Karnataka High Court
Moideen Beary vs The State Of Karnataka on 13 February, 2024
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NC: 2024:KHC:6097
CRL.RP No. 1095 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 1095 OF 2015 (397)
BETWEEN:
MOIDEEN BEARY
S/O ARABI BEARY,
AGED ABOUT 81 YEARS,
R/AT ANADKA HOUSE,
KEDILA VILLAGE,
KEDILA POST, BANTWAL TALUK,
D.K.DISTRICT-574 218.
...PETITIONER
(BY SRI. RITHIK Y.M., ADVOCATE FOR
SRI. SUYOG HERELE.E. ADVOCATE (PH))
AND:
THE STATE OF KARNATAKA
THROUGH PUTTUR TOWN POLICE STATION,
D.K.DISTRICT,
Digitally REPRESENTED BY ITS
signed by
SHAKAMBARI STATE PUBLIC PROSECUTOR,
Location: HIGH COURT BUILDING,
HIGH COURT
OF HIGH COURT OF KARNATAKA
KARNATAKA
BANGALORE-560 001.
...RESPONDENT
(BY SRI. JAI RAM SIDDI, (HCGP))
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGEMENT AND
ORDER DATED 24.08.2015 PASSED BY THE V ADDL.DIST. AND
S.J., D.K., MANGALORE SITTING AT PUTTUR IN
CRL.A.NO.299/2012, CONFIRMING THE ORDER DATED
29.09.2012 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC AT
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CRL.RP No. 1095 of 2015
PUTTUR, IN C.C.NO. 988/2010 AND CONSEQUENTLY ACQUIT
THE PETITIONER. OF ALL THE CHARGES LEVELED AGAINST
HIM.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed challenging the judgment of conviction and order of sentence passed in CC No.988/2010 dated 29.09.2012 by the Additional Civil Judge and JMFC, Puttur, Dakshina Kannada, Mangaluru confirmed by the V Additional District and Sessions Judge, D.K., Mangaluru sitting at Puttur in Criminal Appeal No.299/2012 dated 24.08.2015.
2. Parties to this revision petition are referred to as per their rank before the trial Court for the purpose of convenience.
3. The brief and relevant facts leading upto this revision petition are as under:
One Smt.Lolakshi, W/o. Janardhana Sapalya, a resident of the address so stated in the complaint filed a complaint alleging that on 11.08.2009, at about 2.30 p.m., alleging that, the accused/petitioner herein committed criminal tresspass into the house bearing No.3-1(4) of Kudlumbladi of Kedila Village, -3- NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 Bantwal Taluk and removed the chudidar of her minor daughter who was suffering from mental illness and tried to outrage her modesty. At that time, the complainant was not there in the house. She went to attend her work. When she returned from her work place to her house and entered the house, seeing her, the accused ran away by jumping the compound wall. She informed the same to CW.3. She was given a threat stating that if this incident is intimated to others, she has to face the consequence.
4. With the above allegations, she filed a complaint before PW.6 Smt.Archana K., the then PSI of Puttur Town Police Station. The said complaint came to be registered in Crime No.220/2009 and the criminal law was set in motion.
5. After completion of the investigation and after following all the formalities of investigation, charge sheet came to be filed against the accused person for the offence under Sections 448, 354 and 506 of IPC.
6. To prove the guilt of the accused, prosecution in all examined six witnesses from PWs. 1 to 6 and got marked Ex.P1 to P5 with respective signatures.
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7. The learned trial Court on hearing the arguments of both the side and on evaluation of the evidence, found the accused guilty of committing the offence under Sections 448 and 354 of IPC and acquitted the accused of the offence under Section 506 of IPC. The accused was sentenced to pay a fine of Rs.500/- for the offence under Section 448 of IPC and Rs.5,000/- for the offence under Section 354 of IPC. Out of the said fine amount, accused was directed to pay Rs.5,000/- to the victim girl.
