Karnataka High Court
Sri Yuvaraj vs State By Soraba Police on 24 February, 2023
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CRL.RP No. 150 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL REVISION PETITION NO. 150 OF 2019
BETWEEN:
1. SRI. YUVARAJ
AGED ABOUT 36 YEARS
S/O SHIVAPPA
2. SRI. BASAVARAJ
AGED ABOUT 30 YEARS
S/O SHIVAPPA
3. SMT. LALITHAMMA
AGED ABOUT 33 YEARS
W/O BASAVARAJ
4. SMT. TULASAMMA
AGED ABOUT 38 YEARS
W/O PRAKASH
ALL ARE R/A OTTURU VILLAGE,
SORABHA TALUK,
SHIVAMOGGA DISTRICT,
Digitally PIN-577 429.
signed by
SUMA ...PETITIONERS
Location: (BY SRI. SURESH S., ADVOCATE)
HIGH COURT
OF AND:
KARNATAKA
STATE BY SORABA POLICE.
SHIVAMOGGA DISTRICT,
REP. SPP,
HIGH COURT COMPLEX,
BANGALORE.
...RESPONDENT
(BY SRI. KRISHNAKUMAR K.K., HIGH COURT GOVERNMENT
PLEADER)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
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CRL.RP No. 150 of 2019
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
14.12.2018 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.25/2017 BY
CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE
DATED 15.03.2017 PASSED BY THE CIVIL JUDGE AND J.M.F.C.,
SORABA IN C.C.NO.554/2012.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have challenged the judgment of conviction dated 15.03.2017 and consequent order of sentence dated 16.03.2017 passed by the Civil Judge and J.M.F.C., Soraba (henceforth referred to as 'Trial Court' for short) in C.C.No.554/2012 convicting them for the offences punishable under Sections 504, 353, 332, 289 and 506 read with Section 34 of IPC and sentencing them to undergo simple imprisonment for a period of three months for the offence punishable under Section 504 read with Section 34 of IPC and simple imprisonment for a period of six months for the offence punishable under Section 353 read with Section 34 of IPC and simple imprisonment for a period of one year along with fine of Rs.1,000/- each, for the offence punishable under Section 332 read with Section 34 of IPC and simple imprisonment for a -3- CRL.RP No. 150 of 2019 period of one month for the offence punishable under Section 289 read with Section 34 of IPC and simple imprisonment for a period of three months for the offence punishable under Section 506 read with Section 34 of IPC. The petitioners have also challenged the judgment dated 14.12.2018 passed by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.25/2017 by which, the judgment of conviction passed by the Trial Court was upheld.
2. The parties shall henceforth be referred to as they were arraigned before the Trial Court. The petitioners herein were the accused.
3. The case of the prosecution was that an arrest warrant was issued against accused No.1 by the Civil Judge and JMFC, Soraba in Crl.Misc.107/2008 and that the attempts made by the police to arrest the accused No.1 proved futile. It was claimed that since the accused No.1 could not be traced during the day time, on the instructions of the Sub-Inspector, CW.1, CW.2 along with police constables CW.3, CW.4 and P.C.822 and a woman P.C.1691 went to the house of the accused No.1 in a -4- CRL.RP No. 150 of 2019 departmental jeep at 10.15 p.m. on 06.01.2012 and reached the house of accused No.1 at 11. 00 p.m. When the accused No.1 was called out, he came out and started abusing CW.1 and his staff and threatened to kill them, if they touched him. Though CW.1 informed him about the warrant and that he was avoiding arrest, his brother (accused No.2) unleashed a dog domesticated by him, which bit CW.2 on his left thigh. When CW.1 and his staff tried to arrest accused No.1, the accused No.1 slapped CW.2, while accused No.2 struck CW.1 on his head with a stick. As a result, CW.1 fell down. Accused No.1 held the collar of the uniform of CW.1 and pulled him around resulting in two buttons of the shirt coming off. The accused No.2 thereafter, assaulted P.C.1598 on the right arm. The accused Nos.3 and 4 dragged CW.1 around and challenged how they could take accused No.1 and threatened to put the jeep on fire and threatened to kill CW.1 and his staff. It was claimed that CW.1 arrested accused No.1 and since other villagers assembled, the accused Nos.2 to 4 escaped. A complaint was therefore, lodged stating that an arrest warrant was issued against accused No.1 in Crl.Misc.Nos.107/2008 and 177/2011 and when CW.1 and his staff went to arrest accused No.1, he -5- CRL.RP No. 150 of 2019 and his family members obstructed the officials from performing their duty and also assaulted them with stick and abused them and also tore off the uniform of CW.1. The accused No.1 was produced before the Sub-Inspector (CW.15). Based on this complaint, the jurisdictional police registered Crime No.10/2012 for the offences punishable under Sections 353, 332, 504, 506, 289 read with Section 34 of IPC.
