. He submitted that PW.1 to
PW.6 are all accused in Crime No.217/2014 (SC No.578/2017)
pending before this court which was registered based on the
complaint lodged by accused No.2. He argued that the
present case is registered in order to counter blast to the
original complaint filed by accused No.2. He argued that there
is no corroboration in the oral evidence of PW.1 to PW.6. PW.1
to 6 have clearly deposed that though there was no
impediment to call the police to the place of incident
immediately after the incident. He submitted that PW.2 has
deposed that his shirt was stained with blood but in this case
no such material object seized by the police. He submitted
that except PW.1 to PW.6 no other independent witnesses have
been examined in this case. Mahazar witness has turned
hostile to the case of the prosecution. He submitted that the
oral evidence of PW.1 to PW.6 are not corroborating with the
medical evidence. He submitted that PW.8 is the Skin
Specialist. She was neither resident Medical Officer nor duty
medical officer. PW.8 had no authority to issue Ex.P3 to P7
wound certificate. He argued that the material object M.O.4 is
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not the piece of broken door. He argued that in Ex.P3 Wound
Certificate, history of assault is mentioned with sickle, wooden
stick, iron rod and stones. In this case, the Investigation
Officer has not seized any sickle, iron rod and stones. He
submitted that PW.8 Doctor stated that she within short span
of 5 minutes examined the injured one after another. He
argued that PW.10 I.O., received DCP Order on 11.8.2014 but
much earlier to that he has conducted investigation without
any authority. He argued that the Investigation Officer has
filed false charge sheet against the accused on the basis of
fabricated and created documents. He submitted that during
the course of cross-examination of PW.1 nothing is elicited by
the Special Public Prosecutor to discard his examination-in-
chief version. He argued that the prosecution has failed to
bring home the guilt of the accused beyond all reasonable
doubt. He submitted that there is no cogent evidence on the
side of the prosecution to show that the accused persons have
committed the offences. Thus, he prays for acquittal of the
accused.
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11. The learned counsel for the accused also filed written
arguments. In support of his contentions he relied upon
following decisions: -
1) (2001)6 SCC 181 in T.T. Antony vs. State of Kerala and
others.
2) (1999) 3 SCC 427 in Babu Verghese and others vs. Bar
Council of Kerala and others.
12. Upon hearing, the following points arise for my
determination:-
POINTS
1) Whether the prosecution proves beyond all
reasonable doubt that on 1.8.2014 at about
11 AM, when the accused No.1 started
damaging the wall of a house of CW.8
situated at Hunasamaranahali at that time
when CW.1 questioned the accused, at that
time the accused No.1 abused CW.1 in the
name of caste and insulted and humiliated
him within public view and when CW.1 was
brought by CW.4 to 9 to the house of CW.1
at that time the accused persons with
common object criminally trespassed into
the house of CW.1 and abused CW.1, CW.4
to CW.9 in the name of caste and insulted
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Spl.C. No. 497/2014
and humiliated CW.1, CW.4 to CW.9 within
public view and thereby the accused
committed offence punishable u/s 3(1)(x) of
The Scheduled Caste & Scheduled Tribes
(Prevention of Atrocities) Act?
2) Whether the prosecution proves beyond all
reasonable doubt that on 1.8.2014 at about
11 am, the accused persons formed an
unlawful assembly and in furtherance of
their common object, the accused armed
with deadly weapon, wooden club and stick
came near the house of CW.1 and damaged
the door of the house of PW.1 and
criminally trespassed into the house and
committed rioting and thereby the accused
No.1 to 6 have committed offences
punishable u/s 143, 144, 147, 148 r/w
149 of IPC?
3) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in the prosecution of their common object,
the accused persons damaged the door of
the house of the complainant and
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criminally trespassed into the house of
CW.1 committed the house trespass and
thereby committed offence punishable u/s
448 r/w 149 of IPC?
4) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object by
criminally trespassing into the house of
CW.1 abused CW.4 to CW.9 in filthy
language and insulted them and thereby
the accused has committed the offence
punishable u/s 504 r/w 149 of IPC?
5) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object
assaulted CW.1, CW.4 to 9 with hands,
with bricks and wooden club and caused
them simple injuries and thereby accused
has committed the offence punishable u/s
323 r/w 149 of IPC?
6) Whether the prosecution proves beyond all
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reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object
assaulted CW.1, CW.4 to 9 with wooden
club and caused them simple injuries and
thereby accused has committed the
offence punishable u/s 324 r/w 149 of
IPC?
7) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object
accused persons assaulted CW.6, CW.7,
CW.9 by pushing them with hands and
touching them and outraged their
modesty and thereby accused has
committed the offence punishable u/s
354 r/w 149 of IPC?
8) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object
damaged the doors and windows of the
house of CW.1 and thereby caused loss to
CW.1 and thereby accused has committed
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the offence punishable u/s 427 r/w 149
of IPC?
9) Whether the prosecution proves beyond all
reasonable doubt that on the above said
date, time and place the accused persons
in furtherance of their common object
accused outraged the modesty of CW.6,
CW.7, CW.9 who belongs to Scheduled
Caste and thereby accused has committed
the offence punishable u/s 3(1)(xi) of The
Scheduled Caste & Scheduled Tribes
(Prevention of Atrocities) Act?
10) What order?
13. My findings on the above points are as follows:
Point No.1:- In the negative
Point No.2:- In the affirmative
Point No.3:- In the affirmative
Point No.4:- In the affirmative
Point No.5:- In the affirmative
Point No.6:- In the affirmative
Point No.7:- In the negative
Point No.8:- In the affirmative
Point No.9:- In the negative
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Point No.10:- As per final order
for the following
REASONS
14. POINT No.1 to 9 :- These points are interlinked with
each other, hence for sake of convenience and to avoid
repetition of facts and evidence I would like to take all these
points together for discussion.
15. PW.1 P. Devaraju has deposed that he belongs to
Scheduled Caste. The accused persons are belongs to Gowda
community. The accused knows about his caste. At the time
of this incident, he was residing at Hunasamaranahalli. His
house is situated near the house of the accused. He has
deposed that his brother CW.8 Venugopal was constructing
the house adjacent to the house of the accused. That on
1.8.2014 at about 11 AM when he was in his house, he
heard the sound. Hence, he came out from the house and
saw the accused No.1 with hammer destroying the wall of
house of CW.8. When he asked the accused No.1 why he is
destroying the wall, at that time the accused No.1 quarrelled
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with him and abused him as "ವಡಡ ನನನ ಮಗನ." The accused No.1
kicked him on his mouth and knocked him down on the
ground. At that time CW.6 Shanthamma, CW.4 Thangavelu
and CW.9 Lakshmi taken him to his house. When he and
CW.4 to CW.9 were in his house at that time the accused
No.1 came along with accused No.2 to 6 near his house and
quarrelled with them asking to open the door of his house
and entered into the house and accused No.1 assaulted him
with wooden club on his head. The accused persons also
assaulted CW.4 to CW.9 with wooden club and caused them
bleeding injuries. Hence, he lodged the complaint to the
Yalahanka police as per Ex.P1. He has deposed that he and
CW.4, CW.6, CW.7 and CW.9 taken treatment in Yalahanka
Government Hospital. He has deposed that due to damage
made by the accused by damaging the door and windows he
has sustained loss. PW.1 has identified M.O.1 and M.O.2
bamboo stick used by the accused to assault them and also
identified M.O.3 stone, M.O.4 wooden piece. During the
course of his cross-examination by the learned counsel for
the accused, PW.1 admitted the document Ex.D1 copy of the
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application given to the Revenue Inspector. He has admitted
the suggestion that in the School Register of his uncle
Govindaiah his caste is mentioned as "Kallu Vadda". He has
admitted the suggestion that on the basis of complaint lodged
by accused No.2 case is registered against him and other
members of his family and same is pending before this court.
He has admitted the suggestion that there is civil suit
pending between the accused No.1 and CW.8 Venugopal. He
has denied the suggestion that as they had enimity with the
accused regarding the setback area, they have filed this false
complaint against the accused. He has admitted the
suggestion that in all the documents produced in this case
his address shown as Vidya Nagar Cross, Sonnappanahalli.
He has deposed that Vidya Nagar Cross is situated at the
distance of 1½ kilometers from Hunasamaranahalli. He has
deposed that soon after the first incident they have not
informed the police over phone. He has deposed that number
of persons gathered at the time of incident. He has deposed
that Ex.P1 complaint was lodged by his brother. He has
denied all other suggestions made to him.
