Karnataka High Court

Manjesh vs State Of Karnataka on 17 March, 2022

Bench: Mohammad Nawaz

                           1

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17th DAY OF MARCH, 2022

                        BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO.1051 OF 2012

BETWEEN:

MANJESH
S/O RAMANNA
AGED ABOUT 26 YEARS
R/AT GANAPATHI KATTE
MAVINAKERE VILLAGE
KALASA HOBLI
MUDIGERE (TALUK)
CHICKMAGALUR DISTRICT.                  ... APPELLANT


(BY SRI. A H BHAGAVAN, ADVOCATE(PH) )

AND:

STATE OF KARNATAKA
BY KALASA POLICE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001.
                                     ... RESPONDENT

(BY SRI. KRISHNA KUMAR K.K., HCGP (PH))

                          ----

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE PASSED BY THE ADDL.
SESSIONS & SPL. JUDGE, CHIKMAGALUR, PASSED IN SPL.
CASE No.36/2007 DATED 8/16-8-2012-CONVICTING THE
APPELLANT/ ACCUSED FOR OFFENCES PUNISHABLE UNDER
                                    2

SECTIONS 323 & 324 OF IPC AND SECTIONS 3(1)(x) OF SC/ST
(POA) ACT, 1989.

      THIS CRIMINAL APPEAL IS COMING ON FOR HEARING
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING;

                            JUDGMENT

This appeal is preferred by the accused, feeling

aggrieved by the judgment dated 08.08.2012 passed by the

Court of Addl. Sessions and Special Judge at Chikmagalur

in Spl.C.No.36/2007 convicting and sentencing him for the

offences punishable under Sections 323 and 324 of IPC

and sections 3(1) (x) of The Scheduled Castes and the

Scheduled Tribes(Prevention of Atrocities) Act, 1989 (for

short hereinafter referred as 'SC/ST Act').

2. Heard the learned counsel for appellant

Sri. A.H. Bhagavan and the learned High Court

Government Pleader Sri. Krishna Kumar K.K., for

respondent/State and perused the material on record.

3. The brief facts of the case of prosecution are

that on 12.07.2007 at about 10.00 p.m. when the first

informant Srinivasegowda(PW-3) was in house, his brother

Gopala @ Gopalagowda(PW-4) came and informed him that

near Ganapathikatte, Maranabylu road, while he was

proceeding on his motorcycle bearing registration

No.KA-18-Q-4979, the accused by driving his

autorickshaw bearing registration No.KA-18-9689 in a

rash manner intentionally hit his motor cycle and when he

questioned him, the accused abused him. Immediately, the

first informant (PW3) alongwith his brother (PW4) went to

enquire with the accused about the incident. At that time,

the accused on account of previous enmity, with an

intention to commit murder, assaulted PW-3 with a sickle

resulting in PW-3 sustaining injuries to his hands.

Further, the accused assaulted PW-4- his brother with the

same sickle and caused injuries to his left hand shoulder.

The accused also abused them in filthy language taking

the name of their caste and thereby committed the offences

punishable under sections 323, and 307 IPC and section

3(2) (v) of SC/ST Act.

4. Charges were framed for the aforesaid offences.

The prosecution to establish the guilt of the accused

examined 12 witnesses and got marked 19 documents and

MO-1- Chopper.

5. The trial court convicted the appellant/accused

for the offences punishable under sections 323 and 324

IPC and section 3(1) (x) of SC/ST Act.

6. PW-1 is the Investigating Officer who has laid the

charge sheet.

7. PW-2 is the head constable who assisted in the

investigation.

8. PW-3 is the first informant and he is the injured.

9. PW-4 is the brother of PW-3 and he is another

injured.

10. PWs-5 and 8 are the panchas to Ex-P16 and

Ex-P17.

11. PW-6 is the mother of PWs- 3 and 4. She is an

eyewitness.

12. PW-7 is a hearsay witness.

13. PW-9 is the Medical Officer, Primary Health

Centre, Kalasa, Chikmagalur, who treated PW-3 and

PW-4.

14. PW-10 is the Junior Engineer, Public Welfare

Department, Moodigere, who prepared the spot sketch- Ex-

P3.

15. PW-11 is the Motor Vehicles Inspector, R.T.O.,

Chikmagalur, who has issued Ex-P9 mentioning the

damages caused to the motor cycle- KA-14-Q-4979.