4. CW.15 registered an F.I.R. and placed the file and produced the accused No.1 before CW.16 - investigating officer, who seized the torn uniform of CW.1, conducted a spot mahazar and seized the stick used for the crime, prepared a sketch of the spot and collected the tax demand extract of the house of the accused. He also secured the wound certificates of the injured witnesses and recorded the statements of the official witnesses and witnesses to the seizure, spot mahazar as well as an independent witness (CW.7) and submitted a charge-sheet for the offences punishable under Sections 353, 332, 504, 506, 289 read with Section 34 of IPC.
5. The Trial Court took cognizance of the offences punishable under Sections 353, 332, 504, 506, 289 read with -6- CRL.RP No. 150 of 2019 Section 34 of IPC and issued summons to the accused. The accused appeared and were released on bail. The substance of accusation was read over to the accused, who pleaded not guilty and claimed to be tried.
6. The prosecution examined CW.1 - complainant as PW.1, who deposed about accused No.1 slapping CW.2 and holding CW.1 by his collar and accused No.2 unleashing his dog as well as accused No.2 assaulting CW.2 on his head with a stick. CW.4 was examined as PW.2, who supported the prosecution. CW.3 was examined as PW.3, who too supported the prosecution. The independent eye-witness (CW.7) was examined as PW.4, who did not support the prosecution and no evidence was extracted in the course of his cross-examination by the Public Prosecutor. CW.2, who was the injured probationary P.S.I., was examined as PW.5 and he supported the prosecution. PW.6 was a witness to the spot mahazar and seizure of a stick, who did not support the prosecution. PW.7 was a witness to a seizure of the uniform worn by CW.1, who supported the prosecution. However, PW.8 and PW.9, who were the witnesses to the spot mahazar and seizure mahazar respectively did not support the prosecution. The Doctor whose -7- CRL.RP No. 150 of 2019 statement was recorded as CW.14, was examined as PW.10 and he deposed that the injuries found on CW.2 and CW.3 could be caused by a person when scratched. PW.12 was the police officer, who registered F.I.R. and who handed over the accused No.1 along with the file to CW.15. The investigating officer (CW.15) was examined as PW.11. The prosecution marked the complaint of PW.1 as Ex.P1, the spot mahazar as Ex.P2, the seizure of the uniform of CW.1 as Ex.P3, the certified copy of two arrest warrants in duplicate as Exs.P4, P5, P6 and P7, the statement of PW.6 as Ex.P8, the wound certificates of the injured as Exs.P9, P10, P11 and P12, the sketch of the incident was drawn up, which was marked as Ex.P13 and the tax demand extract of the house of the accused was marked as Ex.P14, a copy of the station house diary was marked as Ex.P15 and the memorandum producing accused No.1 in Crl.Misc.107/2008 was marked as Ex.P16, the First Information Report was marked as Ex.P17. The prosecution marked the wooden stick used for the offence as MO.1 and the uniform of CW.1 as MO.2. The Trial Court recorded the separate statements of the accused under Section 313 of -8- CRL.RP No. 150 of 2019 Cr.P.C. and they all denied the incriminating evidence against them. However, they did not lead any evidence in defence.
7. Based on the oral and documentary evidence, the Trial Court held that the prosecution proved the offence beyond doubt and consequently, convicted the accused for the offences punishable under Sections 504, 353, 332, 289 and 506 read with Section 34 of IPC. They were sentenced to undergo simple imprisonment for three months for the offence punishable under Section 504 read with Section 34 of IPC and six months simple imprisonment for the offence punishable under Section 353 read with Section 34 of IPC and one year simple imprisonment and fine of Rs.1,000/- each for the offence punishable under Section 332 read with Section 34 of IPC and one month simple imprisonment for the offence punishable under Section 289 read with Section 34 of IPC and three months simple imprisonment for the offence punishable under Section 506 read with Section 34 of IPC.
8. Being aggrieved by the said judgment of conviction, the accused filed Crl.A.No.25/2017. The Appellate Court secured the records of the Trial Court, heard the counsel for the -9- CRL.RP No. 150 of 2019 accused and the Public Prosecutor and framed points for consideration. It re-appreciated the evidence and held that the prosecution had proved the offence committed by the accused beyond doubt and consequently, dismissed the appeal and confirmed the judgment of conviction and order of sentence passed by the Trial Court.