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16. PW.2 Venugopal has deposed that he and PW.1 and
CW.4 to 7, CW.9 are all belongs to Bhovi community comes
under Scheduled Caste. Accused persons are belongs to
Vakkaliga caste. He states that accused knows about their
caste. He has deposed that he was constructing the house
near the house of PW.1 which is just adjacent to the house of
accused No.1 at Hunasamaranahalli. That on 1.8.2014 at
about 11 AM on hearing the sound PW.1 came out from the
house and found that accused No.1 was destroying the
concrete mould of his house with the hammer. Therefore,
PW.1 asked the accused No.1 why he is damaging the wall, at
that time accused No.1 kicked PW.1 and abused him as " ವಡಡ
ನನನ ಮಗನ, ನನಗ ಏನಕಕ ಮನ, ನವ ಹಬಳದಮತ ಮನ ಕಟಟಬಬಕಮ." PW.2 has
deposed that he and his family members brought PW.1 to the
house of PW.1 and they are all inside the house of PW.1, by
that time the accused persons came near the house of PW.1
and by breaking the windows and door with stone, the
accused trespassed into the house of PW.1 and assaulted
PW.1 with wooden stick. The accused persons also assaulted
him and CW.4 to CW.7 and CW.9 with wooden stick and with
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hands. The accused persons also abused them in the name
of caste as "ವಡಡ ನನನ ಮಕಕಳಮ" and other abusive words. Due to
assault made by the accused, PW.1 and CW.4 have sustained
bleeding injuries. The people who gathered near their house
asked them to lodge the complaint. Thereafter they came to
police station then the police sent PW.1 Devaraju, CW.4
Thangavelu and injured Shanthamma, Ananda and
Lakshmamma to the hospital. On the same day his brother
PW.1 lodged the complaint to the police. On 2.8.2014, the
police visited to the house of PW.1 and conducted the
panchanama as per Ex.P2 and seized M.O.1 to M.O.4.
During the course of his cross-examination by the learned
counsel for the accused PW.2 has deposed that their mother
tongue is Kannada and Tamil. He has admitted the
suggestion that they have not made any attempt to inform to
the police over phone. He has admitted the suggestion that
the counter case is pending against them which is registered
on the basis of complaint lodged by accused No.2. He has
deposed that he has taken treatment in the hospital. He has
denied all the suggestions made to him.
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17. PW.3 Thangavelu is the brother of PW.1 and PW.2
has deposed that he and PW.1 and PW.2, CW.4, CW.5, CW.6,
CW.7, CW.9 are all belongs to Scheduled caste. That on
1.8.2014 at about 11 AM when he was in the house of PW.1
at that time PW.1 heard wall hitting sound. Hence, PW.1
came out from the house at that time the accused persons
assaulted PW.1 then by hearing the quarrel sound he along
with PW.2, CW.5, CW.6, CW.7, CW.8 and CW.9 went to that
place at that time, the accused also abused them. As the
accused assaulted PW.1, PW.1 sustained injuries. Hence,
they brought PW.1 to his house. Thereafter within 10
minutes all the accused persons came near their house and
damaged windows and door with the help of stones and by
breaking the door entered into the house. Accused
Shivashankar and Vijaya Kumar assaulted PW.1 Devaraj with
wooden club and caused him injuries. Accused Krishnappa
and Venugopal by holding tuft of hair of Shanthamma pulled
her. The accused persons also given life threat to them.
Thereafter he and PW.1 Devaraju, Smt. Shanthamma, Saritha
are all taken treatment in Yalahanka Hospital. He has
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identified M.O.1 to M.O.4. During the course of his cross-
examination by the learned counsel for the accused, he has
admitted the documents Ex.D2 Face Book Profile photo
extracted. He has admitted the document Ex.D3 is his
School Register Extract. He admitted the suggestion that in
Ex.D3 his caste is mentioned as "Kallu Vadda". He has
admitted the suggestion that he was not witnessed the first
incident i.e., quarrel taken place between the accused No.1
and PW.1. He has deposed that the distance between the
house of PW.1 and newly constructed house of PW.2 is 20' to
30'. He has deposed that due to assault made by the accused
he has sustained bleeding injuries and blood fallen to his
clothes. He has not given bloodstained clothes to the police.
He has admitted the suggestion that there are other
residential houses near their house. He has denied all other
suggestions made to him.
18. PW.4 Anand is the son of PW.1. PW.4 has deposed
that he belongs to Bhovi caste comes under Scheduled Caste.
That on 1.8.2014 at about 11 AM, the accused No.1 was
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breaking the wall at that time PW.1 went there and asked the
accused why he is breaking the wall, then the accused No.1
Vijaya Kumar quarrelled with PW.1 Devaraju and abused him
in the name of caste as " ವಡಡ ಜತ ನನನ ಮಕಕಳ, ಕಮಮ ಜತ ನನನ ಮಕಕಳ" and
pushed PW.1 to the ground then he along with his mother,
uncle brought PW.1 to his house. Thereafter, accused
persons came near their house and by breaking open the door
of the house trespassed into the house and accused persons
assaulted him, his father, his mother, his uncle with wooden
club and with hands. The accused persons also abused them
as "ವಡಡ ಜತ ನನನ ಮಕಕಳ, ಕಮಮ ಜತ ನನನ ಮಕಕಳ, ಸಬಳ ಮಕಕಳ." Due to assault
made by the accused they have sustained injuries and taken
treatment in the hospital. He has identified M.O.1 to M.O.4.
During the course of his cross-examination by the learned
counsel for the accused, PW.4 has denied all the suggestions
made to him.
19. PW.5 Shanthamma is the wife of PW.1. She has
deposed that they belongs to Bhovi caste. The accused
persons belongs to Vakkaliga caste. At about 5 years back on
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August 1st at about 11 AM by hearing the breaking sound her
husband PW.1 came out of the house and went to that place.
At that time the accused No.1 picked up quarrel with PW.1
and abused him as "ವಡಡ ಜತ ನನನ ಮಕಕಳ, ಸಬಳ ಮಕಕಳ" and kicked
him. Hence, PW.1 sustained bleeding injuries. Hence, they
brought PW.1 to his house. At that time the accused persons
came near their house and break opened the door by using
stones and entered inside the house and assaulted them with
wooden club and abused them. The accused persons also
damaged the windows. The accused persons abused them in
filthy language. The accused persons pulled her and her
daughter Saritha and her daughter-in-law by holding tuft of
hair. Thereafter he went to the police station. The police took
them to Yalahanka Government Hospita1. She has identified
M.O.1 to M.O.4. During the course of her cross-examination
by the defence she has denied the suggestion that she was
residing in Vidya Nagar Cross. She has deposed that when
the sound heard her husband PW.1 alone went outside in
order to see. As on the date of incident itself they went to the
police station. She has admitted the suggestion that she is
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also arrayed as accused in SC No. 578/2017. She has denied
all other suggestions made to her.
20. PW.6 Lakshmamma is the sister of PW.1. PW.6 has
deposed that on 1.8.2016 at about 11 AM she was in the
house of PW.1 Devaraju and at that time CW.4 to 8 were also
in that house. They heard the quarrelling sound of the
accused No.1 quarrelling with PW.1. Hence they went to the
place of incident. She has deposed that the accused No.1
assaulted PW.1 on his mouth. Hence, PW.1 sustained
injuries. Then they are all brought PW.1 to his house. When
they were in the house at that time all the accused persons
came near their house and break open the door of their house
with stone. The accused persons trespassed into their house
and assaulted PW.1 with wooden club. The accused persons
also assaulted her and assaulted PW.5 Shanthamma and
PW.4 Anand, PW.3 Thangavelu and Saritha. Hence, they
were all sustained injuries. When they went to the police
station in order to lodge the complaint, the police sent them
to the hospital. She has given statement before the police.
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Spl.C. No. 497/2014
She has identified M.O.1 to M.O.4. During the course of her
cross-examination by the learned counsel for the accused,
PW.6 has denied all the suggestions made to her.
21. PW.7 G. Vishwanath, mahazar witness has deposed
that on 2.8.2014 the police came to the Hunasamaranahalli
near the house of PW.1 Devaraju and conducted the mahazar
as per Ex.P2, but the police have not seized any material
objects in his presence. Since PW.7 has partly supported the
case of the prosecution, the learned Special Public Prosecutor
cross-examined PW.7. During the course of his cross-
examination by learned Special Public Prosecutor PW.7 has
denied the suggestion that in his presence the police have
seized M.O.1 to M.O.4. During the course of cross-
examination by the learned counsel for the accused PW.7 has
admitted the suggestion that complainant Devaraju is his
friend. He has admitted the suggestion that he do not know
the contents of Ex.P2 mahazar.
22. PW.8 Dr. Asma Tabassum, doctor of General
Hospital, Yalahanka has deposed that on 1.8.2014 injured by
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name P. Devaraju, Smt. Shantha, Thangavelu, Saritha,
Lakshmamma came to the hospital accompanied with PC
No.2156 Gulappa of Yalahanka Police Station with history of
assault by Vijaya, his father and brothers on the same day at
about 10.30 AM. On examination of injured P. Devaraju she
found following injuries:
1) 5cm fresh lacerated wound over the vertex with
bleeding,
2) 3 cm fresh lacerated wound over the left forehead
above the left eyebrow,
3) tenderness over both the knee joints.
She has issued Ex.P3 Wound Certificate in this regard. She
has deposed that on examination of injured Smt. Shanthi,
she found:
1) Multiple fresh abrasions over left leg,
2) Tenderness over the left foot on the dorsal surface.
She has issued wound certificate as per Ex.P4. She has
deposed that on examination of injured Thangavelu she
found:
1) 3cm and 2 cm two fresh lacerated wounds over
vertex.
2) 8 cm fresh abrasion over the right elbow joint.
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She has issued wound certificate as per Ex.P5. She has
deposed that on examination of injured Smt. Saritha, she
found:
1) Multiple fresh abrasions over the upper limbs.
2) 5 cm x 5 cm contusion over the left thigh above the
knee joint skin over it was reddish.
