Huseinsab and Others vs State of Karnataka

S.N. Satyanarayana, J.—1. Accused Nos. 1 and 2 in S.C. No. 36/2008, on the file of Special Court (District and Sessions), Bagalkot, have come up in this appeal challenging the judgment and sentence passed in the judgment dated 29.7.2009.

The brief facts leading to this appeal are that accused Nos. 1 and 2 and complainant are neighbours residing in the same vicinity. The genesis of this dispute dates back to 1.6.2008, on which day the grandson of complainant Nagavva viz., Amaresh who is P.W. 3 in the Court below is said to have committed theft of Rs. 200/- in the house of accused Nos. 1 and 2 along with two other friends of him. It is the case of the prosecution that when the said boy was caught in the act of stealing, he was apprehended by accused Nos. 1 and 2. It is stated that they were trying to punish him for the said offence. At that time his maternal aunt Kasturawa-P.W. 2, who had come to her parents house for confinement, came to the place of incident along with her minor child aged less than one year to protect her nephew P.W. 3. Simultaneously the complainant who is grandmother of P.W. 3 also came to that place. In the commotion, Nagavva is said to have fallen down fracturing the neck of left thigh femur. That, P.W. 3 Amaresh is said to have suffered a small injury on his shoulder measuring to an extent of half an inch. The records would disclose that the complainant Nagavva and her grandson Amaresh were treated by doctors P.W. 8 and P.W. 9 and thereafter complaint was lodged by P.W. 1 on 4.6.2008 at about 9.00 p.m. The complaint is admittedly received by the respondent police on the very same date immediately after the alleged offence said to have taken place, which is punishable under Section 323, 338, 504, 109 read with section 34 of IPC and Section 3(i)(ix) and 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Based on the said complaint, FIR was registered, matter was investigated and charge sheet was filed against appellants 1 and 2 herein, who are accused Nos. 1 and 2 and another person by name Hussainsab S/o. Rajesab. Since there was accusation of accused No. 1 to 3 taking the name of caste to which the complainant belongs, which is scheduled caste, the provisions of Section 3(i)(ix) and 3(i)(xi) is also invoked. In the said proceedings on behalf of complainant in all 11 witnesses were examined and 10 documents were relied upon. Out of 11 witnesses, P.W. 1 is the complainant, P.W. 2 is the daughter of complainant, P.W. 3 is the grandson who is said to be the cause for this commotion. The independent eye witnesses are P.W. 4, 5 and 7. P.W. 6 is the husband of complainant.

The learned Sessions Judge on appreciation of pleadings and evidence available on record proceeded to pass judgment convicting appellants 1 and 2 herein for the offence punishable under Section 323, 338, 504 read with Section 34 of IPC and Section 3(i)(ix) and 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. So far as accused No. 3 is concerned, it was held that there are no material to connect the said accused with the offence alleged and no overt act is attributed to him and his involvement is also not established, hence he was acquitted.

Being aggrieved by the judgment and sentence, accused Nos. 1 and 2 have come up in this appeal impugning the judgment rendered by the Sessions Court in Spl. C. No. 36/2008 on the grounds that though commotion between the family of accused Nos. 1 and 2 and that of the complainant is admitted, the allegation of using caste name is false in as much that was not included in the complaint initially, but it is included as an after thought only with an intention to harass the accused. Further, there are no evidence on record regarding injuries suffered by the complainant Nagavva and her grandson Amaresh. The evidence on record would disclose that Nagavva has suffered fracture due to fall in the said commotion, which is sought to be converted as an injury deliberately caused by accused Nos. 1 and 2. The finding of the Court below in holding that accused Nos. 1 and 2 have committed the aforesaid offence punishable under Section 323, 338, 504 of IPC, is stated to be false.

It is further contended that the judgment with reference to convicting the accused Nos. 1 and 2 for the offence punishable under Section 3(i)(ix) and 3(i)(xi) is also erroneous in as much as the independent witnesses namely P.W. 4, 5 and 7 have not uttered a single word with reference to the accused Nos. 1 and 2 taking the name of complainant and her family members as persons belonging to SC/ST community and caused any harm to them in defamatory manner. In spite of evidence not being available, the learned Sessions Court has ignored the same and proceeded to convict them for the aforesaid offence also.

