The sentences and in-default sentences shall
run concurrently.
3. Facts in the nutshell for the disposal of the
again. At that juncture, near the main entrance of the
proceeding near the place of incident, pacified the quarrel.
the petitioner for the aforesaid offences.
4. Learned Special Judge secured the presence of
offences after taking cognizance of the alleged offences.
5. Appellant pleaded not guilty, therefore, trial
was held. In order to establish the case of prosecution,
witnesses were examined as PW2 to PW9. Among them,
the complainant. PWs.5, 6 and 7 turned hostile to the
6. Prosecution in all relied on seven documentary
Department and Spot Mahazar. Exs.P4 and P5 are the
7. On conclusion of recording of evidence, learned
against him in the prosecution evidence.
8. Accused did not choose to examine himself nor
9. Thereafter, learned Trial Judge heard the
accused and sentenced as referred to supra.
10. Being aggrieved by the same, the accused has
8. That, the evidence and documents on
record reveals that the PW-1 has filed a false
complaint on false grounds and the trial court has
failed to appreciate the fact that, there is
inconsistency between the evidence of PW-1, PW-2
and PW-3 regarding the manner in which the
incident took place and the spot and the presence
of said witnesses.
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9. It is submitted that viewed at any angle
the impugned judgement of conviction suffers from
serious infirmities and question of law and
misconception in appreciating evidence of
prosecution witnesses.
10. It is submitted by the Appellant, that this
Hon'ble Court be pleased to permit their counsel to
urge some grounds at the time of argument.
11. It is submitted that no other appeal is
pending or filed by the appellant before the any
court of law for the same cause of action except the
present appeal."
11. Sri S.S. Aspalli, learned counsel for the
appellant reiterating the grounds urged in the appeal
memorandum contended that the learned Trial Judge
failed to note that there are serious discrepancies in the
case of the prosecution which were pointed out to the
learned Trial Judge.
12. He would further contend that as per the
complaint, incident has occurred near the main entrance of
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the village, whereas, complainant while deposing before
the Court has unequivocally deposed that incident has
occurred in the shop of PW7-Devanna. But PW7 has
turned hostile to the case of the prosecution and
therefore, the prosecution failed to establish place of the
incident itself, which has been totally ignored by the
learned Trial Judge while convicting the appellant and thus
sought for allowing the appeal.
13. Per contra, Sri Jamadar Shahabuddin learned
High Court Government Pleader appearing for respondent-
State while supporting the impugned judgment of
conviction and sentence, contended that PWs.1 to 5 have
totally supported the case of the prosecution.
14. He would further contend that it is not the
quantity of the evidence that is to be appreciated, it is
quality of the evidence that needs to be taken into
consideration and therefore the finding of conviction
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recorded by the learned Trial Judge is just and proper and
sought for dismissal of the appeal.
15. He further pointed out that the PWs.1 to 3 have
specifically deposed about the accused taking out caste
name in the public place and public view would attract all
the ingredients of the offence under Section 3(1)(x) of the
SC/ST Prevention of Atrocity Act and minor discrepancies
elicited in the cross-examination are to be ignored as it is
only 2/3rd witnesses who have deposed as per their
statements recorded under Section 161 of Cr.P.C., and
while appreciating the material evidence, the gist of the
case of prosecution must be appreciated from the oral
testimony of the witnesses. As such, the findings recorded
by the trial Judge are just and proper and sought for
dismissal of the appeal.
16. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
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17. On such perusal of the material on record, the
following points would arise for consideration:
1) Whether the prosecution has
successfully established all ingredients to
attract the offences under Section 323 of
IPC read with Section 3(1)(x) of the
SC/ST (PoA) Act?
2) Whether the appellant makes out a
case that the impugned judgment of
conviction is suffering from legal infirmity
and perversity and calls for interference?
3) Whether the sentence is excessive?
4) What order?
Regarding point Nos.1 and 2:-
18. In the case on hand, prosecution in order to
establish its case, examined 09 witnesses, among them
PWs.1 to 5 have supported the case of the prosecution.
PWs.6 and 7 have turned hostile to the case of the
prosecution. PW8 is the I.O. and PW9 is the FIR carrier.
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Thus, the material witnesses in the case of the prosecution
are PWs.1 to 5.
19. PW1 is the complainant, who deposed in line
with the complaint averments by stating that on
31.10.2010 he has visited T. Bommanahalli Village as a
part of his duty. He further deposed that about 15 days
earlier to 31.10.2010, there was disconnection of the
electricity to the house of the appellant and in that regard
appellant all of a sudden came near grocery shop of PW7
and when complainant was inside the shop of PW7,
appellant picked up a quarrel, abused the complainant in
filthy language taking his caste name and assaulted and
kicked him. The quarrel was pacified by
Devendrappa(PW2), Hanumantha(PW5) and Madevappa
(PW3).