She has issued Ex.P6 Wound Certificate. PW.8 has deposed
that on examination of injured Smt. Lakshmamma she found
tenderness over the occipital region. She issued Ex.P7 wound
certificate. PW.8 Doctor deposed that the injuries mentioned
in Ex.P3 to P7 wound certificates are simple in nature. She
has admitted the suggestion that these injuries are possible
with M.O.1 and M.O.2 wooden stick. During the course of
her cross-examination by the defence, PW.8 has denied the
suggestion that she has issued Ex.P3 to P7 under the
pressure of the Police Officer. She has denied the suggestion
that within span of 15 minutes it is not possible to examine
the injured Lakshmi, Saritha and Shanthi. She has deposed
that she has given treatment to the injured after examination.
She has denied all other suggestions made to her.
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23. PW.9 Mahanedra, Tahasildar has deposed that on
9.9.2014, the ACP sent requisition and sought the caste
certificate of accused. Hence, he after receiving the report of
Deputy Tahasildar, he has issued his report as per Ex.P8
stating that accused Santhosh belongs to Bhovi caste.
Accused Shivashankar, Venugopal, Krishnappa, Vijaya
Kumar, Srinivas are belongs to Vakkaliga caste. PW.9 further
deposed that on 5.8.2014 he received the requisition letter of
ACP, Yalahanka Sub-Division who sought for the caste
certificate of complainant Devaraju. Hence, he after receiving
Ex.P13 to P15 report of Revenue Inspector, Deputy
Tahasildar, Village Accountant sent his report as per Ex.P12
on 30.9.2014 stating that complainant P. Devaraju belongs to
Bhovi caste. During the course of his cross-examination by
the learned counsel for the accused PW.9 admitted the
suggestion that he has not issued caste certificate of the
complainant but issued Ex.P12 report. He has denied the
suggestion that since the complainant is not belongs to
Scheduled Caste, for that reason he has not issued the caste
certificate in prescribed format. He has admitted the
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suggestion that in Ex.P15 it is mentioned that Devaraju was
not residing in Hunasemaranahalli, but residing at
Sonnappanahalli. He has denied the suggestion that PW.1
Devaraju and his family members are not belongs to
Scheduled Caste. He has denied all other suggestions made
to him.
24. PW.10 H.A. Thirtharaju, ACP has deposed that on
1.8.2014 he took up the case file from CW.13 Ramakrishna
Reddy, PSI for further investigation. He has received Ex.P16
DCP Order. On 2.8.2014 he visited to the place of incident
and conducted the panchanama as per Ex.P2 and seized
M.O.1 to 4 in the presence of panchas Vishwanath and
Sathyanarayana, as the place of incident was shown by
complainant's brother Venugopal. On 5.8.2014 he sent
requisition to the Tahasildar seeking caste certificate of the
complainant. On 6.8.2014 he has received Ex.P3 to P7
wound certificates of injured. On 14.8.2014 he has recorded
the statement of CW.4 and 5 and on 16.8.2014 he recorded
the statement of CW.6 and 7 and on 18.8.2014 he recorded
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the statement of CW.8 and 9. On 9.9.2014 he sent
requisition to the Tahasildar seeking caste certificate of the
accused. On 30.9.2014 he received Ex.P12 report of
Tahasildar regarding the caste of the complainant and also
received Ex.P13 to Ex.P15. On 14.10.2014 he received Ex.P8
report of the Tahasildar regarding the caste of accused. On
20.10.2014 on completion of investigation he has filed the
charge sheet against the accused. During the course of his
cross-examination by the learned counsel for the accused,
PW.1 has admitted the suggestion that he has received
Ex.P16 DCP order on 11.8.2014. He has denied the
suggestion that since he was not Investigation Officer till
11.8.2014 he was not conducted any investigation as deposed
by him. He has denied the suggestion that the case and
counter case shall be investigated by the same Investigation
Officer.
25. PW.11 Anand Nayak, Police Constable has deposed
that on 1.8.2014 he carried Ex.P19 FIR and Ex.P1 complaint
to the home office of the Judge and submitted the same at
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10.20 PM on 1.8.2014. During the course of his cross-
examination by the learned counsel for the accused nothing
is elicited from his mouth to discard his version.
26. PW.12 M.V. Ramakrishna, PSI has deposed that on
1.8.2014 based on Ex.P1 complaint lodged by PW.1 P.
Devaraju he registered the case in crime No.248/2014 and
sent Ex.P19 FIR to the court. Thereafter he has given the
case file to CW.14/PW.10 for further investigation. During
the course of his cross-examination by the learned counsel
for the accused he has denied all the suggestions made to
him.
27. In this case, as a defence the accused No.1
examined himself as DW.1. DW.1 has deposed that 15 days
prior to 1.8.2014 when he requested PW.1 Devaraju to
construct the house by leaving setback area, PW.1 agreed for
the same. That on 1.8.2014 he along with his brother
Shivashankar visited near his house and found that Devaraju
and Venugopal constructing the house without leaving the
setback area. Hence, he requested Devaraju and Thangavelu
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Spl.C. No. 497/2014
to leave the setback area, they abused him in filthy language
as "ಬಬಬಳ ಮಕಕಳ, ಸಬಳ ಮಕಕಳ". Then Devaraju, Thangavelu,
Keshavamurthy, Anand Kumar, Lakshmi, Shanthamma are
all abused him and his brother Shivashankar and assaulted
them and caused them injuries. Hence, they went to the
police station to lodge the complaint at that time the police
sent them to the hospital for treatment. Thereafter they
lodged the complaint. He has deposed that in the school
record of Govindaiah H.A., uncle of Devaraju, his caste is
mentioned as Kallu Vadda. He has produced Ex.D3A
Admission Register Extract. He has deposed that the
Government authorities have issued Ex.D4 stating that "Kallu
Bhovi" caste does not scheduled as Scheduled Caste or
Scheduled Tribe. He has produced documents Ex.D5 to D11.
During the course of his cross-examination by the learned
Special Public Prosecutor he has denied the suggestion that
he is falsely contending that Devaraju, Thangavelu,
Krishnamurthy, Ananda, Kumar, Lakshmi, Shanthamma
were quarrelled with him and his brother. He has denied the
suggestion that on 1.8.2014 he was damaged the wall of the
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house of CW.8 Venugopal at that time when CW.1 questioned
him then he assaulted CW.1 and caused him injuries. He has
denied the suggestion that when the family members of CW.1
took him to his house at that time all the accused of the
present case by damaging the door and windows of the house
of PW.1 and assaulted CW.1, CW.4 to CW.9 and caused them
injuries. He has denied the suggestion that they have also
abused CW.1, CW.4 to CW.9 in filthy language and in the
name of caste and given life threat to them. He has denied
that in order to escape from the criminal liabiity he has filed
false complaint against CW.1, CW.4 to 9. He has denied the
suggestion that he is falsely claiming that PW.1 and his family
members are not belongs to Scheduled Caste.
28. Based on the above evidence, it has to be seen that
if the prosecution has proved the charges against the accused
beyond all reasonable doubt. In this case, the main
argument of the learned counsel for the accused is that PW.1
and his family members are not belongs to Scheduled Caste.
The learned counsel for the accused argued that the
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document Ex.P12 report submitted by the PW.9 is not in
prescribed formate and not supported by any other
documents including the documents Ex.P13 to P15. He
argued that PW.1 himself admitted the document Ex.D3A
school admission register extract of his uncle Govindaiah
wherein the caste is mentioned as "Kallu Vadda". He
submitted that DW.1 has also produced the document
Ex.D3(A) School Admission Register of Govindah H.A.,
wherein it is mentioned that he belongs to Kallu Vadda. He
argued that in Ex.D3 school records of PW.3 his caste is
mentioned as Kallu Bhovi. He argued that the accused
persons have produced the document Ex.D4 and D5
document obtained through Right to Information Act from the
Government of Karnataka wherein it is stated that Kallu
Vadda and Kallu Bhovi are not listed in Scheduled Caste or
Scheduled Tribes. He argued that PW.1 to PW.6 ancestors
were originally from Tamilnadu and migrated to the
Karnataka. This fact has been admitted either directly or
indirectly by all these witnesses. He submitted that the
Tahasildar PW.9 has not collected any original records to
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show the caste of PW.1 to PW.6. He submitted that in the
report of the Revenue Inspector and the Deputy Tahasildar
which marked at Ex.P13 to P15 it is clearly mentioned that
PW.1 was not residing at Hunasamaranahalli but residing at
Sonnappanahalli. He submitted that the prosecution has
failed to prove that PW.1 to PW.6 are belongs to Scheduled
Caste. The learned counsel for the accused relied upon the
decision reported in (1999) 3 SCC 427 in Babu Verghese and
others vs. Bar Council of Kerala and others to contend that
when statute prescribed the doing of an act in a particular
manner - the act cannot be considered to have been done
unless it was done in the prescribed manner. He argued that
since the document Ex.P12 is not in prescribed formate it is
not acceptable. On the other hand, the learned Special
Public Prosecutor submitted that all the witnesses PW.1 to
PW.6 have clearly deposed that they are all belongs to
Scheduled Caste. PW.9 is the Tahasildar who is the proper
authority to say about the caste of PW.1 complainant has
clearly deposed that complainant is belongs to Bhovi caste.