8. This judgment of conviction and order of sentence passed by the trial Court was challenged by the accused/appellant before the V Additional District and Sessions Judge, D.K., Mangaluru sitting at Puttur in Criminal Appeal No.299/12. The learned first appellate Court, on hearing the arguments of both side and on re-appreciation of evidence, dismissed the appeal vide its judgment dated 24.08.2015. This is how, now the petitioner is before this Court challenging the judgments of Courts below.
9. Learned counsel for the petitioner Sri Rithik Y.M., in addition to narrating the facts of the case submits that, the judgments of the Courts below are contrary to law, illegal and -5- NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 liable to be set aside. He further submits that, none of the ingredients of aforesaid offences are proved by the prosecution. He submits that, alleged incident has taken place on 11.8.2009 but, the complaint was lodged on 13.10.2009. There is exorbitant delay in filing the complaint. This delay itself shows that the story put-forth by the prosecution is concocted so as to take revenge of civil dispute against the family of accused. He submits that, the trial Court as well as the first appellate Court have failed to appreciate the evidence in proper manner. There is no proof that, CW.2 the daughter of the complainant being victim in this case is suffering from mental illness. In the absence of convincing evidence, it is hard to believe that petitioner being 72 years could have committed the offence.
10. Relying upon the photographs, medical evidence, he submits that, victim was treated in the Hospital. The doctor who has medically examined the victim is not examined which, clearly would go to show that, complainant with an ulterior motive, because of civil dispute, has lodged the complaint so as to harass the accused. The Courts below have not appreciated the evidence of PWs. 1 to 3 in its legal perspective. In support of his submission, he took this Court to various evidence lead -6- NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 by the witnesses, admissions in the cross-examination and submits that, the petition be allowed and the judgment of conviction and order of sentence passed by the trial Court affirmed by the first Appellate Court be set aside and acquit the accused of the charges leveled against him.
11. As against this submission, the learned HCGP submits that, complainant was an eye witness to the said incident. on seeing the incident, when she entered the house, she went to bring the club. At that time, accused ran away from the said place. He submits that, there is consistent evidence adduced by the witnesses. He submits that, the learned trial Court as well first appellate Court have properly appreciated and re-appreciated the evidence placed on record by the prosecution. He submits that, in view of the fact so brought on record by the prosecution, findings and reasons assigned by the trial Court and first appellate Court, prosecution has established its case. He submits that, this Court is revisional Court cannot interfere into the judgment of the Courts below. Learned HCGP also took this Court to the evidence adduced by the prosecution and seeks dismissal of the revision.
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12. I have given my anxious consideration to the arguments of both side. Perused the records.
13. The points that would arise for my consideration are:
"1. Whether the learned trial Court as well as first Appellate court have committed illegality or perversity in finding the accused guilty of committing offence under Section 448 and 354 of IPC?
2. If so, whether the judgments of the trial Court and first appellate court require interference by this Court?
14. Evidently, in this case, the accused was charge sheeted by the Police for the offence under Section 448, 354 and 506 of IPC. The learned trial Court has acquitted the accused for the offence under Section 506 of IPC. Being aggrieved by the said acquittal of the accused, no appeal or revision has been preferred by the State. That means, the findings on the said offence have become final. -8-
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15. It is the specific case of the prosecution that, accused herein on 11.08.2009 at 2.30 p.m. when complainant or any member of the family were not in the house, committed criminal trespass into the house of the complainant. In the house the daughter of complainant i.e. Madhushree was there who was mentally challenged. Accused tried to outrage the modesty of the said victim girl. At that time, the complainant entered the house. Witnessing the said incident of outraging the modesty of her daughter, when she went to bring the club, the accused ran away from the said place. These facts have been informed by her to the neighbour on the following day, according to her complaint allegations.
