JUDGMENT : This is an appeal filed by the accused persons against the judgment of conviction and sentence passed by the learned Special III Additional Sessions Judge, Belgaum, dated 17.09.2010, in Special Case.No.35/2010 for the offences punishable under Sections 323, 353, 504, 506 read with Section 34 of Indian Penal Code and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as ‘the SC & ST Act’ for short). 2. Briefly stated the facts of the prosecution case are that, the complainant was working as Sanitary Supervisor in Athani Municipality. On 10.12.2009 at about 9.45 a.m., while he was on duty of supervising the cleaning work in the Market area. He received a message from Municipality helpline from PW.7-Shri Somaling M Odeyar. He informed him that, the accused – appellants had asked him to remove the garbage fallen in-front of their shop. PW.1 went near the shop of accused and found that, the garbage was of building stones, mud and sand not a garbage to be cleaned by Municipality. Therefore the complainant -PW.1 asked the accused – appellants to remove the said stones and other materials as the municipality will not take away the same. But the accused insisted the complainant to remove the same. At that time, the appellants dragged the complainant from his motor cycle and abused him in filthy language by abusing “Bhosadi Makkaliry Municpality awarige estu sokka Bandiruttade Holya Sooli Magane”. Accused No.1 slapped the complainant on his left cheek and chest and accused No.2 assaulted on his stomach and gave threat of his life. PW.1 who is a member of Scheduled Caste. Therefore, the complainant filed a complaint before the jurisdictional Police, alleging assault, caste abuse and threat to his life. 3. The concerned Police registered the case in Crime No.477/2009 against the accused for the offences punishable under Sections 323, 353, 504, 506 read with Section 34 of IPC and Sections 3(1)(x) of the SC & ST Act. 4. The Deputy Superintendent of Police, Chikodi, Sub-Division, took up the further investigation of the case. On 11.12.2010. The Investigating Officer visited the scene of offence and conducted the spot panchanama in the presence of panchas. A rough-sketch was drawn. On the same day recorded the statements of the witnesses. Accused No.2 was arrested and produced before the jurisdictional Court and he was remanded to judicial custody. On 11.12.2010. The Investigating Officer visited the scene of offence and conducted the spot panchanama in the presence of panchas. A rough-sketch was drawn. On the same day recorded the statements of the witnesses. Accused No.2 was arrested and produced before the jurisdictional Court and he was remanded to judicial custody. After completing the investigation, the Investigating Officer had filed charge sheet against the accused. 5. After filing the charge sheet, the cognizance of the alleged offences was taken by the Special III Additional Sessions Judge, Belgaum and the case was registered as Special Case No.35/2010. 6. Learned Special III Additional Sessions Judge, found the accused guilty of the offences punishable under sections 323, 353, 504, 506 read with Section 34 of IPC and Sections 3(1)(x) of the SC & ST Act. Consequently, the impugned judgment of conviction and sentence was passed. Accused were sentenced to suffer simple imprisonment of six months with fine for each of the offences punishable under Sections 323, 353, 504 and 506 read with Section 34 of the Indian Penal Code. The accused were also sentenced to undergo simple imprisonment for six months with fine for the offence punishable under Section 3(1)(x) of the SC & ST Act. The said judgment of conviction and sentence has been challenged by the appellants – accused before this Court, on the following grounds : a) The judgment of the Trial Court is contrary to law, evidence, facts and material available on record. The trial Court has not properly appreciated the relevant facts of the case or evidence on record. There is no evidence to show that PW.1 was on official work on the date of incident. There is no evidence to show that he was restrained from discharging his duty. The complainant himself was avoiding to discharge his official work and forcing the accused – appellants to clear the garbage lying in front of their shop. That is forthcoming from the evidence of PW.1 himself. (b) The Trial Court has failed to note that the evidence of PWs.1 to 3 and 6 would not make out any ingredients of the offence punishable under Sections 3(1)(x) of the SC & ST Act. There is no evidence to show that, the accused intentionally insult the complainant by touching his caste. Nowhere it is stated that the complainant was insulted or humiliated. There is no evidence to show that, the accused intentionally insult the complainant by touching his caste. Nowhere it is stated that the complainant was insulted or humiliated. The alleged eyewitnesses i.e., PWs.2, 3 and 6 are the interested witnesses. The complainant has filed a false case against the accused. The alleged offences under Sections 323, 353, 504, 506 R/w Section 34 of IPC are not at all proved. No independent witness has been examined by the Investigating Officer, even though, the incident is said to have taken in a busy market area. Therefore, the judgment of conviction and sentence is contrary to law, evidence and facts on record and it is liable to be set aside by allowing this appeal. 