John Peter s/o Mariyadas, Mani alias Arulappan s/o Albudhaswamy, Alexander s/o Susamaniyar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942** ## **CRL.A.No.2181 OF 2005** **AGAINST THE ORDER/JUDGMENT IN SC 408/2002 DATED 25-11-2005 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD** ## **APPELLANTs/ACCUSED NOS.1,2,& 4:** **1 JOHN PETER S/O.MARIYADAS, KUNDARAMPALAYAM,, KOZHINJAMPARA.** **2 MANI @ ARULAPPAN, S/O.ALBUDHASWAMY,, KUNDARAMPALAYAM, KOZHINJAMPARA.** - **3 ALAXANDER, S/O.SUSAMANIYAR, THIRUNATTIPPALLAM,, KUNDARAMPALAYAM, KOZHINJAMPARA.** **BY ADVS. SRI.PRASUN.S SRI.PRASUN.S** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM.** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT.POOJA PANKAJ FOR APPELLANT,SRI.K.B.UDAYAKUMAR, SR.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-10-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** 2 **CRL.A.No.2181 OF 2005)** ## **JUDGMENT** ## **Dated this the 6[th] day of October, 2020** The appellants are accused Nos.1, 2 & 4 in S.C. No. 408/2002 on the file of the Sessions Court, Palakkad. (hereinafter the accused are mentioned in accordance with their rank before the lower court). The Assistant Superintendent of Police, Palakkad filed chargesheet against the appellants and four others, alleging offences punishable under Sections 143, 147, 448, 429, 341, 323 and 506(ii) IPC r/w Section 149 IPC. The offence under Section 3 (1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 (for brevity The Act 1989). 2. The prosecution case is that PW2 belongs to 'Cheruma' community and a member of Scheduled caste. Accused do not belong to any of the Scheduled Caste or Scheduled Tribe community. It is alleged that on 21.10.1999 at 12 'o' clock noon, the accused in this case formed themselves into an unlawful assembly with the common object of which was to cause hurt to PW2 as he had expressed his difference of opinion regarding the entrustment of construction work of 3 **CRL.A.No.2181 OF 2005)** road to contractors. Hence, the accused were on enmity towards him. According to the prosecution, the accused in prosecution of the common object of the unlawful assembly, on the said date and time criminally trespassed into the building bearing door No.VII/645 situated at Pazhaniyarpalayam within Kozhinjampara Panchayath where PW2 was residing with his family. The first accused caught at the shirt of PW2 and brought him to the court yard. Fourth accused kicked PW2 and slapped at his face. Accused Nos.5 & 7 caught the hands of PW1 and unlawfully restrained him. The sixth accused fisted PW2 and caused hurt to PW2. The third accused smashed the windowpane in the building of PW2 by throwing a stone. It is also alleged that the mother of PW2 intervened and the fourth accused pushed her down. According to the prosecution, the second accused called the caste name of PW2 in public view and uttered obscene words to annoy him and criminally intimidated PW2 by threatening to do away with him. According to prosecution, the accused intentionally insulted and intimidated PW2 with an intent to humiliate him within public view because he was a member of a scheduled caste. Thus the accused committed the offence. 4 **CRL.A.No.2181 OF 2005)** 3. To substantiate the case, the prosecution examined PW1 to PW16. Exts.P1 to P14 were marked on the side of the prosecution. M.O.1 and M.O.2 are the material objects. One witness was examined on the side of the defence. 4. After going through the evidence and documents, the trial court found that accused Nos. 3,5,6 & 7 are not guilty. Accordingly they were acquitted. Accused No.1,2,&4 were found guilty for the offences punishable under Sections 448, 427, 323, and 506 (ii) IPC. The second accused was found guilty under Section 3 (1) (x) of the Act 1989. Accused Nos.1,2,&4 were sentenced to undergo rigorous imprisonment for three months each for the offences under Sections 323, 427 & 448 IPC. They were also sentenced to undergo rigorous imprisonment for six months each for the offence under Section 506 (ii) IPC and to pay a fine of Rs.3,000/- each and in default of payment of fine, they were directed to undergo simple imprisonment for three weeks. The second accused was sentenced to undergo rigorous imprisonment for six months under Section 3 (1) (x) of the Act 1989. He is also directed to pay a fine of Rs.5,000/-. In default of payment of fine, he was also directed to undergo simple imprisonment for one month. 