She submitted that the accused persons in order to mislead
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Spl.C. No. 497/2014
this court have produced the documents Ex.D1 to Ex.D3,
D3A, Ex.D4 to D11 and falsely contended that PW.1 is not
belongs to Scheduled Caste. She submitted that the
prosecution has produced the documents on 10.1.2019 such
as Notarised attested copy of caste certificates to show that
PW.1 is belongs to Scheduled Bhovi caste comes under
Scheduled Caste.
29. I have appreciated the rival contentions and perused
the documents at Ex.P12 to P15 produced by the prosecution
and also perused the documents Ex.D1 to Ex.D11 and D3A.
In Ex.D3A school records of H.A. Govindaiah, uncle of of
PW.1 his caste is mentioned as "Kallu Vadda" in Ex.D3 school
record of PW.3 his caste is mentioned as Kallu Bhovi. The
arguments of the learned counsel for the accused is that
Kallu Vadda or Kallu Bhovi are not in the list of Scheduled
Caste or Scheduled Tribes. No doubt as per Ex.D4 and D5
the Government authorities have issued under Right to
Information Act that caste called Kallu Bhovi and Kallu Vadda
is not listed in Scheduled Caste or Scheduled Tribe. The
41
Spl.C. No. 497/2014
accused persons have not produced any document to show
that there exists any such caste as Kallu Vadda or Kallu
Bhovi. Without producing the documents to show that there
exist any such caste as Kallu Vadda or Kallu Bhovi mere by
filing the application before the Public Information Authority
and obtaining endorsement that Kallu Vadda, Kallu Bhovi is
not listed in Scheduled Caste or Scheduled Tribe is not
sufficient. The accused must show that there exist Kallu
Vadda or Kallu Bhovi caste. Since the accused persons have
not produced any document to show that there exist Kallu
Vadda or Kallu Bhovi caste. No evidentiary value can be
attached to the documents Ex.D4 and D5. In the oral
evidence of PW.1 it come in the evidence that they are all
doing the stone cutting work. Since the family of PW.1 are
doing stone cutting work, while mentioning their caste in
school records it would have mentioned "Kallu" that does not
mean that the uncle of PW.1 belongs to Kallu Vadda and PW.3
belongs to Kallu Bhovi.
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Spl.C. No. 497/2014
30. During the course of cross-examination of P.W.1
the learned counsel for the accused confronted and got
marked document Ex.D.1 copy of application given to the
Revenue Inspector. Even if we peruse the document Ex.D.1 it
is very clear that P.W.1 even in his application also stated
that he and his ancestors were doing stone cutting work. That
may be reason in the school records of P.W.3 and school
records of Govindaiah caste name may be suffixed by word
"Kallu" means stone. In the present case the accused persons
have not taken any specific defence regarding the caste of
P.W.1 to P.W.6. It is not the defence of the accused that P.W.1
to P.W.6 are belongs to particular caste. Without taking
specific defence regarding the caste of P.W.1 to P.W.6 merely
because in the school records of one Govindaiah uncle of
P.W.1 and in school records of P.W.3 their caste name is
suffixed by word "Kallu" that itself is not sufficient to hold
that they are not belongs to scheduled caste. Admittedly,
every person in India had caste and religion. Under Such
circumstances, the accused without taking any specific
defence regarding the caste of P.W.1 to P.W.6 by basing upon
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the documents Ex.D.4 and Ex.D.5 contending that P.W.1 is
not belongs to scheduled caste which is not acceptable. It is
the case of the prosecution that P.W.1 to P.W.6 are all belongs
to Bhovi Caste comes under scheduled caste. It is not the
contention of the accused that Bhovi caste does not comes
under scheduled caste. The accused persons does not
ventured to take contention that Bhovi caste does not comes
under scheduled caste. P.W.9 Tahsildar not only issued the
document Ex.P.12 report regarding caste of P.W.1 but also
issued Ex.P.8 report regarding caste of accused. In Ex.P.8
report P.W.9 has mentioned that accused Santhosh belongs
to Bhovi caste and accused Shivashankar, Venugopal,
Krishnappa, Vijaya Kumar, Srinivas are belongs to Vokkaliga
caste. The accused persons have not seriously disputed the
document Ex.P.8 and deposition of P.W.9 regarding caste of
Accused. P.W.9 is the Tahsildar who is best person to say
about the caste of P.W.1 and accused issued Ex.P.8 and
Ex.P.12 report regarding their caste. Merely because P.W.9
has not issued caste certificate in prescribed format that
cannot be ground to disbelieve the version of P.W.9 and
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document Ex.P.8 and Ex.P.12. P.W.1 to P.W.6 who are all best
persons to say about their caste have clearly deposed that
they are all belongs to scheduled caste. I have gone through
the decision cited by the learned counsel for the accused
reported in (1999) 3 SCC 427. In my humble view this cited
decision can be distinguished on facts. Since in this case the
accused persons have not taken specific defence to say which
caste P.W.1 to P.W.6 are belongs hence merely because the
Govt. issued endorsement as per Ex.D.4. Ex.D.5 that Kallu
Vodda and Kallu Bhovi are not listed in Scheduled Caste or
Scheduled Tribes it is not sufficient to hold that P.W.1 to
P.W.6 are not belongs to scheduled caste. The oral evidence of
D.W.1 and documents Ex.D.1 to Ex.D.11 are not helpful to
the accused to show that P.W.1 to P.W.6 are not belongs to
scheduled caste. In his chief examination of D.W.1 he has not
tried to give positive evidence regarding the caste of P.W.1. In
other words D.W.1 tried to give negative evidence by
contending that Kallu Vodda and Kallu Bhovi are not listed as
Scheduled Caste or Scheduled Tribe. I have already pointed
out that without showing existence or non existence of any
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such caste such as Kallu Vodda or Kallu Bhovi it is very easy
to bring the document under Right to Information Act by
asking negative questions in application. D.W.1 in his oral
evidence has not taken specific defence that P.W.1 is belongs
to particular caste which does not comes under Scheduled
Caste. P.W.1 to P.W.6 have deposed that they are all belongs
to scheduled caste. P.W.9 Tahsildar also issued Ex.P.12
report stating that P.W.1 belongs to Bhovi caste. P.W.10/I.O.
has deposed that he sent requisition to the Tahsildar to
obtain caste certificate of P.W.1 and accused and received
Ex.P.8 to Ex.P.15 documents from the Tahsildar. When the
investigation officer asks about the particulars of caste of any
person under such circumstances no fault can be found on
the part of Tahsildar in submitting report regarding caste.
Merely because P.W.9 Tahsildar not sent the caste certificate
to the Tahsildar in prescribed format that cannot be ground
to doubt the report Ex.P.8 and Ex.P.12 submitted by P.W.9. In
this case while addressing the arguments learned Spl.P.P.
produced copies of caste certificates in prescribed format.
Since these documents produced along with memo dated
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10.12.2019 not marked on the side of the prosecution I am
not discussing about these documents. The oral evidence of
P.W.1 to P.W.6, which is supported by oral evidence of P.W.9
and documents Ex.P.8, Ex.P.12 and documents Ex.P.9,
Ex.P.10, Ex.P.11, Ex.P.13 to Ex.P.15 are sufficient to hold
that P.W.1 to P.W.6 are all belongs to scheduled caste,
Accused No.4 Santhosh Kumar is belongs to scheduled caste,
Accused No.1 to 3, 5 and 6 are all belongs to Vokkaliga caste
which does not comes under Scheduled Caste or Scheduled
Tribes. The defence taken by the accused is that P.W.1 to
P.W.6 are not belongs to scheduled caste is not acceptable.
31. It is the specific case of the prosecution is that the
incident were occurred in two places. It is the case of the
prosecution is that on 1.08.2014 at 11-00 AM when P.W.1
was in his house along with other family members is P.W.2 to
P.W.6 at that time he heard the sound and came out from
house and found that accused No.1 destroying the wall of
house of his younger brother Venugopal with the hammer. On
questioning the same accused No.1 and 2 assaulted him
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kicked him and abused him in the name of caste. Then his
family members came to there and brought P.W.1 to his
house. Thereafter, accused No.1 and 2 along with accused
No.3 to 6 came to the house of P.W.1 and broke opened the
door of the house with stone and criminally trespassed into
the house assaulted P.W.1 to P.W.6 with wooden club and
caused them injuries and abused them in the name of caste
and in filthy language and also damaged the door and
windows by breaking the same and caused loss to P.W.1.
While addressing the arguments learned counsel for the
accused vehemently argued that P.W.1 was not residing at
Hunasamaranahalli but was residing at Vidhyanagar Cross.
This argument of learned counsel for accused is not
acceptable because existence of the house of P.W.1 near the
house of accused No.1 and 2 at Hunasamaranahalli is not
seriously disputed by the accused. It is also not in dispute
that P.W.1-P.Devaraju was looking the construction work of
the house of P.W.2-Venugopal. It is also not in dispute that
while constructing the house of Venugopal near the house of
accused No.1 and 2 the dispute arose between them in
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respect of set back area. P.W.1 to P.W.6 are all deposed that
on 1.08.2014 they were all in the house of P.W.1 -P.Devaraju.
In this case P.W.7 mahazar witness even though turned
hostile but he has supported to the extent that on 2.08.2014
the police visited to the house of complainant situated at
Hunasemaranahalli and conducted mahazar as per Ex.P.2.
