JAYARAM v. THE STATE OF KARNATAKA

2. The brief facts of the prosecution case is that:- - 3 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 On 12.03.2007 at about 10:00.a.m, PW.2-Shivamurthy lodged a complaint vide Ex.P.7, wherein he has alleged that he belongs to Harijan by caste and he is residing with his wife and son at Lakkasandra village. On 01.03.2007, at 8:00.p.m, after having his dinner, he went to sleep. On the same night at 3:00.a.m, he heard the sound of someone opening the door of his house and hence, he woke up and found that accused Jayaram was entering his house, wielding MO.1-machu in his hand. The accused took quarrel with PWs.2 and 3. When PW.3-Gowramma, wife of PW.2-Shivamurthy, tried to escape from the clutches of the accused, he chased her, pulled her legs causing abrasion to knees. He also assaulted PW.2 and his son-Hemanth with MO.1-machu and caused bleeding injuries. In the meanwhile, PWs.2 and 3 raised hue and cry. Therefore, his neighbours, PW.4-Raju, PW.5-Manchaiah and PW.6- Jayamma came there and tried to prevent the accused from assaulting them, but the accused also assaulted them with MO.1-machu and caused bleeding injuries. In the meanwhile, PW.7-Marekka and PW.8-Gowrishaiah came and pacified the quarrel. In this regard, PW.2 lodged a complaint on - 4 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012

02.03.2007 at 10:00.a.m. Hence, this led to registration of FIR and investigation.

3. After filing of the charge sheet, the Jurisdictional Court took cognizance of the alleged offences against the accused and after hearing both side, the Trial Court framed the charges for the aforesaid offences against the accused, for which, accused pleaded not guilty and claimed to be tried.

4. The prosecution in order to prove its case examined 12 witnesses as PWs.1 to 12 and got marked 10 documents as per Exs.P1 to P10 and one material object as MO.1. For the defence, none of the witnesses has been examined and no documents are marked on behalf of the accused.

5. The trial Court framed the following points for consideration which are as under: "1. Whether prosecution has been able to prove beyond that on reasonable doubt 01-03-2007 during mid-night at 3.00 a.m., at Lakkasandra Village, when C.W.1 - Shivamurthy and C.W.2 - Gowramma were sleeping in their house, the accused committed criminal house trespass by holding machu in his hand and thereby committed an offence punishable under Section 448 of I.P.C.? - 5 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012

2. Whether prosecution has been further able to prove beyond reasonable doubt that on the aforesaid C.W.2 - Gowramma with legs and pulled her sari outraging her modesty and thereby committed an offence punishable under Section 354 of I.P.C.? place, date, kicked

3. Whether prosecution has been further able to prove beyond reasonable doubt that on the aforesaid date, time and place, the accused assaulted C.W.1 - Shivamurthy and his son Hemanth with machu on his right shoulder and right hand wrist and caused simple bleeding injuries to him and thereby committed an offence punishable under Section 324 of I.P.C.?

4. Whether prosecution has been further able to prove beyond reasonable doubt that on the aforesaid date, time and place, the accused assaulted P.W.4 - Raju on his right ear & right thigh, assaulted P.W.5 - Manchaiah on his middle finger & left thigh and assaulted P.W.6 - Jayamma on her right thumb, when they tried to intervene in the quarrel and caused simple injuries to them and thereby committed an offence punishable under Section 324 of I.P.C.?

5. Whether prosecution has been further able to prove beyond reasonable doubt that on the aforesaid date, time and place, the accused not being the member of SC or ST, intentionally humiliated by abusing C.W.1 in filthy language touching the name of his caste as “ºÉƯÉAiÀÄ £À£Àß ªÀÄUÀ£É.” within public view and thereby committed an offence punishable under Sections 3(i)(x) of SC/ST(P.A.)Act 1989?

6. Whether prosecution has been further able to prove beyond reasonable doubt that on the - 6 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 aforesaid date, time and place, the accused not being the member of SC or ST, intentionally committed criminal house trespass and outraged on C.W.2 - Gowramma, who is the member of S.C./S.T. solely on the ground that she belongs to schedule caste and thereby committed an offence punishable under Sections 3(i) (xi) of SC/ST (P.A.) Act 1989?