20. In his cross-examination, he admits that he has
not made any entry in the Register maintained in the
office that he is visiting T. Bomanalli Village. He denies
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the suggestion that he did not state in his complaint that
the incident has occurred in the grocery shop of PW7. He
has answered that father of the accused and others have
pacified the quarrel. He denies the suggestion that in the
complaint he has not stated that PW2, PW5 and PW3 have
pacified the quarrel. He has answered that the shop of
PW7 and main entrance of the village is at a distance of
150 feet and if any quarrel takes place in the main
entrance of the village it is not visible to the shop of PW7.
21. PW2 is Devendrappa, who is a student, aged 26
years and resident of Vagnagera. He deposed that he has
witnessed the incident that has occurred on 31.10.2010 at
about 09.00 a.m., when he was near the shop of PW7. He
also deposed that accused/appellant has abused and
assaulted and kicked the complainant.
22. In his cross-examination he has answered that
shop of PW7 is situated about 200 or 250 feet away from
main entrance of the village. He admits that in and
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around the shop of PW7 there are several shops and
houses. He admits that if some incident occurs in the
main entrance of the village, the same is not visible if
somebody is near the Shop of PW7. He admitted that in
his statement before the Police he has stated that the
accused has assaulted the PW1 near the shop.
23. PW3 - Mahadevappa, who is the resident of T.
Bomanalli, who is a Social Activist deposed in line with
PW2.
24. In his cross-examination, he admits that
complainant is his far relative and belonging to the same
caste. He also stated that the incident has occurred near
the shop of PW7. He admits that CW4 - Suresh and CW5 -
Devanna have pacified the quarrel.
25. The Section Officer of the GESCOM is examined
as PW4, who stated that at the request of Investigating
Officer he has issued a letter, whereunder it has been
mentioned that the PW1 has been deputed for bill
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collection in T. Bomanalli Village. In his cross-
examination, he admits that before visiting any particular
village, Bill Collector has to make an entry in the Register.
He admits that he has not produced any such Register to
the Court.
26. PW5 - Hanumantha is one of the Panch
Witnesses to Spot Mahazar marked at Ex.P3 and he has
supported the case of the prosecution.
27. In his cross-examination on behalf of the
accused, he has answered that he did not know about the
incident till the Police arrived in the jeep on the date of
Mahazar marked at Ex.P3. Admittedly, the Police have
visited the village on 01.11,2010 after registering the
case. He admits that on his own he acted as Panch for
Ex.P3 - Mahazar.
28. PW6 - Suresh, who is supposed to be one of
the eyewitnesses to the incident, has turned hostile to the
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case of prosecution. In his cross-examination by the
prosecution no useful material is elicited.
29. So also the shop owner, namely - Devanna,
who is a star witness to the prosecution did not support
the case of the prosecution to any extent and he has
specifically stated that he has not seen the incident nor
given any statement before the Investigating Officer.
30. In his cross-examination also prosecution is
unable to elicit any material so as to probabilise the case
of the prosecution.
31. PW8 is the Investigating Officer, who deposed
about the registration of the case, taking up the further
investigation, conducting Spot Mahazar at Ex.P3, recording
of the statements of the witnesses and filing the collection
of cash, collection of caste certificate and filing the charge.
In his cross-examination, he denies the suggestion that a
false case has been foisted by the complainant and
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without conducting the investigation in a proper manner,
he has filed a false charge-sheet.
32. PW9 is the FIR carrier whose evidence is formal
in nature.
33. The above evidence on record is sought to be
re-appreciated on behalf of the appellant.
34. On careful consideration of the above evidence
on record, admittedly PW1 and PW2 are the residents of
Vaganagera. PW1 is the Bill Collector of GESCOM.
Admittedly, on 31.10.2011 is a Sunday and he had visited
the T. Bommanalli Village. According to PW1 there is no
necessity to sign the Register before visiting T.
Bommanalli Village, but PW5 specifically answered that
whoever the Bill Collectors visit any village, they is bound
to make necessary entry in the Register maintained in the
GESCOM office. Therefore, the very stand taken by the
PW1 that he had visited T. Bommanalli Village for the
purpose of bill collection cannot be countenanced in law.
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35. Further, PW2 being the relative of PW1,
admittedly being the resident of Vagangera had also
accompanied PW1. PW2 claims to be a student who is
aged 26 years. What education that he was pursuing at
the age of 26 is not even spoken to by the prosecution.
Therefore, he being the relative and resident of
Vagangera, it can be easily inferred that he has
accompanied the PW1 to T. Bomanalli Village for some
other purpose.