This version of P.W.7 is not tested in his cross-examination by
the defence. It is now settled principle of law is that merely
because the witnesses turned hostile their evidence cannot
discarded wholly. The Hon'ble Supreme Court in the decision
reported in 2010 SAR (Cal) 382 Paramajith Singh @ Pamma
V/s State of Uttar Khand held that the deposition of hostile
witnesses can be relied upon at least upto the extent they
supported the case of the prosecution. In the decision
reported in (2014) 3 SCC 421 in Birju V/s State of Madhya
Pradesh the Hon'ble Supreme Court held that the evidence of
hostile witness cannot be discarded as a whole and relevant
part there of which are admissible in law can be used either
by the prosecution or by the defence. In the present case even
though P.W.7 has turned hostile regarding seizure of material
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object but he has clearly supported the case of the
prosecution to the extent that the police visited to the house
of P.W.1 situated at Hunasamaranahalli and conducted
Ex.P.2 mahazar. P.W.10/ACP has also deposed that on
2.08.2014 he visited to the place of incident and conducted
mahazar as per Ex.P.2 and seized M.O.1 to M.O.4. During the
course of cross-examination of P.W.10 the accused have not
taken any such defence that the house of P.W.1-P.Devaraju is
not situated at Hunasamaranahalli. Under such
circumstances the arguments of learned counsel for the
accused that as on 1.08.2014 P.W.1 was not residing at
Hunasamaranahalli is not acceptable.
32. The learned counsel for the accused much argued
about the evidence of P.W.8. He argued that P.W.8 is a Skin
Specialist in General Hospital. She was neither Resident
Medical Officer nor Duty Medical Officer hence the
documents Ex.P.3 to Ex.P.7 wound certificates issued by her
is not acceptable. On the other hand learned Spl.P.P.
submitted that there is no hard and fast rule is that the Skin
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Specialist cannot examine the injured who came to hospital
with history of assault.
33. I have appreciated the rival contentions. It is
undisputed fact that P.W.8-Dr.Asma Tabassum is the Skin
Specialist in General Hospital, Yalahanka. P.W.8 has deposed
that on 1.08.2014 injured by name P.Devaraj, Smt.Shanthi,
Tangavelu, Saritha, Lakshmamma came to the Yalahanka
Hospita1 accompanied with police constable No.2156-
Gulappa of Yalahanka P.S. with history of assault then she
examined all these injured. During the course of cross-
examination of P.W.8 by the defence nothing is elicited from
her mouth to show that she is not capable to say about the
simple injuries sustained by the injured, who came with
history of assault. It is pertinent to note that in this case as
well as in counter case in S.C.No.578/2017 the very same
doctor P.W.8 examined the injured and issued wound
certificates. During the course of cross-examination of P.W.1
to P.W.6 the accused have taken defence that P.W.1 to P.W.6
have assaulted accused No.1 and caused him injuries. When
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the same doctor P.W.8 examined the injured in both cases it
cannot held that she was not capable to examine and give her
opinion regarding injuries. The learned Spl.P.P. rightly argued
that there is no hard and fast rule that the Skin Specialist
can not give opinion regarding simple injuries. On the other
hand Skin Specialist is the best doctor to say about the
simple injuries sustained in assault cases. During the course
of cross-examination of P.W.8 nothing is elicited from her
mouth to show that she is incapable to examine the injured
and to give opinion regarding simple injuries. Another
arguments of learned counsel for the accused is that it is
impossible to examine 5 injured within short span of 30
minutes. He submitted that according to P.W.8 she examined
P.W.3-Thangavelu at 12-05 PM and P.W.1-Devaraju at 12-10
PM and examined Shanthi, Saritha and Lakshmamma
between 2-20 PM to 2-35 PM. The learned counsel for
accused argued that it is impossible to examine 5 injured
within 30 minutes. This arguments of learned counsel for the
accused is not acceptable. During the course of cross-
examination of P.W.8 several questions asked her about
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timing of the examination of injured. P.W.8 in her cross-
examination made it clear that the concept of examination of
injured is entirely different from giving treatment to patient. It
is the specific evidence of P.W.8 is that firstly she examined
the injured and thereafter she had given treatment to the
injures. P.W.8 has mentioned in Ex.P.3 to Ex.P.7 the time of
examination of the injured. P.W.8 has not mentioned in
Ex.P.3 to Ex.P.7 duration of treatment. Since P.W.8 has
clearly deposed that she has given the treatment to the
injured after examination. Merely because P.W.8 has
examined 5 injured in the span of 30 to 35 minutes that
cannot be ground to doubt the oral evidence of P.W.8 and
documents Ex.P.3 to Ex.P.7 wound certificates. P.W.8-Doctor
who examined injures P.Devaraj (P.W.1), Smt.Shanthi (P.W.5),
Thangavelu (P.W.3), Saritha, Smt.Lakshmamma (P.W.6) has
clearly deposed that regarding the simple injuries sustained
by these injured. The oral evidence of P.W.1, P.W.3, P.W.5,
P.W.6 who are all injured corroborates with the oral evidence
of P.W.8 doctor. The oral evidence of P.W.1 to P.W.6 about the
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injuries supported by P.W.8 doctor who has examined the
injured and given treatment to them.
34. The learned counsel for the accused argued that
non examination of the independent eye witnesses is fatal to
the case of the prosecution. He argued that independent
witness P.W.7 has turned hostile to the case of the
prosecution. No other independent witnesses cited in the
charge sheet and examined on the side of the prosecution. He
argued that P.W.1 to P.W.6 are all relatives and members of
same family hence their oral evidence is not reliable. No
doubt in this case the Investigation Officer/P.W.10 has not
recorded statement of any independent eye witnesses and
also not cited in the charge sheet. It all comes under the
defective investigation. It is now settled principle of law is that
the defect in investigation cannot be ground to disbelieve the
version of witnesses who have supported the case of the
prosecution. It is not in dispute that P.W.1 to P.W.6 are all
members of same family. Merely because P.W.1 to P.W.6 are
relatives their evidence cannot be discarded on that ground. It
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is settled principle of law is that the evidence of close relative
witnesses shall be scrutinized very carefully.
35. There is no dispute that there are certain minor
discrepancies in the evidence of P.W.1 to P.W.6 with regarding
to the first incident and second incident occurred on
01.08.2014, in my opinion the discrepancies did not amount
to contradictions which go to the root of the case of the
prosecution. P.W.1 to P.W.6 have all deposed regarding the
first incident by stating that when P.W.1 was inside the house
he heard the sound and came out side at that time he found
accused No.1 was damaging the wall of the house and when
P.W.1 questioned about the same at that time the accused
No.1 picked up quarrel with P.W.1 and abused him, assaulted
him, kicked him and caused injuries. P.W.2 to P.W.6 have
clearly deposed that by hearing quarrel sound, they came out
from the house and went to the place of incident i.e. near the
newly constructed house of P.W.2 Venugopal and brought
P.W.1 injured to the house. It is the evidence of P.W.1 to P.W.6
is that when they brought P.W.1 to the house of P.W.1 at that
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time accused No.1 along with accused No.2 to accused No.6
are all came near their house and by break opening the door
of the house by smashing the door with stone and damaging
the door trespassed into the house and assaulted them with
wooden clubs. P.W.1 to P.W.6 have identified M.O.1 and
M.O.2 bamboo sticks used by the accused in order to assault
them. P.W.1 to P.W.6 are all identified M.O.3 size stone used
by the accused persons in order to break the door of the
house. P.W.1 to P.W.6 have also identified M.O.4 wooden
piece by deposing that M.O.4 is the door piece. The learned
counsel for accused much argued that P.W.1 to P.W.4 have
admitted that the material object like M.O.1 and M.O.2
bamboo stick and M.O.3 size stone are easily available in the
construction site. No doubt these witnesses have deposed
that such type of wooden stick and wooden piece and stone
are available in other places also does not mean that accused
persons are not used M.O.1 and M.O.2 for commission of the
offences. P.W.1 to P.W.6 who identified M.O.1 and M.O.2 have
clearly deposed that M.O.1 and M.O.2 were the same material
objects which were used by the accused for commission of the
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offences. P.W.1 to P.W.6 who have identified M.O.3 stone have
clearly deposed that M.O.4 stone was used by the accused in
order to break the door of their house. The learned counsel
for the accused argued that M.O.4 wooden piece which is
claimed to be piece of broken door does not match the piece
of normal door. This argument of the learned counsel for the
accused is not acceptable. M.O.4 wooden piece containing 4
pieces merely because there is difference in size it does not
mean that these M.O.4 are not piece of the door. P.W.1 to
P.W.6 who are the eye witnesses as well as victims are the
best witnesses to say about the material objects M.O.1 to
M.O.4 have clearly deposed that M.O.1 to M.O.3 are the
material objects which used by the accused for commission of
offences and M.O.4 is the wooden piece of the damaged door.
