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Criminal Appeal No.880/2015 is filed by Accused No.1; Criminal Appeal No.858/2015 is filed by Accused Nos.4 and 5; and Criminal Appeal No.872/2015 is filed by Accused Nos.2 and 3. These Criminal Appeals are filed against the common Judgment of conviction and Order of sentence dated 22/24.4.2015 made in Special Case No.42/2012 on the file of the II Addl. District & Sessions (Special) Judge, D.K., Mangaluru convicting the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 {'SC & ST (POA) Act' for short} and sentencing them to undergo imprisonment for life with fine of Rs.5,000/- each for the offence under Section 302 of IPC; to undergo imprisonment for life with fine of Rs.5,000/- each for the offence under Section 3(2)(v) of the SC & ST (POA) Act; and to undergo Simple Imprisonment for one year, three months, six months and to pay fine etc., for the other offences.

6. After considering both the oral and documentary evidence on record, the learned Sessions Judge answered the 1st point in the affirmative and the 2nd and 3rd points partly in the affirmative. Accordingly, the learned Sessions Judge by the impugned judgment and order convicted the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) of the SC & ST (POA) Act, 1989 and sentenced them to undergo imprisonment for life with fine of Rs.5,000/- for the offence under Section 302 of IPC; Simple Imprisonment for six months with fine of Rs.1,000/- for the offence under Section 504 of IPC; Simple Imprisonment for three months with fine of Rs.1,000/- for the offence under Section 323 of IPC; fine of Rs.1,000/- for the offence under Section 341 of IPC; one year Simple Imprisonment with fine of Rs.1,000/- for the offences under Sections 143, 147 and 148 of IPC; and imprisonment for life with fine of Rs.5,000/- for the offence under Section 3(2)(v) of the SC & ST (POA) Act and directed that the sentences shall run concurrently.

IX. REGARDING CONVICTION OF ACCUSED NOS.1 TO 5 UNDER SECTION 3(2)(v) OF THE SC & ST (POA) ACT

60. The learned Sessions Judge proceeded to convict the Accused Nos.1 to 5 for the offence under Section 3(2)(v) of the SC & ST (POA) and sentenced them undergo imprisonment for life merely because the deceased Kumar is a member of Scheduled Caste. Admittedly, the accused and PWs.1 to 3 are strangers and there was enmity between PW.5 and Accused No.1. In the entire evidence of the prosecution witnesses and the material documents, there was no whisper about making an assault by the accused persons knowing that the victim or the deceased is a member of Scheduled Caste or Scheduled Tribe. The fact that the victim or the deceased belonged to Scheduled Caste or Scheduled Tribe would not be enough to invoke the provisions of Section 3(2))(v) of the SC & ST (POA) Act. Absolutely, there is no material including the complaint averments that knowing fully the caste of the deceased, the accused persons assaulted the deceased. Therefore, the very inclusion of the provisions of SC & ST (POA) Act by the Investigating Officer is without any basis. To invoke the said provision, the offence must have been committed against the person on the ground such person is a member of the Scheduled Caste or Scheduled Tribe. There is no evidence to show that the offence committed only on the ground that the victim or the deceased was a member of the Scheduled Caste or Scheduled Tribe. In the absence of the same, and in peculiar circumstances, the impugned judgment and order of conviction passed by the trial Court in so far as convicting accused Nos.1 to 5 under Section 3(2)(v) of SC & ST (POA) Act, cannot be sustained and the same is liable to be set aside.

63. The 2nd point raised in these criminal appeals is answered in the affirmative holding that the appellants - Accused Nos.1 to 5 have made out a case to interfere with the impugned of conviction and order of sentence passed by the trial Court in so far as convicting them for the offence punishable under Section 3(2)(v) of the SC & ST (POA) Act, 1989.

64. Accordingly, the impugned Judgment of conviction and order of sentence in so far as convicting Accused Nos.1 to 5 for the offence punishable under Section 3(2)(v) of SC & ST (POA) Act, 1989 and sentencing them to undergo imprisonment for life with fine of Rs.5,000/-, is liable to be set aside.