Rangaswamy vs State Of Karnataka
2022 Latest Caselaw 3683 Kant

                            1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 04TH DAY OF MARCH, 2022

                        BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO.979 OF 2011


BETWEEN:

RANGASWAMY
S/O KALEGOWDA
AGED ABOUT 32 YEARS
MEGALAKOPPALU VILLAGE
T NARASIPURA TALUK
MYSORE DISTRICT
                                             ...   APPELLANT

[BY SRI.P.NATARAJU, ADVOCATE]

AND:

STATE OF KARNATAKA
BY BANNUR POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560001                         ...    RESPONDENT

[BY SRI.KRISHNA KUMAR.K.K-HCGP]


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND SET ASIDE
THE ORDER DATED 09/12.09.2011 PASSED BY THE VI ADDITIONAL
SESSIONS JUDGE AND SPECIAL JUDGE UNDER SC AND ST (POA)
ACT, 1989, MYSORE IN SPL.C.NO.74/2010 CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 324, 325 AND IPC
AND U/S 3(1)(X) OF SC/ST (POA)ACT, 1989 AND ETC.

                          ***
                                2

     THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:



                           JUDGMENT

The appellant/accused has assailed the judgment

passed by the trial Court convicting and sentencing him

for offences punishable under Sections 324 and 325 of

IPC and Section 3(1)(x) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989

('SC and ST (POA) Act' for short).

2. Heard both side and perused the material on

record.

3. It is the case of prosecution that on

09.05.2010 at 4.00 P.M on the road by the side of a

school in Bevinahalli village of T.Narasipura Taluk,

accused assaulted P.W.1 with a brick piece on his

Buttock and bit his right hand ring finger and also abused

him by taking his caste name with an intention to

humiliate him in public view and thereby committed the

charged offences punishable under Sections 324 and 325

of IPC and Section 3(1)(x) of SC and ST (POA) Act.

4. The complaint is lodged by the victim/P.W.1

as per Ex.P.1. It is stated that since three years he was

working under the accused in the brick kiln, making

bricks. The accused had given him an advance of

Rs.20,000/-. He had returned a sum of Rs.10,000/- and

there was a balance of Rs.2,000/- after deducting the

wages. Since he had undergone piles surgery, he could

not attend the work for about one year. On 09.05.2010

at about 4.00 p.m. when he was standing near the

school in Bevinahalli, the accused came and picked up

quarrel telling him to come and work or to return the

advance amount. When he replied that he has no

amount at present, the accused abused him as "ºÉƯÉAiÀÄ

£À£Àß ªÀÄUÀ£É £À£ÀUÉ wgÀÄVPÉÆAqÀÄ ªÀiÁvÀ£ÁqÀÄwÛÃAiÀiÁ" and picked up a

brick which was on the ground and hit on his buttock.

The accused again caught hold of his right hand and bit

his ring finger. One Siddaraju-P.W.2, Kemparaju @

Kempaia-P.W.3 intervened and sent him. Thereafter he

went to Government Hospital, Bannur and took

treatment.

5. The Injured/first informant is examined as

P.W.1. P.Ws.2 and 3 are the eye witnesses to the

incident in question. P.W.5 is the mother of P.W.1.

P.Ws.4 and 6 are Panch witnesses to the spot mahazar-

Ex.P.2 under which Mo1 and Mo2 are seized. P.W.7 is

the PSI, who has registered the case after receiving the

complaint/Ex.P.1 from P.W.1 and sent FIR/Ex.P.3 to the

jurisdictional Court. P.W.8 is the medical officer who

treated P.W.1 and issued wound certificate-Ex.P.4. P.W.9

is the police constable who carried the FIR/Ex.P.3 to the

Court. P.W.10 is the Tahasildar who issued the Caste

certificate of P.W.1 which is marked as Ex.P.5. P.W.11 is

the Investigation officer who laid the charge sheet.