The proof that mathematical precesion is not possible. The
standard of proof is beyond all reasonable doubt and not of
absolute proof. Minor discrepancies will not discredit the
evidence of injured and eye witnesses. P.W.1, P.W.3, P.W.5,
P.W.6 who are all injured witnesses have clearly deposed that
they have sustained injuries due to assault made by the
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accused. Their oral evidence is also corroborates with the oral
evidence of the P.W.8-Doctor and wound certificate which is
marked at Ex.P.3 to Ex.P.7. From the oral evidence of P.W.1 to
P.W.6, it is established that when P.W.1 by hearing the
smashing sound went near the newly constructed house of
his brother P.W.2, at that time the accused No.1 picked up
quarrel with him and assaulted him and kicked him and
caused him injuries and when P.W.1 to P.W.6 and C.W.7
brought P.W.1 to their house, then accused No.1 forming an
unlawful assembly with accused No.2 to 6 with common
object came near the house of P.W.1 and the accused persons
by damaging the door and windows of the house of P.W.1
criminally trespassed into the house of P.W.1 and assaulted
P.W.1 to P.W.6 and C.W.7 with wooden clubs and caused
them injuries. The oral evidence of P.W.1 to P.W.6 clearly
shows that the accused persons abused P.W.1 to P.W.6 in
filthy language. There is clear evidence on the side of
prosecution to show that the accused persons have
committed offences punishable under Sections 143, 144, 147,
148, 448, 504, 323, 324, 427 r/w 149 of I.P.C.
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36. With regarding to offences u/s. 3(1)(x), 3(1)(xi) of
The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act is concerned the burden of proof his strictly on
the prosecution to establish that there was commission of
such offences and allegations that the accused by using
derogatory expressions with reference to the P.W.1 to P.W.6 in
public view insulted and humiliated them. In this case of
P.W.1 has deposed that when the went near the newly
constructed house of P.W.2 at that time of accused No.1
damaging the wall with hammer. On questioning the same,
accused No.1 abused him "ವಡಡ ನನನ ಮಗನಬ" P.W.1 has deposed
regarding the abusive language used by the accused No.1
only in the place of first incident. P.W.1 has not deposed
anything about whether accused persons have abused him
and P.W.2 to P.W.6 while the accused persons criminally
trespassed into their house. P.W.2 has deposed that when
P.W.1 asked accused No.1 about damaging the wall of the
house with hammer at that time accused No.1 abused P.W.1
as "ವಡಡ ನನನ ಮಗನಬ." P.W.2 has deposed that the accused
persons trespassing into their house and assaulted them at
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that time also the accused persons abused them as " ವಡಡ ನನನ
ಮಕಕಳಮ." P.W.3 has deposed that when he went to the place of
first incident at that time accused persons abused him and
his brother in filthy language and in the name of caste as
"ಸಬಳ ನನನ ಮಕಕಳ ಮತಮತ ವಡಡ ನನನ ಮಕಕಳ" thereafter, when the accused
persons trespassed into their house. P.W.3 has not deposed
anything about whether the accused persons abused them in
the name of caste when the second incident was occurred
inside the house. P.W.4 has deposed that in the first incident
near the newly constructed house accused No.1 abused P.W.1
in the name of caste as " ವಡಡ ಜತ ನನನ ಮಕಕಳ ಮತಮತ ಕಮಮ ಜತ ನನನ
ಮಕಕಳ." P.W.4 has deposed that in the second incident that is
inside their house also the accused abused them as " ವಡಡ ಜತ
ನನನ ಮಕಕಳ, ಕಮಮ ಜತ ನನನ ಮಕಕಳ ಮತಮತ ಸಬಳ ನನನ ಮಕಕಳ." P.W.5 has
deposed that in the first incident the accused No.1 abused as
"ವಡಡ ನನನ ಮಕಕಳ, ಸಬಳ ನನನ ಮಕಕಳ." P.W.5 has deposed that anything
about the abusive language used by the accused in the
second incident that is inside their house. P.W.6 has not
deposed anything about the abusive language used by the
accused in the first incident and second incident. The learned
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counsel for the accused argued that so far as the first
incident is concerned it is the case of the prosecution is that
P.W.1 alone went to that place on hearing the sound of
damaging the wall. He argued that P.W.2 to P.W.6 were not
present when the quarrell taken place between the accused
No.1 and P.W.1. He submitted that the alleged insult is not
within the public view. Hence provision under Sec.3(1)(x) of
The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act is not attracts to this case. He further argued
that there is no ingredients to attract Section 3(1)(x), 3(1)(xi)
of The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act. The learned Special Public Prosecutor
submitted that PW.1 to PW.6 have deposed regarding the
derogatory words used by the accused in order to abuse PW.1
to PW.6 in the name of caste. She argued that there is
sufficient material to attract the provisions of Section 3(1)(x),
3(1)(xi) of The Scheduled Caste & Scheduled Tribe (Prevention
of Atrocities) Act.
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37. No doubt this court while discussing regarding the
caste of PW.1 to PW.6 held that PW.1 to PW.6 are belongs to
Scheduled Caste. It is also held that accused No.4 is also
belongs to Scheduled Caste. Since, accused No.4 is also
belongs to Scheduled Caste, the provision u/s 3(1)(x), 3(1)(xi)
of The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act is not applicable to accused No.4. Regarding
the evidence on this point of caste based attack, the learned
counsel for the accused rightly argued that there is no
evidence on the side of the prosecution to show that the
accused persons abused PW.1 in the name of caste within
public view. In this case, except PW.1 to PW.6 who are all
members of the same family, the prosecution has not
examined any independent witnesses who are not relatives of
PW.1 to PW.6 and independent witnesses to the incident. The
first incident was occurred near the newly constructed house
of PW.2. Second incident was occurred inside the house of
PW.1. There is no evidence on the prosecution to show that
the accused persons abused PW.1 to PW.6 in the name of
caste within public view. Derogatory words said to have been
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used by the accused to abuse PW.1 to PW.6 is also not
corroborating in the oral evidence of PW.1 to PW.6. PW.1 to
PW.6 have clearly admitted that PW.1 alone went to the place
of the first incident. Hence, there is very less chance to hear
the abusive language used by the accused No.1 to abuse
PW.1. With regarding to abusive language used by the
accused in 2nd incident is concerned there is no corroboration
in the oral evidence of PW.1 to PW.6. With regarding to Sec.
3(1)(x), 3(1)(xi) of The Scheduled Caste & Scheduled Tribe
(Prevention of Atrocities) Act and Sec. 354 r/w 149 of IPC., is
concerned, there is no cogent evidence on the side of the
prosecution to show that the accused persons outraged the
modesty of CW.6, CW.7, CW.9. In this case, said CW.6 is
examined as PW.5, CW.9 is examined as PW.6. PW.5 and
PW.6 have not clearly deposed regarding who was pulled
them and assaulted them. No doubt, on perusal of the oral
evidence of PW.5 and PW.6 it would go to show that they have
sustained injuries at the hands of the accused. There is no
cogent evidence on the side of the prosecution to show that
the accused persons outraged the modesty of PW.5 and PW.6.
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There is no cogent evidence on the side of the prosecution to
show that the accused have committed the offences
punishable u/s 3(1)(x), 3(1)(xi) of The Scheduled Caste &
Scheduled Tribe (Prevention of Atrocities) Act and u/s 354
r/w 149 of IPC. On perusal of oral evidence of PW.1 to PW.6,
it is clear that the ingredients of offence u/s 3(1)(x), 3(1)(xi) of
The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act and u/s 354 of IPC., are not attracted. The
derogatory words as deposed by PW.1 to PW.6 allegedly used
by the accused to abuse them in the name of caste is not
corroborating with each other. Admittedly the quarrel taken
place with history of dispute regarding the setback area in
between the house of PW.2 and accused No.1 and 2. Except
PW.1 to PW.6 no other independent witnesses have examined
on the side of the prosecution to show that the accused
persons abused PW.1 to PW.6 in the name of caste. Under
such circumstances, it cannot be said that alleged incident
has taken place in public view as no other person other than
PW.1 to PW.6 and unconcerned to the event was present and
have deposed about it. There is also no clear evidence on the
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side of the prosecution to show that the accused persons
outraged the modesty of PW.5, PW.6 and CW.7, I constrained
to hold that there is no cogent evidence on the side of the
prosecution to show that the accused persons have
committed the offence u/s 3(1)(x), 3(1)(xi) of The Scheduled
Caste & Scheduled Tribe (Prevention of Atrocities) Act and
u/s 354 r/w 149 of IPC.
38. The oral evidence of PW.1 to PW.6 are consistent
with regard to the overt act of the accused persons in forming
unlawful assembly and armed with deadly weapons like
wooden clubs, stones, committed rioting by damaging the
door of house of PW.1 and criminally trespassed into the
house of PW.1 and assaulted PW.1 to PW.6 and CW.7 with
stick and with hands and caused them simple injuries and
also abused PW.1 to PW.6 in filthy language. PW.1 to PW.6
have clearly deposed regarding the first incident as well as the
second incident. PW.1 went near the newly constructed
house of PW.2 at that time he found accused No.1 damaging
the wall of the house with hammer; on questioning the same,
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accused No.1 abused PW.1 and assaulted him then PW.2 to
PW.6 and CW.7 were all brought PW.1 to his house. In the
meanwhile, the accused No.1 along with accused No.2 to 6
formed an unlawful assembly and came near the house of
PW.1 and the accused persons damaged the door and
windows of the house of PW.1 and criminally trespassed into
the house of PW.1 and assaulted PW.1 to PW.6 with wooden
clubs and with hands and caused them injuries and abused
them in filthy language. The oral evidence of PW.1 to PW.6
with regard to the offences u/s 143, 144, 147, 148, 448, 504,
323, 324, 427 r/w 149 of IPC., is concerned there is clear and
cogent evidence on the side of the prosecution to show that
on 1.8.2014 at about 11 AM the accused persons formed an
unlawful assembly with common object in order to assault
PW.1 to PW.6 and the accused persons armed with deadly
weapons like stone and wooden club criminally trespassed
into the house of PW.1 by damaging the door with stone and
with club and assaulted PW.1 to PW.6 and caused them
simple injuries and also abused them in filthy language. The
oral evidence of PW.1 to PW.6 are corroborating with the oral
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evidence of PW.8 Doctor who has issued wound certificate as
per Ex.P3 to P7 and deposed that on examination of PW.1 P.
