Karnataka High Court
Lokesh S/O Sheshagiri vs State Of Karnataka on 11 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.A.No.1347/2010
BETWEEN:
1. LOKESH
S/O SHESHAGIRI
AGED 28 YEARS
OCC:COOLIE
R/AT. REHAMATH MOHALLA
NEAR BRIDGE,
HUNSUR TOWN
MYSORE DISTRICT.
2. KRISHNA @ KITTI
S/O RANGAIAH
AGED 25 YEARS,
OCC:COOLIE
R/AT. LALBUN STREET
HUNSUR TOWN,
MYSORE DISTRICT.
...APPELLANTS
(BY SRI L S CHIKKANAGOUDAR, ADVOCATE)
AND:
STATE OF KARNATAKA BY
HUNSUR TOWN POLICE
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
2
BANGALORE- 560 001.
...RESPONDENT
(BY SRI NASRULLA KHAN, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE DATED:12/20.11.2010
PASSED BY THE VI ADDITIONAL S.J. & SPECIAL COURT
UNDER SC & ST (POA) ACT, 1989, MYSORE IN SPECIAL C.
No.72/2008-CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 341,
323, 325 R/W 34 OF IPC. THE APPELLANTS/ACCUSED
ARE SENTENCED TO UNDERGO R.I. FOR TWO AND HALF
YEARS AND PAY A FINE OF Rs.2,000/- EACH, IN DEFAULT
OF PAYMENT OF FINE THEY SHALL UNDER S.I. FOR
THREE MONTHS -FOR THE OFFENCE PUNISHABLE
UNDER SECTION 325 READ WITH 34 OF IPC; ACCUSED TO
UNDERGO R.I. FOR THREE MONTHS-FOR THE OFFENCE
PUNISHABLE UNDER SECTION 323 READ WITH 34 OF IPC
AND ALSO TO UNDERGO R.I. FOR FIFTEEN DAYS-FOR
THE OFFENCE PUNISHABLE UNDER SECTION 341 READ
WITH 34 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal is directed against the judgment of conviction and sentence passed by the learned VI Additional District & Sessions Judge and Special Judge Special Court under SC & ST (POA)Act, Mysore, in Special Case No.72/2008 on 12/20.11.2010, wherein, 3 the learned Special Judge found the accused guilty of the offence punishable under Sections 341, 323, 325 R/W Section 34 IPC and sentenced them to undergo RI for 2 ½ years and also pay a fine of Rs.2,000/- each, in default of payment of fine, SI for three months for the offence punishable under Section 325 R/W Section 34 IPC; to undergo RI for three months for the offence punishable under Section 323 R/W Section 34 and to undergo RI for 15 days for the offence punishable under Section 341 R/W Section 34 IPC and all the sentences shall run concurrently. Further, accused were persons acquitted for the offences punishable under Sections 3(1)(x) of SC & ST (POA) Act, 1989.
2. Accused No.1- Lokesh, S/o. Sheshagiri and accused No.2- Krishna @ Kitti, S/o. Rangaiah have preferred the appeal.
3. The substance of the complaint is, that on 17.7.2008, between 11.10 p.m. to 11.45 p.m., 4 statement of the injured, Palaksha, 35 years, S/o. Javaraiah, Auto driver, Sadashivanakoppalu, Hunsur Town, was recorded by the Head Constable at General Hospital, Hunsur. It is stated that when the complainant who is an auto driver was returning from KSRTC bus stand at about 10.00 p.m, he saw that one Lokesha @ Loki, S/o. Shashi, resident of Rahamath mohalla, was hitting Mooga, S/o Huchaiah of the complainant's locality near Venkateswara Wine Shop. The complainant intervenes and tells the accused that Mooga was a good person and why he was hitting, the latter answered that, Mooga had stolen the scooter key belonging to accused and continued beating. The complainant advised him not to beat. The accused got angered. In the process, he and another person who was with him lifted complainant and threw him, because of which, complainant suffered injuries to right hand elbow and sustained a fracture and also suffered injuries on forehead and left ear. Ramakrishna and 5 Ramesh who are at the spot rescued and took the complainant to the hospital.