Heard the learned counsel appearing for the appellants and as well as the learned Government Pleader appearing for the State. Perused the grounds urged in the appeal memo along with pleadings and oral and documentary evidence available on record.

On going through the same, this Court is of the opinion that the entire evidence which is available on record would confirm the incident taking place with reference to quarrel between accused Nos. 1 and 2 on one side and P.W. 1, her daughter Kasturawa-P.W. 2, her grandson Amaresh-P.W. 3 and her husband P.W. 6-Yankappa Talawar, on the other side with reference to the alleged theft committed by P.W. 3 Amaresh in the house of accused Nos. 1 and 2. To substantiate said allegation there is admission on the part of the complainant-P.W. 1 and her husband P.W. 6 to an effect that the amount of Rs. 200/-, which was said to have stolen by P.W. 3 is returned by P.W. 6. Therefore the incident of theft is established beyond doubt. Therefore the commotion which has taken place is in furtherance to this act of theft committed by P.W. 3. Though in the evidence P.W. 3 tried to pass on the same on his two other friends namely Sharifa and Hussaini, the material on record would demonstrate that he was very much in their company at the relevant point of time showing that their involvement is also there.

In the complaint though there is accusation of complainant that accused Nos. 1 and 2 have beaten up her daughter P.W. 2 and grandson P.W. 3. There is a clear admission of witnesses that there were no visible mark of injury on the body of P.W. 1, 2, 3 and 6, except a small half a inch cut injury on the shoulders of P.W. 3. Even assuming that such an injury is there, there is no reference to that the said injury is the injury referred to in the complaint or any other document. Except stating that the complainant, her daughter and grandson are injured, there is no evidence to substantiate the same. However the presence of injury on the shoulder is confirmed by P.W. 8 who has treated P.W. 3 and another doctor P.W. 9 who has treated the daughter of complainant, who is said to have attended to the injuries suffered to her leg.

So far as accusation that accused Nos. 1 and 2 took the name of caste to which the complainant and her family members belong to is totally erroneous. It is a deliberate false complaint on that count, as could be seen from the evidence of PWs. 4, 5 and 7, wherein they categorically stated at no point there was reference to name of caste to which the complainant her daughter and her grandson and her husband belonged could be seen from the record. With this what could be inferred is, it was an unfortunate incident which started with theft of Rs. 200/- in the house of accused Nos. 1 and 2, which is attributable to P.W. 3, a minor boy who is said to have committed the same along with his two friends has led to commotion between two families and thereby an attempt was being made to fix accused Nos. 1 to 3 for the offence which they have not committed.

No doubt with reference to other offence, viz., punishable under Section 323, 338, 504 of IPC are concerned, there is sufficient material and what is not said by the independent witnesses is with reference to accusation of using the caste name of complainant and her children as one of the basis to defame them which is not at all supported by any of the witnesses. In this background if the judgment is looked into, the learned Sessions Judge has committed a serious error in accepting the accusation levelled against accused persons for the offence punishable under Section 3 and other relevant provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and consequently further error is committed by him in imposing sentence and as well as fine for said offence, which is incorrect.

In that view of the matter this Court feel that the appeal which is filed by accused Nos. 1 and 2 is required to be allowed partly in setting aside the judgment which is passed convicting the accused Nos. 1 and 2 for the offence punishable under sections 3(i)(ix) and 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and also by setting aside the sentence which is imposed for the said offence. When it comes to the judgment with reference to conviction given for the offence punishable under Section 323, 338 and 504 read with section 34 of IPC is concerned, the same is required to be modified both with reference to judgment and as well as sentence.

Accordingly this Court allow this appeal in part and consequently modify the judgment passed by the Sessions Court in holding that the accused Nos. 1 and 2 are liable to be punished by convicting them for the aforesaid offences and in that behalf sentencing them to undergo simple imprisonment for a period of 15 days and as well as to pay a fine of Rs. 1,000/- each for each of the three offences i.e., offences punishable under Section 323, 338 and 504 of IPC. Since the sentence of imprisonment being 15 days which is already completed by them while they were in judicial custody, the same is given set of against the sentence passed in the judgment herein. With reference to the fine amount which is imposed is concerned, the same will have to be paid within four weeks from today, failing which they shall undergo simple imprisonment for one week.