Devaraju, PW.5 Smt. Shantha, PW.3 Thangavelu, PW.6
Lakshmamma and CW.7 Saritha, she found simple injuries.
PW.1 to PW.6 are all eye witnesses and victims who suffered
the injuries on the hands of the accused. The learned
counsel for the accused vehemently argued that PW.10
Investigation Officer who received the DCP order as per
Ex.P16 conducted investigation without proper authority from
1.8.2014. This argument of the learned counsel for the
accused is not acceptable. PW.10 was the Assistant
Commissioner of Police, Yelahanka Sub-Division who was
proper authority to conduct the investigation. Merely
because PW.10 received the DCP Order subsequently that
cannot vitiate the investigation conducted by him till the
receipt of the DCP order. The Assistant Commissioner of
Police is the equivalent cadre of Dy.S.P., no fault can found
on the side of the PW.10 in conducting further investigation.
The learned counsel for the accused argued that in Ex.P3 to
P7 wound certificate, the history of assault is mentioned that
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wooden stick, bricks, stone, sickle, iron rod. He argued that
in this case, the Investigation Officer has not seized sickle,
iron rod, bricks, hence, it is fatal to the case of the
prosecution. This argument of the learned counsel for the
accused is not acceptable because PW.8 Doctor who issued
Ex.P3 to P7 wound certificate is not the eye witness. PW.1 to
PW.6 who are the best witnesses to say about the incident
have clearly deposed that the accused persons by using the
stone and wooden club by breaking open the door and
damaged the windows and criminally trespassed into the
house and assaulted them with wooden clubs. PW.1 to PW.6
are all identified M.O.1 and M.O.2 bamboo sticks by stating
that these material objects were used by the accused to
assault them. PW.1 to PW.6 have identified M.O.3 stone by
stating that stone was used by the accused in order to
damage the door of the house. PW.1 to PW.6 have identified
M.O.4 wooden pieces by stating that M.O.4 is the wooden
piece of damaged door. Under such circumstances merely
because the Investigation Officer has not seized the material
mentioned in Ex.P3 to P7 wound certificate and that cannot
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be ground to doubt the oral evidence of PW.1 to PW.6. I have
also discussed about the oral evidence of PW.8 doctor who
has issued Ex.P3 to P7 wound certificate and deposed about
the simple injuries sustained by PW.1 P. Devaraju, PW.5
Shantha, PW.3 Thangavelu, CW.7 Saritha, PW.6
Lakshmamma. The another argument of the learned counsel
for the accused is that accused No.1 has filed first complaint
and based on the same, the case in Crime No. 217/14
registered against PW.1 to PW.6 and thereafter on the basis of
the complaint lodged by PW.1 the present case in crime
No.218/14 registered against he accused. The learned
counsel for the accused argued that the investigate should
have been conducted only one Investigation Officer and not
by two Investigation Officers. He relied upon the decision of
Hon'ble Supreme Court reported in (2001) 6 Supreme Court
Cases 181 in T.T. Antony vs. State of Kerala and others. I
have gone through this cited decision. There is no dispute
regarding the principles laid down by the Hon'ble Supreme
Court in the cited decision. Admittedly, the present case
registered in Crime No.218/14 which registered for the
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offences invoking Sec. 3(1)(x), 3(1)(xi) of The Scheduled Caste
& Scheduled Tribe (Prevention of Atrocities) Act which has to
be investigated by the Investigation Officer rank of Dy.S.P., or
above. Another case in Crime no.217/2014 registered only
for IPC sections which can be investigated by PSI. PW.10 ACP
is Investigation Officer of the present case. Since these two
cases were registered based on the separate complaint, no
fault can be found in investigating these two cases by two
Investigation Officers. The arguments of the learned counsel
for the accused is that this case which came to be registered
subsequently shall be investigated by the same Investigation
Officer cannot be accepted. It is now settled principle of law
is that defect in the investigation cannot be ground to give
benefit to the accused. In the present case, PW.1 to PW.6
who are all eye witnesses and injured witnesses have
supported the case of the prosecution and have clearly
deposed about the overt act of the accused in commission of
the offences. The oral evidence of PW.1 to PW.6 also
corroborate with the oral evidence of PW.8 Doctor regarding
the simple injuries sustained by PW.1, PW.3, PW.5, PW.6 who
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are all injured and eye witnesses. The oral evidence of PW.1
to 6 is also corroborating with the oral evidence of PW.10
Investigation Officer who conducted the investigation and
PW.12 PSI who registered the case. There is no delay in
lodging the complaint by PW.1. On the date of incident i.e.,
on 1.8.2014 itself PW.1 has lodged the complaint as per Ex.P1
and based on the same, PW.12 registered the case in Crime
No.218/14 and on the same day, Ex.P19 FIR was carried by
PW.1 to the Home office of the Judge. There is absolutely no
delay in lodging the complaint registering the case and
sending the FIR to the court. PW.1 in his Ex.P1 first
information statement it is mentioned the name of all the
accused. No doubt in Ex.P1 complaint it is also mentioned
that the accused No.1 to 6 also accompanied with 8 to 10
other people. PW.1 to PW.6 have clearly deposed that the
accused No.1 to 6 formed an unlawful assembly and
committed the rioting and criminal trespass into the house of
PW.1 and assaulted PW.1 to PW.6 and abused them in filthy
language. On perusal of the oral evidence of PW.1 to PW.6 all
these witnesses have clearly deposed regarding the overt act
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of the accused in commission of the offences. PW.1 to PW.6
have clearly deposed that the accused persons with stone and
wooden stick damaged the door and windows of the house of
PW.1 and caused loss. The prosecution has successfully
proved that the accused persons have committed the offences
punishable u/s 143, 144, 147, 148, 448, 504, 323, 324, 427
r/w 149 of IPC. The prosecution has failed to prove that the
accused have committed the offences punishable u/s 3(1)(x),
3(1)(xi) of The Scheduled Caste & Scheduled Tribe (Prevention
of Atrocities) Act and u/s 354 r/w 149 of IPC. Thus, on
overall consideration of evidence on record, after separating
the chop from the grain it is noticed that the oral evidence of
PW.1 to PW.6 which is supported by the medical evidence of
PW.8 and he evidence of PW.10 to PW.12 are consistent and
cogent with regarding to the role played by the accused No.1
to 6 for commission of the offences punishable u/s 143, 144,
147, 148, 448, 504, 323, 324, 427 r/w 149 of IPC. However,
the prosecution has failed to prove that the accused have
committed the offences punishable u/s 3(1)(x), 3(1)(xi) of The
Scheduled Caste & Scheduled Tribe (Prevention of Atrocities)
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Act and u/s 354 r/w 149 of IPC and u/s 354 r/w 149 of IPC.
Accordingly, I answered point No.1, 7, 9 in the negative. I
answered Point No.2, 3, 4, 5, 6, 8 in the affirmative.
39. Point No.10:- In view of my findings on point no.1,
7, 9 that prosecution has failed to prove the case against
accused for the punishable punishable u/s 3(1)(x), 3(1)(xi) of
The Scheduled Caste & Scheduled Tribe (Prevention of
Atrocities) Act and u/s 354 r/w 149 of IPC. In view of my
findings on Point No.2, 3, 4, 5, 6, 8, the prosecution has
successfully proved that the accused No.1 to 6 have
committed the offences punishable u/s 143, 144, 147, 148,
448, 504, 323, 324, 427 r/w 149 of IPC. Hence, I proceed to
pass the following
O R DE R
Exercising jurisdiction conferred upon me
under Section 235(1) of Cr.P.C., the Accused No.1
to 6 have not guilty of committing offences
punishable under Sections 3(1)(x) 3(1)(xi) of The
Scheduled Castes & Scheduled Tribes (Prevention
73
Spl.C. No. 497/2014
of Atrocities) Act and u/s 354 r/w 149 of IPC and
accordingly they are acquitted of the said offences.
Exercising jurisdiction conferred upon me
under Section 235(2) of Cr.P.C., I hereby find the
Accused No.1 to 6 guilty of committing offences
punishable u/s 143, 144, 147, 148, 448, 504,
323, 324, 427 r/w 149 of IPC. Accordingly they
are convicted for the said offences.
The properties M.O.1 to 4 being worthless
are ordered to be destroyed after completion of
appeal period.
The case is posted for hearing on quantum
of sentence to be imposed on the accused.