4. On the strength of said complaint, case was registered in Crime No.144/2008 as per Ex.P3, FIR marked during trial. As formalities, police conducted spot mahazar on 18th July 2008 as per Ex.P4. The matter was investigated and final report came to be filed against accused persons for the offence punishable under Sections 341,323, 325 R/W Section 34 IPC and under Section 3(1)(x) of SC & ST (POA) Act and there is no material change in the facts regarding the offence.
5. After hearing the accused, learned Special Judge found substantial ground for framing charge against them, framed charges for the offence punishable under Sections 341, 323, 325, and under Sections 3(1)(x) of SC & ST (POA) Act. Accused pleaded not guilty and came to be tried.
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6. Learned Special Judge was accommodated with oral evidence of PWs 1 to 14 including the evidence of complainant and documentary evidence of Exs. P1 to P9 (b) including complaint.
7. Among 14 witnesses examined by the prosecution, PW1 is complainant Palaksha. PW2- Ramesha, PW5-Ramakrishna, PW8-Anil Kumar and PW11-Thopaiah are cited as eye witnesses. PW6-Dr. M.R. Udayakumar has treated the complainant on the date of incident. PW3-C.M.Madappa, PW4-Y.Mudduraj and PW14- Vijayakumar G. Dambala are Police official and IOs. PW7-Ashoka witness for spot mahazar. PW12-P.Gangadhara, is the Assistant Teacher of Deaf and Dumb School, Mysore and PW13-Puittamma is the mother of PW11.
8. PW1-Palaksha, the complainant was examined on 15.12.2009. In his oral evidence, he states that he belongs to Madiga community which comes under 7 Scheduled Caste. Incident took place about one year two months back at Hunsur town when complainant who is an auto driver by profession was returning from Hunsur bus stand after completing job at 10 p.m., and when he was moving on the old bye pass road near Venkateswara Wine shop, he saw that Topaiah @ Mooga was being assaulted and hit by the accused. The complainant stopped his vehicle and asked the accused as to why they were hitting Topaiah @ mooga. He got wild and questioned about capacity of the complainant to intervene in the matter, abused him in the name of caste as 'Holeyasoolemakla, soolemagane, holeyamagane", picked and threw him and his right arm was fractured on account of his hit. PW8 shifted the complainant to the hospital. He was admitted to Hunsur Town Hospital as inpatient. Before living hospital, police have visited, his statement was recorded and he identifies the same as Ex.P1.
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He was cross examined and his version in chief examination were suggested to be false. He denies that he is a drunkard. It is elicited from him that nobody came from Venkateswara Wine Shop to save the complainant. It is also elicited that he has not given any further statement to the police apart from the complaint.
9. PW2-Ramesha and PW5-Ramakrishna are eye witnesses. PW2 states that when he was proceeding in Hunsur Old bye pass road, he and Ramakrishna observed that accused were quarelling with PW1- Palaksha in front of Venkateshwara Wine Shop. PW-5 Ramakrishna tells that the incident happened on 17.7.2008 when he was returning home after watching a movie. This witness has seen the accused quarelling with Palaksha complainant and also assaulting Palaksha. Several people assembled, hand of Palaksha was broken he was taken to hospital for treatment. This 9 witness also speaks about spot mahazar and identifies at E.xP4 They are cross examined. No material discrepancies are elicited.
10. PW8-Anil Kumar is an eye witness. His evidence is that he had also gone to watch a movie and was returning home, he saw accused quarelling with Palaksha and Mooga and assaulting Palaksha because of which his arm was broken. It was this witness who took Palaksha to the hospital on scooter. He is cross examined. He denies the suggestions through passing suggestions.