6. The injured who is examined as P.W.1 has

deposed in his evidence that he has been doing the brick

work under the accused since 3 years. The accused had

given him an advance amount of Rs.20,000/-. He had

returned a sum of Rs.10,000/- and there was a balance

of Rs.2,000/- after deducting the wages. He has stated

that on the date of incident at about 4.00 P.M he was

sitting on a cart along with C.Ws.2 and 3 i.e., P.Ws.2 and

3 and at that time, accused came and asked him to

return the amount. When he said he cannot come for

work, the accused abused him as "ºÉƯÉAiÀÄ £À£ßÀ ªÀÄUÀ£É §AzÀÄ

EnÖUÉ PÉƬÄå" and told him to do the work or to return the

amount. He has stated that accused assaulted him with a

brick on his buttock and bit his right hand ring finger, on

account which the finger tip was cut off. Thereafter,

CWs.2 and 3 pacified the quarrel. He has stated that his

mother came to the spot and took the cut portion of the

finger and then he went to the Government Hospital,

Bannur at about 5.00 p.m and thereafter, went to the

police station at about 8.00 p.m and lodged the

complaint.

7. Both P.Ws.2 and 3 have stated that when

they were along with P.W.1 sitting on a cart, accused

came and picked up quarrel and abused him taking the

name of his caste and assaulted him with a brick and

also bit his ring finger.

8. It is relevant to see that in Ex.P.1, P.W.1 has

stated that at the time of incident he was standing near

the school on the road and at that time the accused

came and picked up quarrel with him and abused him as

"K£ÀÄ ºÉƯÉAiÀÄ £À£Àß ªÀÄUÀ£É £À£ÀUÉ wgÀÄVPÉÆAqÀÄ ªÀiÁvÀ£ÁqÀÄwÛÃAiÀiÁ" and

then hit him with a brick piece and also bit his right hand

ring finger. However, in the evidence before the Court he

has stated that at the time of incident he was sitting on a

cart along with CWs.2 and 3. On a careful perusal of the

complaint/Ex.P.1, it does not give an indication that

P.W.2 and P.W.3 were present when the accused is

alleged to have abused P.W.1. It can be seen that only

after the alleged abusive words were used, P.W.2 and

P.W.3 came to the spot and pacified the quarrel. It is

also relevant to see that the witnesses are not consistent

with regard to the abusive words alleged to have been

uttered by the accused insulting the caste of P.W.1.

9. In his evidence, P.W.1 has stated that

accused abused him as "ºÉƯÉAiÀÄ £À£ßÀ ªÀÄUÀ£É ªÀÄUÀ£É §AzÀÄ EnÖUÉ

PÉƬÄå". P.W.2 has stated that the accused caught hold of

the collar of P.W.1 and abused him as "ºÉƯÉAiÀÄ ¸ÀÆ¼É ªÀÄPÀ̽UÉ

¨Áj PÉƧÄâ". Whereas, P.W.3 has stated that accused

abused P.W.1 as "ºÉƯÉAiÀÄ £À£ßÀ ªÀÄUÀ£É zÀÄqÀÄØ PÉÆqÀ®Ä

DUÀĪÀÅ¢®èªÁ?". Further, according to P.W.1 after the

accused abused him, he was assaulted with a brick and

accused bit his right hand ring finger. Contrary to that,

P.W.3 in his evidence has stated that the accused first

assaulted P.W.1 with a brick and then abused him etc

and bit his finger. In view of the said inconsistency in the

evidence of P.Ws.1 to 3 with regard to the alleged

abusive words used against P.W.1, it cannot be said that

the prosecution has been able to establish the offence

committed by the accused under Section 3(1)(x) of the

SC and ST (POA) Act, beyond reasonable doubt. Further,

in view of the averments made in Ex.P.1 that P.Ws.2 and

3 came to the spot after P.W.1 was assaulted by the

accused and the incident took place when P.W.1 was

standing alone near the school, it cannot be said that

P.Ws.2 and 3 were also present near the place when

P.W.1 was abused and that the accused has insulted

P.W.1 with an intention to humiliate him by taking his

caste name in public view.