5 **CRL.A.No.2181 OF 2005)** Aggrieved by the above conviction and sentence, this Crl.Appeal is filed by accused Nos. 1,2 & 4. 5. Heard the counsel for the appellants and the learned Public Prosecutor. 6. The counsel for the appellants submitted that even if the entire allegations are accepted, the offence under Section 3 (1) (x) of the Act 1989 is not attracted. The counsel submitted that the admitted prosecution case is that the accused trespassed into the house of PW2 and attacked him. According to the prosecution witnesses, the second accused uttered the humiliating words to insult PW2 from his house. The counsel submitted that this will not attract the offence under Section 3 (1) (x) of the Act 1989. The counsel also submitted that even if the entire allegations are accepted, the offences under Sections 448, 427, 323 & 506(ii) IPC are not made out. According to the counsel there is no independent corroboration to the witnesses. The counsel submitted that there is only the interested testimony of PW2 and PW4 who are brothers. The counsel submitted that all independent witnesses cited by the prosecution were turned hostile. Hence the counsel submitted that the appellants who are accused Nos.1,2 & 4 are also 6 **CRL.A.No.2181 OF 2005)** entitled the benefit of doubt. 7. The Public Prosecutor submitted that the prosecution is able to prove the offences under Sections 448, 427, 323 and 506 (ii) IPC. The Public Prosecutor also submitted that there is evidence to show that the accused committed the offence under Section 3 (1) (x) of the Act 1989. The Public Prosecutor submitted that admittedly, PW2 belongs to Scheduled Caste community and the accused were not members of Scheduled Caste community. Therefore, the Public Prosecutor submitted that the offence under the Act 1989 is made out. 8. The points for consideration in this Crl.Appeal are the following: - (1)Whether the accused committed the offence under Section 3(1) (x) of the Act 1989. - (2) Whether the accused committed the offences under Section 448, 427, 323 and 506(ii) IPC. - (3)Whether the sentence imposed by the trial court is correct or not. 9. To attract the offence under Section 3(1) (x) of the Act 1989, certain ingredients are necessary. For understanding the provision it is better to extract Section 3(1) (x) of the Act 1989. 7 **CRL.A.No.2181 OF 2005)** _**“Section 3 in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.** 3. Punishments for offences of atrocities.—_ _(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,—_ _(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”_ 10. To attract the offence, the following ingredients are necessary. (i) accused should not be a member of Scheduled Caste/Scheduled Tribe. (ii) He should intentionally insult or intimidate with intent to humiliate a member of Scheduled Caste or Scheduled Tribe. (iii) The humiliation should be at any place within public view. This point is considered by this Court ## in **E.K.Nayyanar v. M.A.Kutrtappan (1997 KHC 66).** This court considered this point in detail. The relevant paragraphs are extracted hereunder. _“12. A reading of S.3 shows that two kinds of insults against the member of a Scheduled Caste or Scheduled Tribe are made punishable – one as defined under subs.(ii) and the other as defined under sub-s.(x) of the said section. A combined reading of the two subsections shows that under sub-s.(ii) insult can be caused to a member of the Scheduled Caste or Scheduled Tribe by dumping excreta, waste matter,_ 8 ## **CRL.A.No.2181 OF 2005)** _carcasses or any other obnoxious substance in his premises or neighborhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under sub-s.(x) insult can be caused to the person insulted only if he is present in view of the expression “in any place within public view”. The words “within public view”, in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in sub-s.(ii) of S.3 of Act 33/1989. By avoiding to use the expression “within public view” in sub-s.