7. The learned counsel for the appellants submitted that the complainant had a transaction with the accused. He had purchased utensils on credit basis from shop of accused, when that loan was demanded a false case has been cooked up. No incident as such, has taken place. The Trial Court has not considered the Exs.D.1 to D.3, which was brought out in the evidence. Ingredients of alleged offences are not at all made out. After due deliberation and concoction, complaint came to be filed. There is a delay in submitting the FIR. Independent witnesses though available, have not been examined. Investigating Officer has not authorized on the date of incident, therefore he had no jurisdiction to conduct the investigation. The caste certificate has not been proved. In the sketch of scene of offence date has been inserted. No spot panchanama was conducted. Though hurt is said to have been caused to the complainant, doctor has not been examined to prove the same. There is no evidence to show that the complainant was discharging his duty as on the date of incident. When PW.1 did not know the caste of the accused nor accused know the caste of the complainant, question of abusing touching the caste would not arise. Therefore, he prayed to allow the appeal. 8. Learned Additional Government Advocate submitted that, presence of the accused Nos.1 and 2 at the place of incident is admitted and it is proved by the evidence also. There is no reason to disbelieve the evidence of complainant and eyewitnesses. There is no delay in filing the FIR. Investigating Officer was duly authorized to conduct the investigation on the date of investigation. There is no reason to disbelieve the evidence of complainant and eyewitnesses. There is no delay in filing the FIR. Investigating Officer was duly authorized to conduct the investigation on the date of investigation. There is no procedural lacuna as such. The guilt of the accused has been proved beyond any reasonable doubt. Therefore he prayed to dismiss the appeal. 9. Learned counsel for the appellants replied that the Police Sub-Inspector who registered the case has not been examined. The defence made out by the accused is probable and believable, when both of them were not known their caste each other. Question of abusing the caste does not arise. General allegations are made. 10. The learned counsel further submitted that for having called the helpline, no records were produced. The version of PW.7 alleged to have received the call, is very doubtful. PW.9 has not spoken anything about the incident to show that the complainant was on duty on the date of incident, no records are produced. There are no dates on the statement of witnesses to show that they were examined on any day. Neighboring shop owners have not been examined. In the spot panchanama the alleged waste materials said to have been stored in-front of the shop of the accused have not been seized. They were also not found in the photographs produced by the prosecution. So, the material which was very cause for the incident, itself has not been produced. Even according to the prosecution the alleged eyewitnesses have come to the spot after the incident. They never say that they were present at the spot. In what way the duty of the complainant was obstructed is not at all stated in the evidence. No injuries are there on any part of the body of the complainant. There is material variance, contradictions in the evidence of the prosecution witnesses. It is a concocted case. Hence, the case of the prosecution is not at all proved beyond any reasonable doubt. Hence, the appellants have prayed to allow the appeal. 11. On the basis of the above said arguments, the following points that would arise for my consideration. 1. There is material variance, contradictions in the evidence of the prosecution witnesses. It is a concocted case. Hence, the case of the prosecution is not at all proved beyond any reasonable doubt. Hence, the appellants have prayed to allow the appeal. 11. On the basis of the above said arguments, the following points that would arise for my consideration. 1. Whether the prosecution had proved beyond any reasonable doubt before the Trial Court that on the date, time and place of the incident, accused Nos.1 and 2 under a common intention had voluntarily caused hurt to PW1 and thereby committed an offence punishable under Section 323 read with section 34 of IPC? 2. Whether the prosecution had proved beyond any reasonable doubt before the Trial Court that on the date, time and place of the incident, accused Nos.1 and 2 under a common intention obstructed PW1 in discharging his official duty and thereby committed an offence punishable under Section 353 read with section 34 of IPC? 3. Whether the prosecution had proved beyond any reasonable doubt before the Trial Court that on the date, time and place of the incident, accused Nos.1 and 2 under a common intention, abused PW.1 in filthy language and insulted him and thereby committed an offence punishable under Section 504 read with section 34 of IPC? 4. Whether the prosecution had proved beyond any reasonable doubt before the Trial Court that on the date, time and place of the incident, accused Nos.1 and 2 under a common intention threatened PW.1 to with injury to his life by saying “Holka Sooli Magane, Ninna Jeeva Sahita Biduvudilla” and thereby committed an offence punishable under Section 506 Part-II read with section 34 of IPC? 5. Whether the prosecution had proved beyond any reasonable doubt before the Trial Court that on the date, time and place of the incident, accused Nos.1 and 2 under a common intention, not being the members of Scheduled Caste or Schedule Tribes, knowing fully well that the complainant is a member of Schedule Caste, abused him by touching his caste and thereby caused intentional insult to him and has committed an offence punishable under Section 3(1) (x) of SC & ST Act read with section 34 of IPC? 12. Hurt is defined in simplest words, that is causing bodily pain, disease or infirmity to any person. That is defined as “hurt”. 