11. The evidence of complainant Palaksha is to the effect that accused at the time of incident literally lifted him and threw him, he suffered injuries and accused persons abused him in the name of caste. The version of complainant is endorsed by PW2-Ramesha. However, he does not know how many persons were 10 there when he went to the spot and he does not know at that time election was going on.
12. PW3-C.M.Madappa is the Head Constable who recorded the statement of the complainant after getting the information of complainant being admitted to the Government hospital Hunsur and thereafter, case being registered in Crime No.144/2008. PW4-Y. Mudduraj is the Sub Inspector of Police. He tells about registering of criminal case, identifies complaint, Ex.P1.
13. PW6-Dr.M.R.Udayakumar is the Doctor who treated the complainant and issued the wound certificate as per Ex.P7.
14. PW7-Ashok is the witness for spot mahazar, Ex.P4. PW8- Anil Kumar is the one who carried the complainant on the scooter of the former to the hospital and also speaks about the assault of the accused on the 11 complainant whose arm was broken because of the act of the accused.
15. PW9-Kumara, is the Cashier of the Bar. He is supposed to be another eye witness having seen the incident. However, he states that he was in the bar and states that he has not made any statement against the accused. He was treated hostile.
16. PW10-Arun Kumar, Tahasildar. He deposes for having issued the caste certificate stating the caste/s of complainant and the accused stating accused being the non member of scheduled caste and complainant is belonging to scheduled caste. The document is marked as Ex.P9.
17. PW11- is Topaiah. This witness is dumb. Thus he was examined with the assistance of one Gangadhar, Assistant Teacher, School for Deaf and Dumb, Mysore. PW11 identifies the accused and tells 12 the Court he was hit and beaten by the accused and he did not know the reason. When the complainant intervened the accused lifted him and dropped. Complainant suffered injuries to his elbow. This witness was slapped. He suffered swelling on cheek.
18. Further, it is to be noted that, Topaiah is the other name of Mooga on whom the attack was made on the date of incident. Accused saw the incident and he questioned the accused persons and accused being enraged over the intervention, literally lifted the complainant and threw him on the floor because of which complainant sustained injuries including fracture.
19. The said teacher P. Gangadhar was examined as PW12 he speaks about what he has done in the form of translation.
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20. PW13-Puttamma is the mother of Mooga. She tells about the capacity of Mooga to speak and mode of communication for him is through gestures. She tells on the date of incident, some one slapped him because he took scooter key. She has been cross examined. She was summoned to police station.
21. PW14-Vijayakumar G Dambala, Dy.SP, Koppal. He has conducted the investigation and submitted the chargesheet.
22. These are the circumstances and evidence that are made available to the learned Special Judge. The learned Special Judge convicted the accused for the offences punishable under Sections 341, 323,325 r/w section 34 IPC and sentenced them as mentioned above.
23. The learned counsel for the appellant Sri. L.S.Chikkanagoudar would submit that small incident is glorified as big incident and accused persons are 14 falsely named in this case. There is absolutely no evidence to find the accused guilty of any of the offences. The witnesses who have told infavour of the prosecution are tutored. Learned counsel would further submit even after the oral evidence, there are no material to find the accused guilty of any of the offence. He further submits that the accused persons came from poor economic background.
24. Learned High Court Government Pleader for respondent refutes the submissions made by learned counsel for appellants. He would submit that the incident is established and its offending nature is proved. There is clear cut evidence on time, place and the date of the incident. Witnesses are natural. Thus, he would submit that there is no occasion to hold the accused to be innocent to set them at liberty.
25. The charge was framed against the accused persons for offence punishable u/s 341, 323, 325 r/w 15 Section 34 IPC and under Sections 3(1)(x) of SC & ST (POA) Act. The evidence of PWs 1, 5, 8 and 11 establish the presence of accused persons 1 and 2 on the date of incident. The presence of Mooga is established through the evidence of complainant and Mooga, Anil Kumar and Ramesh. The injury is established through the evidence of Dr.M.R.Udaykumar from the Government hospital, Hunsur and from the oral evidence of complainant, complaint and evidence of PWs 5,8 and
11. There is no occasion to suspect or disbelieve that accused having assaulted and hitting the complainant. However, Doctor, in his oral evidence has stated that he treated the complainant on 17.7.2008 and issued certificate. The injuries as observed by him at about 10.40 p.m. on the person of complainant are as under:
Injury Nos.1 and 2 mentioned in wound certificate Ex.P7 is:
"1. Swelling and tenderness over the right elbow with dislocation.