36. According to the PW1 and the complaint
averments, the incident has taken place near the main
entrance of the village, whereunder, accused all of a
sudden came and questioned the PW1 as to why there is
disconnection of electricity to his house and picked up the
quarrel. But while deposing before the Court, PW1 has
stated that the incident has occurred when PW1 was in the
shop of PW7. Therefore, oral testimony of PW7, who is a
star witness to the prosecution assumes importance. The
other witnesses, who supported the case of prosecution,
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namely, PW2 and PW3, have stated that the incident has
occurred near the grocery shop of PW7. However, PW7
did not support the case of prosecution to any extent and
unequivocally deposed before the Court that no incident as
alleged by the prosecution has taken place near his shop
nor he has witnessed the incident.
37. Therefore, very genesis of the crime and
possibility of any incident as is alleged by the prosecution
itself is not established by the prosecution with cogent and
convincing evidence on record. PW3 is admittedly a
relative of PW1 and belonging to the same caste that of
PW1.
38. Further, according to PW1, PW5 - Hanumanth
has also witnessed the incident. Whereas, as per the
prosecution, Hanumanth Hosamani is only a punch witness
to Ex.P3 - Panchnama. In his cross-examination, PW5 -
Hanumanth has categorically admitted that he did not
know about the incident till the Police came on the next
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day and he has volunteered to act as Mahazar-witness for
Ex.P3 - Panchnama. These discrepancies in the case of
prosecution are totally ignored by the learned Trial Judge
while passing the impugned judgment.
39. Further, there is no discussion as to the
contradictions that are elicited in the cross-examination of
the prosecution witnesses and the interested testimony of
PW2 and PW3, who are none other than the relatives of
PW1 are not tested with the required caution and care
while appreciating the testimony of PW1 to PW3.
40. While there is no bar to place reliance on the
interested testimony, the Trial Court is required to
exercise necessary care and caution to find out the
possibility of the false implication of the accused in the
incident, especially when the testimony of the interested
witnesses are to be appreciated. Such a course is not
adopted by the learned Trial Judge while passing the
impugned judgment.
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41. But the presence of the accused was found near
the main entrance as could be seen from the complaint
averments and there was a quarrel as there was a
disconnection of electricity to house of accused.
Therefore, possibility of some altercation between the
accused and the complainant cannot be ruled out on the
incident. In such altercation, kicking of the PW1 by the
accused cannot also be ruled out. However, from the
material on record, none of the discrepancies that is
pointed out above in the cross-examination of the
prosecution witnesses, ingredients to attract the offence
punishable under Section 3(1)(x) of the SC/ST Prevention
of Atrocity Act, whereby, the prosecution is expected to
prove beyond reasonable doubt with cogent evidence that
the accused with an intention to degrade or insult the PW1
in public by taking out the caste name, have not been
established, the impugned judgment convicting the
accused for the aforesaid offence needs to be set aside
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while maintaining the conviction of the appellant for the
offence under Section 323 IPC.
42. Accordingly in view of the foregoing discussion,
Point Nos. 1 and 2 are answered partly in the affirmative.
Regarding point No.3:-
43. Since, this Court has modified the impugned
judgment of conviction for the offence under Section 323
IPC, the fine is enhanced in a sum of Rs.10,000/- and
Rs.5,000 compensation ordered by the Trial Judge is
maintained, ends of justice would be met. Accordingly
point No.3 is answered partly in the affirmative.
Regarding point No.4:-
44. In view of the finding of this Court on point
Nos.1 to 3 as above, following order is passed:
ORDER
i. The appeal allowed in part.
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ii. The impugned judgment is modified as under:
(a) Accused/appellant is acquitted
for the offence punishable under Section
3(1)(x) of the SC/ST (PoA) Act and
conviction of the accused for the offence
under Section 323 is maintained.
(b) Custody period already
undergone by the accused is be treated as
period of imprisonment for the offence
under Section 323 IPC.
(c) For the proved offence under
Section 323 of IPC, the appellant is directed
to pay fine of Rs.10,000/- inclusive of the
fine imposed by the Trial Court to be
payable on or before 15.07.2025. Failure
to pay the enhanced fine amount would
result in Simple Imprisonment of 2 months
as a default sentence.
(d) Out of the fine amount, a sum of
Rs.5,000/- is ordered to be paid as
compensation to PW1 and balance sum of
Rs.5,000/- to be appropriated towards the
defraying expense of the State.
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(e) Office is directed to return the
Trial Court Records with copy of this order
for issue of modified warrant.
Ordered accordingly.
Sd/-
(V. SRISHANANDA)
JUDGE
SBS
CT:PK