13. 12. Hurt is defined in simplest words, that is causing bodily pain, disease or infirmity to any person. That is defined as “hurt”. 13. Voluntarily causing hurt means, any act done with an intention of causing hurt to any person or with knowledge that he is likely thereby to cause hurt to any person, and causes hurt to any person is said “voluntarily to case hurt”. 14. On perusal of the evidence of complainant PW.1 and witnesses PWs.2, 3 and 6, goes to show that these accused persons assaulted PW.1 while he was sitting on his motorcycle, pulled him and beat him on his chest and cheek. To disbelieve the evidence of theses witnesses, the defense has made out sole defense that the complainant had purchased utensils from the shop of Accused No.1. When money was demanded for that, this false case has been cooked up. That suggestion has been denied by the complainant specifically. The doubt, that the accused want to raise should be a reasonable doubt. In other wards there should be some probability in the defense taken by the accused. No doubt, accused No.1 is having a shop at the scene of offence, that alone is not sufficient to draw an inference that, the complainant had taken utensils on credit basis. 15. It is important to note that the quantum of utensils sold, the value of goods sold and amount due from the complainant have not at all been suggested to PW.1. No such plausible explanation was stated by the accused, when the incriminating circumstances were put to him under Section 313 of Cr.P.C. The evidence told by PW.1 has been corroborated by the evidence of PWs.2, 3 and 6. The evidence is sought to be disbelieved on the ground that the witnesses belong to the caste of complainant and they were not present at the time of incident. 16. On perusal of the evidence of PWs.2, 3 and 6 that goes to show that, they are the poura karmikas in the municipality of Athani. On that day, they were also doing their duty of cleaning the street near the shop of accused. Therefore, their presence is natural. Merely because, they belong to caste of the complainant or the workers of municipality itself would not make their evidence unbelievable. On that day, they were also doing their duty of cleaning the street near the shop of accused. Therefore, their presence is natural. Merely because, they belong to caste of the complainant or the workers of municipality itself would not make their evidence unbelievable. No admission or contradiction is elicited in the evidence of above referred witnesses, so as to raise a reasonable doubt in the mind of the Court. Therefore, voluntarily causing hurt by the accused persons as stated by the above said witnesses corroborated by the by the documents like complainant–Ex.P.1, Photos-Ex.P.2, spot Panchanama–Ex.P.3 and Ex.P.7-the wound certificate. Therefore, I find that the prosecution had proved beyond any reasonable doubt that, these accused persons voluntarily caused hurt to PW.1. 17. Looking at the nature of assault with pale hands, one cannot be expected to have medical evidence. However, there is wound certificate at Ex.P.7, which would corroborate suffering of hurt by the PW.1. 18. PWs.2, 3 and 6 have categorically stated that, the accused abused them in filthy words, which also caste abuse. Reason for the incident is that, there was a heap of garbage in front of the shop of accused, a complaint was given to the municipality over a phone to remove the same. Therefore, the complainant and poura karmikas had come. After finding that, the heap of garbage was that of building material. The complainant asked accused to remove them by themselves, as the garbage not to be removed by the municipality. It is in that context, the quarrel is said to have taken place. The same has been narrated by other witnesses also. Hence, I find that the reason does not appear to be a concocted or created one, just for the sake of filing a case. 19. When accused No.2 himself says that the complainant had taken utensils from his shop on credit basis, then he must have been knowing the complainant and his caste. Therefore knowing fully well, that the complainant belongs to a Scheduled Caste, the abuses have been hurdled by touching the caste which definitely attracts section 3(1)(x) of SC & ST Act. The said fact has also been corroborated by the evidence of other witnesses. It is only after hearing the voice of the complainant the nearby workers rushed to the spot and got him rescued. 20. The said fact has also been corroborated by the evidence of other witnesses. It is only after hearing the voice of the complainant the nearby workers rushed to the spot and got him rescued. 20. Regarding spot panchanama there is evidence of PW.1 and also pancha witness-PW.5 and that of the Investigating Officer and which is also corroborated by the sketch of the scene of offence at Ex.P.8 drawn by the Engineer of Public Works Department. For having complained to the municipality regarding removal of garbage also, I find in the evidence of PW.7, admittedly PW.1 is the Sanitary Supervisor. Therefore, I find that the cause for the incident is also proved by the prosecution. 21. The evidence of PW.9 – Chief Officer of the municipality, also proved that the complainant was the employee of the Municipality and he was on duty on the date of incident (Ex.P.4). Nothing much is elicited in the cross-examination of the PW.1, so as to raise reasonable doubt to discard their evidence and acquit the accused. The filthy words used by the accused would also attract the causing of intentional insult in public place so as to cause breach of peace. Therefore, ingredients of Section 504 are also proved. 