Karnataka High Court
K. B. Nagaraju vs State By Hunsur Town Police on 20 December, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
-1-
NC: 2023:KHC:46616
CRL.A No. 202 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 202 OF 2012
BETWEEN:
1. K. B. NAGARAJU
AGED ABOUT 40 YEARS,
S/O BASAVALINGAPPA,
2. K.B. RAJU
AGED ABOUT 36 YEARS,
S/O BASALINGAPPA,
3. K.B. KUMAR
AGED ABOUT 38 YEARS,
S/O BASALINGAPPA,
4. LOKESHA
AGED ABOUT 24 YEARS,
S/O NAGARAJU,
Digitally
ALL ARE RESIDING AT
signed by
SUMITHRA R KIRIJAJI VILLAGE,
HUNSUR TALUK,
Location: MYSORE DISTRICT.
High Court of
...APPELLANTS
Karnataka
(BY SRI. C M JAGADEESH, ADVOCATE)
AND:
1. STATE BY HUNSUR TOWN POLICE
REPRESENTED BY
PUBLIC PROSECUTOR,
BANGALORE
...RESPONDENT
(BY SMT. SOWMYA R., HCGP)
-2-
NC: 2023:KHC:46616
CRL.A No. 202 of 2012
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:17.1.12 PASSED BY THE VI
ADDL.S.J., AND SPL. JUDGE UNDER SC & ST (POA) ACT, 1989,
MYSORE IN SPL.C.NO.32/11 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 341, 323, 504
R/W 34 OF IPC AND U/S 3(1)(X) OF SC/ST (POA) ACT, 1989.
THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
against the Judgment and Order dated 17.01.2012 passed
by the Court of VI Additional District and Sessions Judge
and Special Judge under SC & ST (POA) Act, 1989, at
Mysore in Special Case No.32/2011, wherein, the accused
are convicted for the offence punishable under Sections
341, 323 and 504 r/w 34 IPC and Section 3(1)(x) of SC &
ST (PoA) Act, 1989.
2. It is the case of the prosecution that on
19.01.2011 at about 7.45 p.m., in front of the petty shop
of PW11-Chengappa of Kirijaji village, in furtherance of
common intention, the accused wrongfully restrained
PWs.2 and 3 and assaulted them. Further, they
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intentionally insulted and provoked them to commit breach
of peace and also abused them by taking their caste name
with an intention to insult and humiliate them in public
view.
3. The incident took place on 19.01.2011 at about
7.45 p.m. The complaint-Ex.P1 came to be lodged at
about 11.45 p.m. on the same day. The complainant is
PW1. He is an eyewitness to the incident. However, he
has turned hostile and not supported the case of
prosecution.
4. In Ex.P1, it is stated that when PW2 was
coming towards grocery shop, accused No.1 wrongfully
restrained him and told him that he has assaulted
Anand-PW3 and asked him to settle the matter. At that
time his brother i.e., accused No.2 started abusing him in
filthy language insulting his caste and fisted PW2 on his
chest and abdomen. Accused Nos.3 and 4 also came and
abused and assaulted them etc. In Ex.P1, it is stated that
the injured PW2 was shifted to Hunsur General Hospital
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and from there he was taken to Mysore for higher
treatment.
5. The prosecution has got examined the injured
as PW2. The Doctor, who treated him at Hunsur Hospital
is examined as PW6. The wound certificate of PW2 is
marked as Ex.P3. PW6 has deposed that on 19.01.2011
at about 9.15 p.m., the injured-PW2 was brought to the
hospital for treatment by one Abhishek-PW10, with a
history of assault by accused Nos.1 to 4 with clubs, stones
and hands. As per Ex.P3, certain abrasions measuring
2 x 2 inches are noticed on the left knee and contusion
over the dorsum of the left foot measuring 1 x 1 inches.
The said injuries are stated to be simple in nature.
6. Apart from the evidence of PW2 injured, the
prosecution has relied on the evidence of PWs.1, 3, 4, 7 to
11, the eye witnesses. PWs.1, 10 and 11 have been
treated hostile by the prosecution. Neither in Ex.P1 nor in
the evidence of the eye witnesses it is stated that PW2
was assaulted by the accused with clubs or stones.
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Further, according to Ex.P1, PW2 was shifted for higher
treatment to Mysore, but there are no medical documents
placed on record to show that PW2 took treatment in any
other hospital. However, the evidence of the injured-PW2
is corroborated by the evidence of the medical officer and
the wound certificate-Ex.P3. Hence, in view of the
evidence of PW2 coupled with the medical evidence,
conviction and sentence passed by the trial Court for the
offence punishable under Sections 341 and 323 of IPC is
proper.
7. Insofar as the allegations that the accused have
abused PWs.2 and 3 insulting their caste is concerned, the
evidence of the prosecution witnesses is not consistent.
PW2 has deposed that all the four accused abused him
referring to his caste. It is not specifically stated as to
which of the accused abused and in what manner the
accused abused him. Omnibus allegations are made.
Similarly, PWs.3, 4, 7, 8 and 10 have made omnibus
allegations stating he was abused by all the accused,
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whereas PW9 has stated that it was accused No.2 who
abused him in filthy language. Hence, there is no
consistency. Their evidence with regard to the abusive
words used against PW2 does not inspire confidence of the
Court. Further, it is not the case of the prosecution that
on the ground that PW2 or PW3 belong to Scheduled
Caste, the offence was committed and there is no
sufficient evidence to show that the accused persons have
intentionally abused and intimidated PW2 with an intention
to humiliate him. Hence, conviction and sentence passed
by the trial Court for the offence punishable under Section
3(1)(x) of SC & ST (PoA) Act is liable to be set aside.
8. Insofar as Section 504 of IPC is concerned, the
learned counsel for the appellant has relied on a decision
of the Hon'ble Apex Court in the case of Fiona
Shrikhande v. State of Maharashtra and another
passed in Crl.A.No.1231/2013 disposed of on
22.08.2013. It is useful to refer to paragraph-13 of the
said judgment, which is extracted hereunder:
NC: 2023:KHC:46616
"13. Section 504 IPC comprises of the following
ingredients, viz., (a) intentional insult, (b) the insult
must be such as to give provocation to the person
insulted, and (c) the accused must intend or know
that such provocation would cause another to break
the public peace or to commit any other offence. The
intentional insult must be of such a degree that
should provoke a person to break the public peace or
to commit any other offence. The person who
intentionally insults intending or knowing it to be
likely that it will give provocation to any other person
and such provocation will cause to break the public
peace or to commit any other offence, in such a
situation, the ingredients of Section 504 are
satisfied. One of the essential elements constituting
the offence is that there should have been an act or
conduct amounting to intentional insult and the mere
fact that the accused abused the complainant, as
such, is not sufficient by itself to warrant a conviction
under Section 504 IPC."
9. Even in the present case, the essential
elements to constitute the offence under Section 504 IPC
are not established. Hence, the accused are liable to be
acquitted of the said offence.
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10. For the forgoing reasons, the following:
ORDER
i. The appeal is partly allowed.
ii. The Judgment and Order dated 17.01.2012
passed by the Court of VI Additional District and Sessions
Judge and Special Judge under SC & ST (POA) Act, 1989,
at Mysore in Special Case No.32/2011, convicting and
sentencing the appellants/accused Nos.1 to 4 for the
offence punishable under Sections 341 and 323 of IPC is
hereby confirmed.
iii. The conviction and sentence passed for the
offence punishable under Section 504 r/w 34 IPC and
Section 3(1)(x) of SC & ST (PoA) Act, 1989 is hereby
set aside.
SD/-
JUDGE
TL
