Karnataka High Court
The State Of Karnataka vs Raghavendra S/O Eranna Rao on 29 November, 2022
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CRL.RP No. 100012 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.100012 OF 2016
BETWEEN:
THE STATE OF KARNATAKA,
(THROUGH POLICE SUB-INSPECTOR,
GANDHI NAGAR POLICE STATION,
BALLARI), REP. BY ADDL. STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING DHARWAD.
...PETITIONER
(BY SRI V.M.BANAKAR, ADDL. S.P.P)
AND:
1. RAGHAVENDRA S/O ERANNA RAO,
AGE : 24 YEARS, MAISON,
R/O BEHIND BOYAGERI
THIPPAIAH'S HOUSE, BALLARI.
2. GOPAL S/O OF ANJINAPPA
AGE : 26 YEARS,
CYCLE RICKSHAW DRIVER,
R/O RANITHOTA, BALLARI.
3. BHAN S/O ASLAM,
AGE : 26 YEARS,
SCRAP WORK, PINJAR STREET,
Digitally signed
by ROHAN
BESIDE JUMMA MOSQUE,
ROHAN HADIMANI T
HADIMANI Date:
T
BALLARI.
2022.12.16
11:36:10 +0530
4. MOHAMMED RAFEEQ S/O NANNE SAB,
AGE : 30 YEARS, AUTO DRIVER,
R/O BASAVANAKUNTE,
DEVINAGAR, BALLARI.
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CRL.RP No. 100012 of 2016
5. IMRAN HUSSAIN @ PAUL,
S/O SHAHABUDDEEN, AUTO DRIVER,
NEAR BIG VEGETABLE MARKET,
BALLARI, NOW R/O CHARAKUNTA VILLAGE
...RESPONDENTS
(BY SRI R.H.ANGADI, ADV. FOR R.1 TO 3 & 5)
(NOTICE TO R.4 : SERVED.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECITON 401 OF CR.P.C., SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED
CIVIL JUDGE (JR.DN.) AND JMFC., BALLARI IN C.C.NO.1993/2006
DATED 14.12.2010 AND ALSO SET ASIDE THE JUDGMENT AND
ORDER DATED 07.07.2015 PASSED BY THE LEARNED I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI IN CRL.A.NO.45/2011 IN
THE INTEREST OF JUSTICE AND EQUITY,.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 07.11.2022 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed by the State under Section 397 read with Section 401 of the Code of civil procedure seeking to allow this petition and set aside the judgment and order of acquittal dated 14.12.2010 passed in C.C.No.1993/2006 by the Principal JMFC., Bellary ("the "trial Court" for short) and judgment and order dated 07.07.2015 passed in Crl.A.No.45/2011 by the learned I Additional District & Sessions Judge, Ballari ("Appellate Court" for short).
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2. Parties are referred to as per their ranking before the Trial Court for the sake of convenience.
3. Brief facts of the prosecution case are that, the complainant in C.C.No.1993/2006 Arunachaleshwara filed a complaint that while he was going to SBM Bank, Raghavendra colony, Ballari in order to deposit an amount of Rs.4,28,810/- on his motor cycle and when the complainant was near the D.C. Compound, 2nd Cross at that time, accused came on the road and stopped the complainant and they tried to snatch the bag of the complainant containing the amount and when CW.1 refused to give the said bag at that time, accused No.1 assaulted CW.1 with the stick over the right side of the fore-head and caused bleeding injuries to him and also assaulted CW.6 who was sitting behind the complainant with stick over his left hand and caused injuries to him and forcibly he snatched away the said bag from the complainant. Thus the accused have committed the offence punishable under Section 120B and 394 of IPC. -4- CRL.RP No. 100012 of 2016 Accordingly, a complaint was filed by the complainant before the jurisdictional police. The Jurisdictional Police have registered the same in Crime No.154/2006 for the offence punishable under Sections 120B and 394 of IPC and after completion of their investigation, filed charge sheet in C.C.No.1993/2006.
4. After conducting the Trial, the Trial Court has acquitted the accused person on the sole ground that the prosecution has failed to prove the offences as alleged. Being aggrieved by the same, the State has preferred an appeal in Crl.A.No.45/2011 before the Appellate Court. The same came to be dismissed by the Appellate Court. Hence, the State again preferred this Criminal Revision Petition.
5. Sri V.M.Banakar, learned Additional State Public prosecutor has submitted his argument that, the Trial Court and the Appellate Court have not properly appreciated the evidence on record in accordance with law. If there is a delay in conducting identification parade -5- CRL.RP No. 100012 of 2016 cannot carry away the truth of the case. The contact between CW.1 and accused No.2 should not be sole reason to deny the delay in identification parade. PW.2 has supported the case of the prosecution and panchanama corroborated each other. The conspiracy by accused No.2 to commit offence cannot be discarded as accused No.2 and others together have involved in the offence. Proper presumptions have not been made and drawn by the appellate Court while disposing the appeal. On all these grounds, sought for allowing the criminal revision petition and convict the accused for the alleged commission of offences.