(Dictated to the Judgment Writer, transcribed by him, some of
the paragraphs are directly inserted into the computer,
transcript corrected, signed and then pronounced by me in
open Court on this the 18th day of January, 2020.)
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bengaluru.
74
Spl.C. No. 497/2014
ORDER REGARDING SENTENCE DATED 18.01.2020
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 6 for
the offences punishable u/s 143, 144, 147, 148, 448, 504,
323, 324, 427 r/w 149 of IPC which are proved against them.
The learned counsel for the accused submitted that the
accused are innocent of the offences alleged against them. In
order to counter blast the case registered against the
complainant and others, the complainant has filed false
complaint against the accused. He submitted that 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 of
imprisonment and fine.
75
Spl.C. No. 497/2014
Considering the nature of the injuries sustained by
PW.1, PW.3, PW.5, PW.6 due to assault and by considering
the manner in which the quarrel taken place between the
accused and PW.1 to PW.6, and as the accused persons
criminally trespassed into the house of the PW.1 complainant
by damaging the door of the house, I am of the view that the
accused/convicts are not entitled any benefit u/s 3 and 4 of
the 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 to 6 are all residents of Bengaluru. It
is not the case of the prosecution is that these accused/
convicts are involved in any other case or convicted in any
other cases. This is the mitigating circumstance to be
considered by this court while imposing sentence. It can be
seen that due to assault made by accused PW.1, PW.3, PW.5,
PW.6 have sustained simple injuries. Accused persons not
only assaulted PW.1 near newly constructed house of PW.2,
but also by forming an unlawful assembly with deadly
weapons like stone, wooden clubs, criminally trespassed into
76
Spl.C. No. 497/2014
the house of PW.1 and assaulted PW.1 to PW.6 and caused
them injuries. This is the aggravated circumstance to be
considered.
Considering the facts of the case and considering the
nature of injuries sustained by PW.1 to 6, 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 6 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 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 144 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 147 r/w 149 of IPC.
77Spl.C. No. 497/2014 The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 148 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 448 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 427 r/w 149 of IPC.
The convicts/accused No.1 to 6 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.1000/- each in default to pay fine they shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 6 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 they shall further undergo simple imprisonment for 15 days.
78Spl.C. No. 497/2014 The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 504 r/w 149 of IPC.
The substantive sentence shall run concurrently.
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 18th day of January, 2020.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge and Special Judge, Bengaluru.
A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : P.Devaraju
P.W.2 : Venugopal
P.W.3 : Tangavelu
P.W.4 : Anand
P.W.5 : Shanthamma
P.W.6 : Lakshmamma
P.W.7 : G.Vishwanath
P.W.8 : Dr.Asma Tabassum
P.W.9 : Mahendra
P.W.10 : H.A.Theertharaju
P.W.11 : Anand Naik
P.W.12 : M.V.Ramakrishna Reddy
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Spl.C. No. 497/2014
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of P.W.1
Ex.P.1(b) : Signature of P.W.12
Ex.P. 2 : Mahazar
Ex.P.2(a) : Signature of P.W.2
Ex.P.2(b) : Signature of P.W.7
Ex.P.2(c) : Signature of P.W.10
Ex.P3 : Wound certificate
Ex.P.3(a) : Signature of P.W.8
Ex.P.3(b) : Signature of P.W.10
Ex.P.4 : Wound certificate
Ex.P.4(a) : Signature of P.W.8
Ex.P.4(b) : Signature of P.W.10
Ex.P.5 : Wound certificate
Ex.P.5(a) : Signature of P.W.8
Ex.P.5(b) : Signature of P.W.10
Ex.P.6 : Wound certificate
Ex.P.6(a) : Signature of P.W.8
Ex.P.6(b) : Signature of P.W.10
Ex.P.7 : Wound certificate
Ex.P.7(a) : Signature of P.W.8
Ex.P.7(b) : Signature of P.W.10
Ex.P.8 : Report to ACP
Ex.P.8(a) : Signature of P.W.9
Ex.P.8(b) : Signature of P.W.10
Ex.P.9 : Report of Deputy Tahasildar
Ex.P.10 : Report of R.I., Village Accountant
Ex.P11 : Mahazar
Ex.P.12 : Report of PW.9 Tahasildar regarding
caste of PW.1
Ex.P.12(a) : Signature of P.W.9
Ex.P.12(b) : Signature of P.W.10
Ex.P.13 to 15 : Report of Village Accountant, Deputy Tahasildar and Tahasildar Ex.P.16 : Order of DCP Ex.P.16(a) : Signature of P.W.10 80 Spl.C. No. 497/2014 Ex.P.17 : P.F. Ex.P.17(a) & (b) : Signature of P.W.10 Ex.P.18 : Passport Ex.P.19 : F.I.R.
Ex.P.19(a) : Signature of P.W.12
3. WITNESSES EXAMINED FOR THE DEFENCE:
D.W.1 : Vijay Kumar
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D.1 :Copy of application
Ex.D.2 : Copy of face book profile
Ex.D.3 : Copy of Admission Register Extract
Ex.D.4 to 8 : Endorsements given by Under
Secretary under RTI
Ex.D.9 to D11 : Certified copies of the document under RTI
5. LIST OF MATERIAL OBJECTS:
M.O.1 & 2 : Bamboo Clubs
M.O.3 : Size stone
M.O.4 : Wooden piece
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
81Spl.C. No. 497/2014 ORDER REGARDING SENTENCE DATED 18.01.2020 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 6 for the offences punishable u/s 143, 144, 147, 148, 448, 504, 323, 324, 427 r/w 149 of IPC which are proved against them.
The learned counsel for the accused submitted that the accused are innocent of the offences alleged against them. In order to counter blast the case registered against the complainant and others, the complainant has filed false complaint against the accused. He submitted that 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 of imprisonment and fine.
Considering the nature of the injuries sustained by PW.1, PW.3, PW.5, PW.6 due to assault and by considering the manner in which the quarrel taken place between the accused and PW.1 to PW.6, and as the accused persons criminally trespassed into the house of the PW.1 complainant by damaging the door of the house, I am of the view that the accused/convicts are not entitled any benefit u/s 3 and 4 of the 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 to 6 are all residents of Bengaluru. It is not the case of the prosecution is that these accused/ convicts are involved in any other case or convicted in any other cases. This is the mitigating circumstance to be considered by this court while imposing sentence. It can be seen that due to assault made by accused PW.1, PW.3, PW.5, PW.6 have sustained simple injuries. Accused persons not 82 Spl.C. No. 497/2014 only assaulted PW.1 near newly constructed house of PW.2, but also by forming an unlawful assembly with deadly weapons like stone, wooden clubs, criminally trespassed into the house of PW.1 and assaulted PW.1 to PW.6 and caused them injuries. This is the aggravated circumstance to be considered.
Considering the facts of the case and considering the nature of injuries sustained by PW.1 to 6, 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 6 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 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 144 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 147 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 148 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 448 r/w 149 of IPC.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for three months for the offence punishable u/s 427 r/w 149 of IPC.83
Spl.C. No. 497/2014 The convicts/accused No.1 to 6 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.1000/- each in default to pay fine they shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 6 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 they shall further undergo simple imprisonment for 15 days.
The convicts/accused No.1 to 6 are sentenced to undergo simple imprisonment for one month for the offence punishable u/s 504 r/w 149 of IPC.
The substantive sentence shall run concurrently.
Office is directed to furnish the copy of the judgment to the convicts as required u/s 363(1) of Cr.P.C.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge and Special Judge, Bengaluru.
84
Spl.C. No. 497/2014
Judgment pronounced in the
open court vide separate detailed O R DE R Exercising jurisdiction conferred upon me under Section 235(1) of Cr.P.C., the Accused No.1 to 6 have not guilty of committing offences punishable under Sections 3(1)(x) 3(1)
(xi) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act and u/s 354 r/w 149 of IPC and accordingly they are acquitted of the said offences.
Exercising jurisdiction conferred upon me under Section 235(2) of Cr.P.C., I hereby find the Accused No.1 to 6 guilty of committing offences punishable u/s 143, 144, 147, 148, 448, 504, 323, 324, 427 r/w 149 of IPC. Accordingly they are convicted for the said offences.
The properties M.O.1 to 4 being worthless are ordered to be destroyed after completion of appeal period.
The case is posted for hearing on quantum of sentence to be imposed on the accused.
LXX A.C.C & S.J. & Spl.J, Bengaluru.
85 Spl.C. No. 497/2014 The learned counsel for the accused/convicts filed application u/s 389(3) of Cr.P.C., praying to suspend the sentence enabling them to prefer appeal against the judgment and orders passed by this court.
I heard on the side of the learned counsel for the accused/convicts and learned Special Public Prosecutor.
The sentence imposed on the accused is less than 3 years, opportunity to be given to the accused to prefer appeal against the judgment and order passed by this court. Hence, in the interest of justice, the application filed by the accused u/s 389(3) of Cr.P.C., is allowed and order of sentence is suspend till appeal period subject to the condition that
1) The accused No.1 to 6/ convicts shall execute personal bond for Rs.1,00,000/- each and shall furnish one surety for likesum to the satisfaction of this court.
2) They shall appear before the court to receive the sentence whenever directed to do so.
3) They shall deposit fine amount.
4) They shall not involve in any other criminal cases.
LXX A.C.C & S.J. & Spl.J, Bengaluru.