10. The learned counsel for appellant has

contended that the presence of P.Ws.2 and 3 near the

scene of occurrence is doubtful since according to P.W.1,

he alone went to the hospital and P.Ws.2 and 3 have not

accompanied him to the hospital. As per

P.W.8-Dr.G.Anupama, one Mahesh brought P.W.1 to the

hospital. He contends that if P.Ws.2 and 3 were really

present at the spot along with P.W.1, then they would

have accompanied him to the hospital, instead P.W.1 has

gone to the hospital along with one Mahesh who has not

been examined.

11. In Ex.P1, P.W1 has stated that after P.Ws.2

and 3 pacified the quarrel, he went to Bannur

Government Hospital and took treatment. He has not

stated that he was accompanied by either P.Ws.2 and 3

or by one Mahesh. Even in his evidence he has not

stated that he went to the hospital along with one

Mahesh or P.W.2. Hence, the evidence of P.W.2 that he

along with one Mahesh took P.W.1 to the hospital is not

believable. Further P.W.3 has stated that after the

incident, P.W.1 went away stating that he will go to the

hospital. He has not stated that P.W.1 was accompanied

by either P.W.2 or Mahesh.

12. According to P.W.8-Doctor who treated P.W.1,

one Mahesh brought P.W.1 to the hospital. The said

Mahesh is not examined. Hence, presence of P.Ws.2 and

3 at the spot at the time of incident in question, as

contended by the learned counsel for the appellant,

creates doubt. PW.2 in his cross examination though

initially stated that when he went to the police station at

about 5.30 p.m, P.W.1 was present in the police station

but in another breath he has stated that he went to the

police station at 6.00 or 6.30 p.m and at that time P.W.1

has not come to the police station. He has stated that,

he narrated the entire incident to the police. But his

statement is not recorded. The same gives an impression

that even before the complaint was lodged by P.W.1,

P.W.2 went to the police station and narrated about the

incident. But his statement has not been recorded by the

police. The same gives rise to doubt the genesis of the

incident.

13. Insofar as the injuries sustained by P.W.1 is

concerned, it is the case of prosecution that accused hit

P.W.1 with a brick on his buttock and also bit his right

hand finger on account of which tip of the finger was cut

off. However, perusal of the evidence of Doctor-P.W.8,

does not give an indication that ring finger of P.W.1 was

cut off at the tip. In the cross-examination of P.W.8 it is

elicited that when he gave treatment to P.W.1, he

noticed that the skin of the finger tip was peeled off, but

it was not cut and there was only bite marks. P.W.8 has

further stated that the injury mentioned in Ex.P.4 is

simple in nature. In the facts and circumstances of the

case and for the forgoing reasons it cannot be held that

the offence committed by the accused would fall under

Sections 324 and 325 of IPC. But, the evidence of P.W.1

and P.W.8 is sufficient to hold that the accused has

voluntarily caused hurt to P.W.1. The conviction and

sentence passed by the trial Court is therefore, have to

be set aside and accused is liable to be convicted under

Section 323 of IPC.

14. According to prosecution, P.W.1 was due

some amount to accused. The incident took place when

accused asked P.W.1 to return the amount or to do the

work. The incident has taken place in the year 2010.

More than 10 years have passed. Hence, sending the

accused to prison at this stage may not serve any

purpose.

For the forgoing reasons, I pass the following;

ORDER

The appeal is partly allowed.

Judgment and order dated 09.09.2011 passed by

the VI Additional District and Sessions Judge and Special

Judge under SC and ST (POA) Act, 1989, at Mysore in

Special Case No.74/2010 convicting and sentencing the

accused for the offences punishable under Sections 324

and 325 of IPC and Section 3(1)(x) of SC and ST (POA)

Act is hereby set aside.

Accused is acquitted of the said offence and he is

convicted for an offence punishable under Section 323 of

IPC.

Accused is ordered to pay a fine of Rs.1,000/-

(Rupees one thousand only) and in default of payment of

fine, he shall under go simple imprisonment for a period

of one month.

If the fine amount is deposited, the same shall be

paid as compensation to P.W.1-Devaraju S/o late

Sampaiah.

Sd/-

JUDGE BH