7. What order?"

6. The trial Court based on the oral and documentary evidence on record, convicted the accused for the offences punishable under Sections 448, 354 and 324 of IPC and under Sections 3(i)(x)(xi) of SC / ST (POA) Act, 1989.

7. Being aggrieved by the judgment of conviction and order of sentence, the accused has preferred this appeal contending that the impugned judgment passed by the trial Court is contrary to law, and facts and evidence on record. The trial Court had applied its judicious mind while considering the evidence of the prosecution witnesses. It is contended by learned counsel for the appellant that, all the prosecution witnesses are relatives and neighbours. The prosecution case is full of omissions, contradictions and improvements. It is contended that there was animosity between PWs.2 to 6 and - 7 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 the brother of accused in respect of construction of Samudaya Bhavana, where the houses of PWs.2 to 6 are located. It is contended that the accused is falsely implicated in the case. Further, the seizure of MO.1-Machu is planted and PWs.9 and 10 have not supported the case of the prosecution. The learned counsel submits that, if the Court comes to the conclusion that there is sufficient material, the Court may impose the provisions of The Probation of Offenders Act, 1958 and set aside the sentence passed by the Trial Court. On all these grounds, the learned counsel prayed to allow the appeal.

8. Sri. M.Divakar Maddur, learned High Court Government Pleader contended that the accused voluntarily trespassed to the house of PW.2 with MO.1-Machu, took quarrel with wife of PW.2 by pulling her legs, assaulted PWs.2, 3 and their son-Hemanth with MO.1-Machu. As PWs.4 to 6 came to rescue PWs.2 and 3, the accused also assaulted them with Machu and caused injuries. In this case, PWs.7 and 8, who are the independent eyewitnesses to the incident, have also supported the case of the prosecution. PWs.9 and 10, who are spot and seizure mahazar witnesses, in whose presence, mahazar was drawn and MO.1-Machu was seized, have also - 8 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 supported the case of the prosecution. The oral testimonies of PWs.2 to 8 are supported by the medical evidence. PW.1-Doctor has clearly stated the nature of injuries sustained by PWs.2 to 6. Further, the weapon used by accused is a dangerous weapon, therefore, Section 324 of IPC is applicable. The trial Court considering the overall material available on record, rightly came to the conclusion that accused has committed the offences. Hence, prayed to confirm the judgment and order passed by the trial Court.

9. Having considered the contention of the learned counsel appellant learned HGCP respondent-State, the following points that would arise for consideration of this Court are: "(i) Whether the prosecution proved its case beyond all reasonable doubt that, on 01.03.2007, during the midnight, the accused trespassed the house of PW.2, took quarrel with PWs.2 and 3, assaulted them with MO.1-Machu, caused injury and insulted them by touching their caste. Thereby, committed an offence? (ii) Whether the judgment of conviction and order of sentence passed by the trial Court is not in accordance with law. Thus, call for interference? (iii) What order?." - 9 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012

10. It is the case of the prosecution that, on 01.03.2007 during midnight i.e., 3:00.p.m, accused trespassed to the house of PW.2, took quarrel with PW.3 and assaulted them with MO.1-Machu. When PWs.4 to 6 intervened, they were also assaulted by accused with MO.1-Machu.

11. In order to prove this aspect, the prosecution examined PW.2-Shivamurthy-the injured witness. In his evidence, he has stated that on the day of the alleged incident, he, his wife and his son were sleeping in his house and at about 3:00.p.m, the accused entered the house, he was holding the hand of his wife. When he questioned the accused, he abused PW.2 by touching his caste and assaulted PWs.2 and 3 with MO.1-Machu thereby, caused bleeding injuries. The accused also assaulted their son-Hemanth, aged about four years. Hence, they raised hue and cry. In this regard, PWs.4 to 6 came to the house of PW.2 and objected the act of accused. Thus, accused also assaulted them with MO.1-Machu. Thus, they sustained bleeding injuries. In the meanwhile, PWs.7 and 8 came to the house of PW.2 and pacified the quarrel. Thereafter, they were shifted to Ramanagar Government - 10 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 Hospital for treatment and on the following day i.e.,

02.03.2007, PW.2 lodged a complaint vide Ex.P.7.