9. Being aggrieved by the judgments of both the Courts, the accused have filed this revision petition.
10. The learned counsel for the petitioners/accused submitted that the warrant in Crl.Misc.No.177/2011 was issued on 07.01.2012 and thereafter, reissued on 20.01.2012 and again on 03.07.2012. He submits that if the accused No.1 was arrested on 06.01.2012, there is no reason why he was not produced in Crl.Mic.No.177/2011 on 20.01.2012. He submitted that no material was produced before the Court to establish that the warrant issued in Crl.Misc.No.107/2008 was attempted to be executed from 21.01.2011 till 06.01.2012 and that the accused No.1 was evading arrest. He submits that CW.1 along with his staff had gone to the house of the accused No.1 at 11.00 p.m. and caused a ruckus in front of the house of the
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CRL.RP No. 150 of 2019accused No.1. He submits that PW.10 in his evidence deposed that the injuries found in the wound certificates could be caused by a person when scratched by hand. He therefore, submits that when accused No.1 was attempted to be taken into custody, these injuries could have happened, which were extremely simple. He further submitted that the seizure of MO.1 was not supported by PW.8 and PW.9. There was no injury on the anterior side of the head suffered by CW.2 and therefore, the accused were unnecessarily implicated in a false case. He further submitted that there were gross inconsistencies in the evidence of PW.1 and PW.2. He submitted that though a woman constable accompanied PW.1 and his staff, she was not examined before the Court. He submitted that the case of the prosecution was supported only by official witnesses while they were all interested witnesses and the independent witness (PW..6) turned hostile. He therefore, submitted that there was doubt regarding the commission of the offences alleged against the accused. Further, he submitted that PW.1 along with one probationary P.S.I. and three constables and a woman PC had gone to the house of the accused and it is improbable that accused No.2
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CRL.RP No. 150 of 2019could have assaulted CW.1 and CW.2. He submitted that the police are bound to carry their service cane and therefore, it is improbable that the accused could have assaulted CW.1 and CW.2 let alone a dog domesticated by accused No.2 biting them.
11. The learned High Court Government Pleader for the respondent/State, on the other hand, submitted that Exs.P4 to P7 were the arrest warrants issued against the accused No.1 and he had to be produced in Crl.Misc.No.107/2008 by 07.01.2012 and therefore, H.C.636 was deputed to execute the warrant. He submitted that the accused No.1 was not traced many times and therefore, CW.1 and his staff had to arrest him only in the night. He submitted that the accused resisted the arrest warrant and caused injury to CW.1 and CW.2 and obstructed them from performing their official duties. He submitted that in a case of this type and that too, when the offence was committed at 11.00 p.m., it is impossible to expect independent witnesses to depose. He however, submits that PW.4 and PW.6 were independent witnesses, who witnessed the incident but failed to support the prosecution. He submits that the evidence of official witnesses cannot be trashed only
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CRL.RP No. 150 of 2019on the ground that they were interested in the outcome of the case.
12. I have considered the submissions made by the learned counsel for the petitioners/accused as well as the learned High Court Government Pleader for the respondent/State. I have also perused the records of the Trial Court, its judgment as well as the judgment of the Appellate Court.
13. It is seen from Ex.P1 that CW.1, CW.2, P.C.822, P.C.1598, P.C.1326 and W.P.C.1691 went to the resident of accused No.1 in a departmental vehicle at 11.00 p.m. It was alleged that the accused No.1 threatened to kill them, if they touched him. The accused No.2 is stated to have unleashed his dog which bit P.C.1326 on his left thigh. It was alleged that when CW.1 tried to take custody of accused No.1, he slapped CW.2, while accused No.2 assaulted CW.1 on the anterior side of the head. CW.1 fell down and accused No.1 held him by the collar of his uniform and dragged him around resulting in two buttons of his shirt coming off. The accused No.2 later assaulted P.C.1598 on his right arm, while accused Nos.3 and 4
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CRL.RP No. 150 of 2019manhandled CW.1 and challenged CW.1 and his staff threatening that they would burn down the jeep and kill all of them. However, in the evidence of CW.1 who was examined as PW.1, he deposed that he, CW.2 and CW.3 to CW.6 had gone to the house of accused No.1. He did not depose about W.P.C.1691 accompanying them. He deposed that the dog not only bit CW.2 but also bit CW.3. The accused No.2 is stated to have assaulted CW.1 on the anterior of his head, while CW.3 was assaulted on his left arm. Therefore, there is a clear inconsistency in the evidence of PW.1. PW.1 claimed that the mahazar was conducted at 3.00 a.m. in the morning, while Ex.P2 shows that it was drawn between 8.00 a.m. and 8.45 a.m. He did not disclose as to who was driving the departmental vehicle on 06.01.2012. In his cross-examination, this witness deposed that the incident occurred when accused No.1 was arrested by PW.1 and PW.5 and was led towards the departmental vehicle and that the accused Nos.2 and 3 came to the spot. He deposed that there were 2-3 dogs, but could not state as to how many dogs were there. He deposed that the dogs bit PW.5 and PW.2. He admitted that accused No.4 was
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CRL.RP No. 150 of 2019the sister of accused No.1, who was married off to another village but claimed that she too was present.