(ii), the Legislature, I feel, has created two different kinds of offences – an insult caused to a member of the Scheduled Caste or Scheduled Tribe, even in his absence, by dumping excreta etc in his premises or neighborhood and an insult by words caused to a member of the Scheduled Caste or Scheduled Tribe “within public view” which means at the time of the alleged insult the person insulted must be present as the expression “within public view” indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in sub-s.(ii) or would have used the expression “ in any public place”._ _13. Insult contemplated under sub-s.(ii) is different from the insult contemplated under sub-s.(x) as in the former a member of the Scheduled Castes or Scheduled Tribe gets insulted by the physical act and whereas in the latter he gets insulted in public view by the words uttered by the wrong doer for which he must be present at the place._ _18. As stated by me earlier the words used in sub-s. (x) are not “in public place”, but “within public view” which means the public must view the person being_ 9 **CRL.A.No.2181 OF 2005)** _insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner.”_ 11. In the light of the above dictum, it is clear that the offence should take place within public view. In this case, the admitted prosecution case is that the incident happened inside the house of PW2. PW2 or PW4 has no case that the place from where the third accused uttered the objectionable words was within public view. Even according to PW4, the witnesses were reached the place only after the incident. As I said earlier, PW2 or PW4 has no case that the second accused uttered the objectionable words in a place within public view. In such circumstances, the offence under Section 3 (1) (x) of the Act 1989 is not attracted. In such circumstances, the third accused is entitled acquittal under Section 3 (1) (x) of the Act 1989. As far as the offences under Sections 448, 427, 323 and 506 (ii) IPC, there is strong evidence to prove the same. PW2 and PW4 deposed in clear words that the accused Nos.1,2,& 4 trespassed into the house and committed mischief. It is also proved through the evidence of PW1 doctor coupled with Ext.P1 wound certificate that the PW2 sustained injury. This will prove 10 **CRL.A.No.2181 OF 2005)** the offence under Section 323 IPC. Moreover, the ingredients of Section 506(ii) IPC and Section 427 IPC is also made out in this case in the light of clear oral evidence adduced by PW2 and PW4 and other documentary evidences. Therefore I see no reason to interfere with the conviction and sentence imposed on the appellants under Sections 448, 427, 323 and 506(ii) IPC. 12. Now, what remains is the sentence. The trial court imposed substantive sentence to the accused. The alleged incident in this case happened on 21.10.1999. Now about 21 years elapsed. At this distance of time it will be injustice if the appellants in this appeal are send to jail. I think the sentence of fine will be sufficient in the facts and circumstances of the case with a direction to pay compensation to PW2. Hence, this Crl.Appeal is allowed in part. - (i) The conviction and sentence imposed on the second appellant/2nd accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 is set aside. - (ii) The conviction of the appellants for the offences under Sections 448, 427, 323 and 506 (ii) IPC is confirmed. The sentence imposed on the appellants for the offences under Sections 448, 427, 323 & 506 (ii) IPC is set aside. 11 **CRL.A.No.2181 OF 2005)** (iii) The appellants are directed to pay fine of Rs.1,000/- each for the offence under Section 448 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for one week. (iv)The appellants are directed to pay a fine of Rs.3,000/each for the offence under Section 506 (ii) IPC. In default of payment of fine, the accused are directed to undergo simple imprisonment for three weeks. (v).The appellants are directed to pay a fine of Rs.1,000/each for the offence under Section 323 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for one week. (vi)The appellants are directed to pay a fine of Rs. 2,000/each under Section 427 IPC. In default of payment of fine, they are directed to undergo simple imprisonment for 15 days. If the fine amount (Rs.7000x3=Rs. 21,000/-) is realised, an amount of Rs.15,000/- will be paid to PW2 as compensation. ## **P.V.KUNHIKRISHNAN JUDGE** al/-