12. During the cross-examination, nothing worthwhile had been elicited from the mouth of PW.2 and he accepts some admissions with regard to animosity between the brother of accused and the local persons, who are residing in the same locality as to the construction of Samudaya Bhavana.

13. PW.3-Gowramma, wife of PW.2-injured witness, has stated in line with PW.2 and has corroborated PW.2's oral testimony.

14. PWs.4 to 6, who are also injured witnesses, have stated that, on hearing hue and cry from the house of PWs.2 and 3, they came to the house of PW.2, objected the act of accused and they too sustained simple injuries on their persons with MO.1-Machu, by the accused. The oral testimonies of PWs.2 to 6 have not been shaken by the accused in their cross-examination, rather their testimonies corroborates to the extent that the accused entered the house, outraged the modesty of PW.3 and assaulted with MO.1-Machu and caused - 11 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 simple injuries. They also corroborates that the accused insulted PWs.2 and 3 by touching their caste.

15. PWs.7 and 8, who are the eyewitnesses to the incident, have stated that during the midnight of 01.03.2007, the accused quarreled with PWs.2 and 3 and insulted them by touching their caste and also assaulted with MO.1-Machu and caused injuries to PWs.2 to 6. To that extent, their oral testimonies corroborates with each other.

16. In order to corroborate with the oral testimonies of PWs.2 to 8, PW.1-Doctor is examined. In his evidence, he has stated that PWs.2 to 6 came with the history of assault. Thus, he examined and found the following injuries: PW.2-Shivamurthy

1. Lacerated injury over the right upper arm, measuring 2 cms x 0.5 cms x 0.5 cms, clotted blood present.

2. Lacerated injury over the right lower arm, measuring 3 cms x 0.5 cms x 0.5 cms.

3. Tenderness over the left side of chest. - 12 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 Hemanth (S/O. PWs.2 and.3)

1. Lacerated injury over the left lower arm near elbow, measuring 3 cms x 1 cms x 0.5 cms.

2. Tenderness over the Right side of scalp. PW.4-Raju

1. Lacerated injury over the right ear, measuring 8 cm x 2 cm x 1 cm, bleeding present.

2. Abrasion over the right thigh, measuring 3 cm x 2 cm. X-ray Right leg No. 97, Date 13.3.07 no fracture seen. PW.5-Manchaiah

1. Lacerated injury over the left middle finger, measuring 3 cms x 0.5 cms x 0.5 cms.

2. Abrasion over the left thigh, measuring 10 cms x 0.5 cms. X-ray - Left Leg No. 85 / 2.7.07 No fracture seen. PW.6-Jayamma

1. Lacerated injury over the right Thumb, measuring 4 cms x 0.5 cms x 0.5 cms. - 13 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012

17. Accordingly, he issued wound certificates as per Exs.P.1 to 5 to PWs.2 to 6.

18. PW.9-Mahadevaiah and PW.10-Manjunath are witnesses to spot and seizure mahazar. In their presence, MO.1-machu was seized, which was used by the accused.

19. PW.11-B.Mallikarjunappa was the Dy.S.P, who conducted investigation and filed charge sheet against the accused.

20. PW.12-Sriharsha was the PSI, who received the complaint, registered the case and partly investigated the matter. ANALYSIS

21. On a perusal of the material available on record, it appears that PWs.2 to 6 in categorical terms have stated that, accused trespassed the house of PW.2, outraged the modesty of PW.3 and when PW.2 raised objections, the accused assaulted PWs.2 to 3 and later, assaulted PWs.4 to 6 and PWs.7 and 8 are the eyewitnesses to the incident. No doubt PWs.2 to 6 are the family members, but their testimonies are - 14 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 corroborative in nature and they have clearly stated that the accused assaulted PWs.2 to 6 with MO.1-Machu and caused bleeding injuries vide Exs.P.1 to 6. Therefore, there is no corroborative evidence with regard to injured witnesses sustaining injuries on their person by the accused. The trial Court considering all these aspects of the matter, convicted the accused for the aforesaid offences.