16X-ray was taken, opinion of orthopaedic surgeon was taken, and the same is revealed posterior dis location of right elbow. Report from the C.M.O K.R.Hospital, Mysore, was received.
2. Tenderness over the left frontal region."
26. The accused persons were known to the complainant and there is no necessity of identifying and ascertaining the name of the accused, at the same time, regarding the light at the time of incident is not disputed.
27. The allegation against the accused is that they literally lifted the complainant and threw him to the floor. Section 323 of IPC defines grievous hurt and also gives examples of several injuries that are classified as grievous. The same includes the fracture as well. I hold there are materials to find the accused guilty of the 17 offence punishable under Sections 341,323,325 read with Section 34 IPC.
28. Insofar as punishment for Section 323 is concerned, it is necessary to mention that the injuries as charged by the accused is only against the complainant. Thus, the prosecution believes that it was only one person who received the beating and sustained injuries. In the circumstances, the charge ought to have been framed in a separate and distinct manner. But the learned Special Judge has included two Sections i.e. 323 and 325 under one charge which is not proper. However, the same does not cause prejudice to the accused or vitiate the proceedings. Regard being had to the fact that when major offence is considered, the minor offence which come in the same line need not be considered for the purpose of sentencing. Thus, it would be ideal to hold the accused guilty of the offence under Section 325 IPC. Hence, learned Special Judge erred in 18 considering Section 323 IPC also for the purpose of imposing punishment.
29. Insofar as offence punishable under Section 3(1)(x) of SC & ST (POA) Act, is concerned, accused were found not guilty and they were acquitted and no appeal by the prosecution in this connection.
Offence under Section 325 is punishable with imprisonment which may extend to 7 years and also a fine. The learned Special Judge has imposed sentence of 2 ½ years for the offence which in my opinion not only disproportionate, but harsh as well. In my considered and sincere view, imprisonment for a period of six months would be just and proper. Thus, though the conviction for the offence punishable under Section 325 is upheld, the sentence is remitted to 6 months.
30. From the evidence of the complainant and the other witnesses, it is clear that there is no circumstance to reveal or establish that the accused being a non 19 member of SC community wanted to humiliate complainant a member of SC community and posed atrocity on him. There are no grounds to find the accused guilty of the offence punishable under Section 3(1)(x) of SC & ST (POA) Act.
31. In the circumstances, I concur with the conviction of the accused for the offence punishable under Section 325 read with section 34 IPC. However, the conviction for the offence punishable under Section 323 is hereby set aside.
32. There are ingredients of the offence punishable under Section 341 IPC which offence was committed by the accused. The finding of the learned Special Judge convicting the accused for the offences punishable under Section 341 R/W 34 IPC is hereby confirmed.
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33. Insofar as sentence is concerned, while maintaining the finding, it is just and proper to alter the sentence to bring it down from 2 ½ years to six months.
ORDER Appeal is partly allowed.
The judgment dated 12.11.2010 passed in Special Case No.72/2008 by the VI Additional Session Judge and Special Court under SC & ST (POA) Act, Mysore, is set aside in respect of the offence punishable under Section 323 IPC.
However, the conviction order passed by the learned Special Judge on sentence imposed on the accused for the offence punishable under Section 341 R/W Section 34 IPC is confirmed. However, sentence of 2 ½ years imprisonment imposed for the offence under Section 325 R/W Section 34 of IPC is modified and reduced to six months while confirming the conviction under the said Section .
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Fine amount imposed by the Special Judge prevails with default clause.
Sd/-
JUDGE tsn*