6. Learned counsel for the accused has submitted his argument that, during the course of cross-examination, seizure mahazar panch witnesses have not supported the case of the prosecution. The alleged incident is took place 19.09.2006 recovery has shown as 06.07.2006 after lapse of 18 days recovery panchanama is prepared and no prudent man can keep the incriminating materials for so -6- CRL.RP No. 100012 of 2016 long time for 18 days. Numbers of currency notes not shown in the complaint. There is an abnormal delay in filing the conducting in test identification parade. The Trial Court and the Appellate Court have properly appreciated the evidence on record and passed the impugned judgment and he supports the same. Hence, sought for dismissal of the criminal revision petition.
7. I have carefully gone through the oral evidence and materials placed by the prosecution, impugned judgments and submissions of both the parties.
8. On the basis of the charge sheet filed by the Investigating Officer, the Trial Court has taken cognizance for the alleged commission of offences punishable under Sections 120B and 394 read with Section 149 of IPC against accused Nos.1 to 5. Case was registered in C.C.No.1993/2006.
9. In pursuance of the summons accused appeared before the Trial Court. After hearing on the -7- CRL.RP No. 100012 of 2016 charges, the Trial Court has framed the charges against the accused for the alleged commission of offences. Having understood the same, the accused has pleaded not guilty and claims to be tried.
10. To prove the case of the prosecution, the prosecution has examined 15 witnesses as PWs.1 to 15, got marked 27 documents as Exs.P.1 to 27 and 14 material objects were also marked as MOs.1 to 14. On closure of prosecution side evidence, the accused were questioned under Section 313 of Cr.P.C. as to the incriminating circumstances appearing against them. The accused have totally denied the evidence of prosecution witnesses. But they have not chosen to lead any defence evidence on their behalf. But during the course of cross- examination of prosecution witnesses, two documents were marked as Exs.D.1 to D.2.
11. On hearing the arguments, the Trial Court has acquitted the accused in C.C.No.1993/2006 dated 14.12.2010. Being aggrieved by the judgment of acquittal, -8- CRL.RP No. 100012 of 2016 the State has preferred an appeal before the Appellate Court in Crl.A.No.45/2011. The Appellate Court also dismissed the said appeal on 07.07.2015. Being aggrieved by the judgments passed by the Courts below i.e., the judgments of acquittal the State has preferred this criminal revision petition.
12. The Appellate Court at paragraph No.41 of its judgment passed in Crl.A.No.45/2011 has observed as follows;
"Considering the materials that are placed before me and taking into consideration the judgment of the trial Court and the evidence relied upon by the prosecution, I am of the opinion, that the trial court has rightly taken in consideration the inconsistencies, contradictions, omissions and the improvements that are made in the prosecution story and has rightly come to the conclusion in holding that the prosecution has failed to prove the commission of the offences by the accused. Hence, I do not find any merit in the contention taken by the learned P.P for the State, stating that the judgment of acquittal passed by the trial court is against law and it is liable to be set aside and the accused are fit to be convicted. Accordingly, I answer point No.1 in the negative and against the prosecution."-9- CRL.RP No. 100012 of 2016
13. On re-appreciation of the evidence on record, I do not find any cogent convincing, corroborative and trustworthy evidence to substantiate the case of the prosecution. The Courts below have properly appreciated the evidence on record and come to the conclusion that the evidence placed by the prosecution creates reasonable doubt about alleged act of the accused. Considering the same, the Trial Court has acquitted the accused and the same is also confirmed by the Appellate Court.
14. Apart from this I have gone through the recent judgments of the Hon'ble Apex Court in case of Joseph Stephen and others Vs. Santhanasamy and others in Crl.A.Nos.90-93/2022. The Hon'ble Apex Court has formulated the question, Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?
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CRL.RP No. 100012 of 2016
15. In this regard the Hon'ble Apex Court has referred the decisions in the case of K.Chinnaswamy Reddy Vs. State of Andhra Pradesh reported in AIR 1962 SC 1788, Sheetal Prasad Vs. Sri Kant reported in (2020) 2 SCC 190, Ganesha Vs. Sharanappa reported in (2014) 1 SCC 87 and Ram Briksh Singh Vs. Ambika Yadav reported in (2004) 7 SCC 665. In paragraph No.9 of the judgment in Crl.A.No.90-93/2022, the Hon'ble Apex Court held as under:
"Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-Section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be. As observed by this Court in the case of K.Chinnaswamy Reddy (Supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options
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available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph No.11 of the decision in K.Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. the order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C issued No.1 is answered accordingly."
16. In view of the above said judgment, the Hon'ble Apex Court, this Court while exercising its revisional jurisdiction under Section 401 of Cr.P.C cannot convert acquittal into conviction. Accordingly, the impugned judgment challenged by the State does not suffer from any legal infirmities and hence this Court proceed to pass the following :
ORDER The criminal revision petition filed by the State is hereby dismissed.
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The judgments passed by the Trial Court and Appellant Court are hereby confirmed.
Registry is directed to transmit the
Records along with copy of this order.
Sd/-
JUDGE
EM
List No.: 1 Sl No.: 14