22. Next ground on which the defence wants to disbelieve the evidence of PWs.2, 3 and 6, is Exs.D.1 to D.3. Under Ex.D.1, it is elicited PW.2 has not stated before the Investigating Officer that, the incident happened on 11.12.2009. According to the prosecution, incident occurred on 10.02.2009. The Investigating Officer specifically explained in his cross-examination that while noting down, he himself has wrongly noted the date. Therefore, Exs.D.1 to D3 do not disprove the case of prosecution. In otherwords they are not sufficient to discard the evidence of eyewitnesses. The other ground on which the defnece to disbelieve the case of prosecution is that, the garbage of the building materials, for which the incident has occurred, have not been seized. The incident commenced on account of removal of either garbage or building materials they were said to have been stored in front of the shop of the accused. Non seizure of the same, is not at all fatal to the case of the prosecution, moreover it may be mistake on the part of Investigating Officer. 23. The incident commenced on account of removal of either garbage or building materials they were said to have been stored in front of the shop of the accused. Non seizure of the same, is not at all fatal to the case of the prosecution, moreover it may be mistake on the part of Investigating Officer. 23. It is important to note that the mistake of Investigating Officer would not enure any benefit to the accused. There are catena of decisions on this point. Therefore, defence cannot take any advantage out of the said fact. The incident occurred when the complainant demanded the accused to remove the garbage or building materials or debris. The accused refused and asked municipality people to remove them, that how the incident occurred. 24. Another ground on which defence wanted to disbelieve the evidence of Investigating Officer is that, he was no authorized to make investigation immediately after the incident. The authorization given is at Ex.P.10. It was further submitted that, the date has been inserted in the said document. Whenever incident occurs, the investigation will commence after registering of the crime by the concerned jurisdictional police officer i.e., Police Sub-Inspector. Thereafter, the investigation regarding caste abuse will be commenced by the Deputy Superintendent of Police as required under Rule 7 of the SC & ST Rules. Therefore, I do not find any illegality as such, in the investigation. It does not prove the violation of Rules. Therefore, on re-appreciation of the evidence on record, I find that the prosecution has proved the guilt of the accused with regard to causing voluntarily hurt to PW.1 abusing him in filthy language, so as to cause public peace and cause intentional insult to him. 25. It is further proved that the accused under a common intention had abused the complainant by touching his caste i.e., schedule caste and thereby the prosecution had brought home the guilt of the accused for the offences punishable under Section 3(1)(x) of SC & ST Act read with section 34 of IPC. 26. There is specific evidence of PW.1 that the accused had threatened to kill him, if his people had not come to the spot. The evidence on record also proved that, the complainant was on duty on the date, time and place of incident. 26. There is specific evidence of PW.1 that the accused had threatened to kill him, if his people had not come to the spot. The evidence on record also proved that, the complainant was on duty on the date, time and place of incident. In fact he was made to come to the spot as the garbage stored in-front of shop of accused No.1 was not taken. The other witnesses had also gone there to do their duty, the fact that the complainant is a Supervisor he supposed to lookafter the garbage cleaning and supervising the poura karmikas is not disputed. In fact it is the accused who had given the complaint to the municipality over a phone for removal of the garbage. Therefore I find that the offence under Section 353 of the Indian Penal Code has also been proved beyond reasonable doubt, because the manner in which the assault is made would definitely deter any public servant from performing his duty. If the municipality people had refused to removal of the garbage, the accused could have gone to the office and filed a written complaint. Instead of that, they have taken law into their own hands. 27. Therefore, on re-appreciation of the entire evidence on record, I find that the guilt of the accused has been proved beyond any reasonable doubt. The defense of the accused does not appear to be probable or acceptable if that is not accepted then there are no reasons to disbelieve the evidence of the prosecution witnesses. Hence the learned Special (III Additional Sessions) Judge has rightly come to the conclusion and convicted the accused. 28. Therefore, this Court find that none of the grounds taken by the appellants in the appeal are substantiated. For all the aforesaid reasons, this Court answer all the points in the affirmative. Hence, this court proceeds to pass the following. ORDER (1) The appeal filed by the appellants/ accused is dismissed. The judgment and order of conviction dated 17.09.2010 passed by the Special (III Additional Sessions) Judge, Belgaum in Special Case No.35/2010 is hereby confirmed. (2) Office to send back the records to the trial court along with copy of this judgment.