22. Learned counsel for the appellant contended that the provision of Section 3(i)(x)(xi) of SC / ST (POA) Act, 1989 is not proved by the prosecution, since the Tahashildar, who issued Ex.P.9-Caste certificate has not been examined.

23. In order to attract Section 3(i)(x)(xi) of SC / ST (POA) Act, 1989, the prosecution has alleged that the accused insulted PWs.2 and 3 by touching their caste and hence, the accused committed the offence against the member of Scheduled Caste. In this regard, the prosecution relied upon Ex.P.9-Caste Certificate issued by CW.12-Tahsildar. But, the Tahsildar is not examined before the Court and the trial Court has not at all issued any summons for examination of CW.12. - 15 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012

24. From the perusal of the entire order sheet maintained by the Special Court, it clearly establishes that the prosecution never attempted with regard to issuance of summons to CW.12. In the case of STATE OF KARNATAKA v. SHARIFSAB @ SHARFANNA in Criminal Appeal No.1522 of 2016 connected with Criminal Appeal no.1530 of 2016 disposed on 10.03.2023 held that the accused cannot be guilty of offence punishable under Section 3(i)(x)(xi) of SC / ST (POA) Act, 1989, by mere production of Caste Certificate. This opinion is also fortified by the dictum of the Hon'ble Apex Court in the case of HITESH VERMA v. STATE OF UTTARAKHAND AND ANOTHER, reported in (2020) 10 SCC 710 and therefore, conviction of accused under Section 3(i)(x)(xi) of SC / ST (POA) Act, 1989 is not sustainable in law.

25. As per the evidence of prosecution witnesses and the charge sheet material, there is dispute with regard to construction of Samudaya Bhavana and PWs.2 to 8 are belonging to the same community and are residing in same locality. Learned counsel for the appellant submitted that the matter pertains to the year 2007 and accused and PWs.2 to 8 are residing in the same locality with harmonious relationship. - 16 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 Thus, prayed to extend the benefit of provisions of The Probation of Offenders Act, 1958. Considering the facts that the accused and PWs.2 to 8 are residing in the same locality, the accused is an agriculturist and he is only bread earner of his family and also considering the mitigating circumstances, the injuries sustained by PWs.2 to 6 and considering the fact that the accused is a first time offender, it is just and proper to reduce sentence of imprisonment from one year to six months for the offences punishable under Sections 354 and 324 of IPC. So far as trespass made by the accused under Section 448 of IPC is confirmed. Hence, to that extent, the judgment of conviction and order of sentence passed by the trial Court is liable to be modified. Hence, I proceed to pass the following: i) ii) ORDER The appeal is allowed in-part. The judgment of conviction and order of sentence passed by learned District and Sessions Court, Ramanagara,

03.10.2012 in Special Case No.184/2007 is modified. - 17 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 iii) The sentence of imprisonment imposed against the accused is reduced from one year to six months with fine of Rs.2,000/- each for the offences punishable under Sections 354 and 324 of IPC. iv) The sentence of imprisonment imposed against the accused for the offence punishable under Section 448 of IPC is confirmed. v) The accused is directed to deposit a sum of Rs.10,000/-(Rupees Ten Thousand Only) before the trial Court, payable to PWs.2 and 3 respectively, within two months and in default, he shall undergo simple imprisonment for a period of six months. vi) The accused is acquitted of the offence punishable under Sections 3(i)(x)(xi) of SC / ST (POA) Act, 1989. vii) All sentences shall run concurrently. - 18 - NC: 2024:KHC:38957 CRL.A No. 1188 of 2012 viii) The period already undergone appellant/accused is given set off under Section of 428 of Cr.P.C. ix) Registry to send a copy of the judgment along with trial Court records to the trial Court, forthwith. Sd/- (VENKATESH NAIK T) JUDGE PHM List No.: 1 Sl No.: 1