14. PW.2, on the other hand, claimed that in order to execute two warrants against the accused No.1 they left at 14.45 hours on 06.05.2012 and reached the house of the accused at 11.00 a.m. He deposed that CW.1 to CW.3, CW.5 and CW.6 went to execute the arrest warrant but did not depose about the woman PC. He deposed that when they tried to execute the warrant, the accused unleashed a dog, which bit CW.2 on his left thigh and also bit CW.3 on the left leg. He alleged that accused No.2 assaulted him on his forearm with a stick, while accused No.1 slapped CW.2 and accused No.2 assaulted CW.1 on his head and both of them fell down. He claimed that due to the dog bite, the clothes worn by CW.3 and CW.4 were stained with blood and that hearing the commotion, many people assembled. He deposed that he did not suffer any injury on the right arm. This witness gave a different version and claimed that when CW.1 was assaulted on his head, he fell down and recovered after 10 minutes. He claimed that PW.5 was slapped by accused No.2 and that the accused No.2 held
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CRL.RP No. 150 of 2019him by his clothes and dragged around. He identified MO.2 as the dress of CW.2.
15. PW.3 was another constable, who had accompanied PW.1 and PW.2. He deposed that when the accused No.1 refused to surrender, they tried to arrest him at which point, CW.2 was slapped by accused No.1 and when he and CW.1 tried to catch him, accused No.2 assaulted CW.1 on the anterior side of his head with a stick. He deposed that CW.1 did not fall down but was standing. At that time, accused No.1 is stated to have held the uniform of CW.1 and dragged him around. He deposed that when he and CW.4 tried to arrest accused No.1, the accused No.2 assaulted CW.4 on his hand, while accused No.1 unleashed a dog in his house which bit CW.2 and also bit him on his left thigh. He deposed that both he and CW.2 were injected with anti-rabies injections. This witness deposed that within 5 - 10 minutes of they reaching house of accused No.1, 5-10 people gathered there. He claimed that CW.1 had suffered bleeding wound.
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CRL.RP No. 150 of 2019
16. PW.4 was a resident of the village, who deposed that he had not seen the incident and refused to identify his statement.
17. PW.5 was the probationary P.S.I., who had accompanied the team to arrest accused No.1. He deposed that accused No.1 on seeing the police from the window, ran inside, while accused No.2 was standing outside, who unleashed the dog, which bit him and CW.3. He deposed that accused No.1 slapped him while accused No.2 assaulted CW.1 on the anterior side of the head and held the uniform of CW.1 and dragged him around. Accused No.2 is stated to have assaulted CW.3 on the right shoulder, while the other accused threatened to put the vehicle on fire and kill them. This witness however, changed his version and deposed that the mother of the accused No.1 was present. He deposed that he did not see the neighbours coming to the spot after hearing the commotion.
18. PW.6 was an independent witness, who had allegedly witnessed the seizure of MO.1 and he turned hostile. While PW.7 was a witness to the seizure of the uniform of CW.1, who deposed that the seizure mahazar was drawn up at
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CRL.RP No. 150 of 2019the police station. PW.8 was the witness to the spot mahazar, who did not support the prosecution. PW.9 was also a witness to the seizure of MO.1, but he did not support the prosecution.
19. It is therefore, evident that it is only the official witnesses, who supported the prosecution and that there were various inconsistencies in the narration of the incident by each of them. The fact that five police constables had gone to the accused No.1 and that accused No.1 slapped CW.2, while accused No.2 assaulted CW.1 with a stick and unleashed a dog, which bit CW.3 and CW.2, seems improbable as the police could not have gone to the spot without their service canes in hand. The incident appears to be blown out of proportion. In the absence of any independent witness, it is unsafe to rely upon the official witnesses to hold that the prosecution had proved the guilt of the accused beyond doubt. The injuries suffered by PW.2, PW.3 are simple in nature and could be caused in a scuffle and incidentally some dogs must have caused some injury. Since none of the independent witnesses supported the prosecution, it is difficult to believe that accused No.2 unleashed the dog. The injuries suffered by PW.1 is also
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CRL.RP No. 150 of 2019simple, which could be caused in a scuffle while arresting the accused.
20. Hence, this revision petition is allowed. The judgment of conviction dated 15.03.2017 and order of sentence dated 16.03.2017 passed by the Civil Judge and J.M.F.C., Soraba in C.C.No.554/2012 is set aside. Consequently, the judgment dated 14.12.2018 passed by the V Additional District and Sessions Judge, Shivamogga sitting at Sagar in Crl.A.No.25/2017 is also set aside. The petitioners are acquitted of the offences punishable under Sections 504, 353, 332, 289 and 506 read with Section 34 of IPC and they are set free.
The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.
Sd/-
JUDGE PMR List No.: 1 Sl No.: 23