16. PW-12 is the Tahsildhar, Moodigere Taluk who

has issued caste certificate Ex-P2 in respect of PW-3 and

PW-4.

17. As per Ex-P15, the first information report, after

receiving the intimation from the Primary Health Centre,

the police visited the hospital and recorded the statement

of the injured/PW-3 and thereafter a case was registered

against the accused.

18. Medical Officer -PW-9 working at Primary Health

Centre, Kalasa, Chikmagalur has stated that on

12.07.2007 at about 11.00 p.m., when he was on duty,

PWs-3 and 4 came to the hospital with a history of assault.

He noticed certain injuries and issued wound certificate

which are marked as Ex-P5 and Ex-P6 respectively. He

has stated that the injuries sustained by PWs-3 and 4 are

simple in nature and further opined as per Ex-P8 that

such injuries could be caused with a sickle.

19. Both PWs-3 and 4 have stated that when they

went to enquire with the accused, he assaulted PW-3 with

a sickle and caused injuries to his hand. The evidence of

PWs-3 and 4 is corroborated with regard to accused

assaulting PW-3 with a sickle and assaulting PW-4 with

hands by the evidence of PW-6. There is nothing

worthwhile elicited from their cross examination, to

disbelieve the same.

20. From the above evidence on record, the findings

recorded by the trial court for convicting the accused for

the offences punishable under sections 323, 324 IPC is in

accordance with law.

21. The contention of the learned counsel for the

appellant is that in the first information report-Ex-P10,

there is no allegation of abusing the victims taking the

name of their caste and the same is also not spoken by

either PW-4, a victim or PW-6 who is an alleged eyewitness

to the incident in question. He contends that only at the

time of giving evidence, PW-3 has stated that the accused

has abused him in filthy language intentionally uttering

the name of his caste. He contends that it is an

improvement amounting to omission and therefore the trial

court was not justified in convicting the accused for the

offence punishable under section 3(1) (x) of SC/ST Act.

22. Learned HCGP has contended that the first

informant in his further statement has stated that abusive

words were spoken by the accused insulting his caste and

therefore, the investigation was taken over by PW-1-

Dy.S.P. He contends that in view of the evidence of PW-3,

the trial court is justified in convicting the accused for the

said offence.

23. The incident has taken place on 12.07.2007 at

about 10.00 p.m. PW-3 has sustained simple injuries to

his hand which could be noticed from the wound

certificate-Ex-P5 issued by the Doctor PW-9. His statement

was recorded in the Primary Health Centre, Kalasa,

Moodigere Taluk on the very same day i.e., at about

11.00 p.m. on 12.07.2007. Nowhere in Ex-P15-complaint,

PW-3 has alleged that he was abused by the accused

referring to his caste. In his evidence, he has deposed that

when his brother(PW-4) informed about the accused

hitting his vehicle against his motorcycle, he went to

enquire about the same alongwith his brother(PW-4) and

mother (PW-6) and at that time, the accused abused him

in filthy language and also referred to his caste as

"¨ÉÆÃ½ªÀÄUÀ£ÉÃ UËqÀ®Ä eÁwAiÀÄªÀgÀÄ ¤ÃªÀÅ K£ÀÄ ªÀiÁqÀÄwÛÃj". PW-4 and

PW-6 who are none other than elder brother and mother of

PW-3 who were very much present at the place of incident

have not stated in their evidence about the abusive words

used by the accused. On the other hand, PW-4 has stated

that the accused abused as "¨ÉÆÃ½ ªÀÄPÀÌ¼ÀÄ, ¸ÀÆ¼É ªÀÄPÀÌ¼ÀÄ", which

cannot be termed as referring to their caste. Hence, the

allegation that the accused has abused and insulted PW-3

and PW-4 by referring to their caste appears to be

doubtful. It cannot be said that the prosecution has

established the guilt of the accused for the offence

punishable under section 3(1) (x) of SC/ST Act beyond

reasonable doubt. The findings recorded by the trial court

holding that the alleged act done by the accused will

attract the offence under section 3(1) (x) of SC/ST Act is

therefore not proper.

For the foregoing reasons, I proceed to pass the

following :

ORDER

1. Appeal is allowed-in-part.

2. The impugned judgment of conviction and

order of sentence dated 08.08.2012 passed

in Spl.C.No.36/2007 by the Court of Addl.

Sessions & Special Judge, Chikmagalur,

insofar as convicting and sentencing the

accused for the offences punishable under

sections 323 and 324 IPC is hereby

confirmed.