16. PW.1-Smt.Lolakshi, the mother of the victim girl being the complainant has reiterated the allegations made in the complaint in her evidence on oath with regard to the said incident. She has specifically stated that on that day, her daughter had worn the chudidar and when she entered the house, she noticed accused removing the clothes of her daughter-victim girl and he was trying to put hands on daughter's person. When she went to bring club, accused ran away from the said place. Her daughter was bombarding. -9-
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17. She further states, immediately she could not file the complaint because of reputation of her daughter and after two months she filed the complaint. She identified Ex.P1 the complaint and her signature thereon.
18. This PW.1 has been thoroughly cross-examined by the defence/accused. It is elicited from the mouth of CW.1 that her daughter was mentally challenged girl, always she used to be in the house. All the other persons of the family go out for their work. There is no denial of the fact that, victim girl is mentally challenged and she used to be in the house always. Though lengthy cross-examination is directed to this witness, she is consistent in her stand that, accused is old man and has committed the offence. It is brought on record that, there is no compound wall around the house of the complainant, there is civil dispute etc.. All these suggestions are denied by PW.1. To show that there is civil dispute between the family of complainant and accused, except the bald suggestion directed to PW.1 nothing is brought on record by the defence.
19. PW.2- Sri Janardhana Sapalya is the husband of complainant and father of victim girl. He states that he is an
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 agriculture coolie states in his evidence that, on the date of incident, after completion of his work, he went to his house at 7.00 p.m. At that time, he came to know about act of the accused outraging the modesty of CW.2-victim girl. He is a hearsay witness.
20. According to the evidence of PW.2 that, he did not file the complaint on that day itself, because it would affect the reputation of the family. He identified the accused who was present before the trial Court during the course of evidence before the Court. It is suggested to PW.2 regarding the civil dispute. This suggestion is flatly denied by PW.2. Except denial nothing worth is brought on record from this witness.
21. PW.3 Sri K.Rudrappa is a relative of PW.1 and he too states that, on the date of incident, he was in his house, he heard the bombarding of CW.2. Immediately, he went to the house of complainant and there he noticed presence of CW.1 who was holding a club in her hand. When he entered the house, the accused was found coming in front of him. When enquired he came to know that, accused was trying to outrage the modesty of victim girl. That means when this PW.3 went to
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 house of complainant after hearing bombarding accused was in the house of the complaint. In the cross-examination, except denial, nothing worth is elicited from the mouth of PW.3.
22. PW.4 Sri Narayana Ubaralee, was very much present when the Panchanama was conducted. Severe cross- examination was directed. His presence when the panchanama was conducted and affixing his signature to the panchanama is duly proved. PW.5-Vedava, was the Secretary of the Gram Panchayath of Kedila. He has issued property tax assessment extract of the houses situated in the said village vide Ex.P3 at the request of the Police. He has put his signature as official witness. His evidence is to be accepted with regard to issue of tax paid receipt.
23. P.W.6, Smt.Archana K., the Investigating Officer in this case. According to her evidence, on 13.10.2009, she received a complaint from PW.1 vide Ex.P1 and set the criminal law in motion by registering Case No.220/2009, conducted panchanama vide Ex.P2, went to scene of offence on the same day itself. It is suggested in the cross-examination that, she has filed charge sheet, she did not enquire about the health
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 condition. Except denial, nothing worth is elicited from the mouth of this witness.
24. On reading the overall evidence of PWs, 2 and 3, it stands proved that, on 11.8.2009 as per the evidence, when CW.2-victim girl was alone in the house, accused trespassed into the house and tried to outrage the modesty of the victim girl as rightly observed by the trial Court.
25. So far as documentary evidence is concerned, Ex.P1 is the complaint. Ex.P2 is the scene of offence Panchanama, Ex.P3 is the document issued by Secretary of Panchayath, Ex.P4 is FIR and Ex.P5 is the sketch. Except these documents, no other documents are marked by the prosecution.
26. From the evidence of the aforesaid witnesses, as rightly observed by the trial Court, on evaluation of the same, it shows that this accused, on 11.8.2009 at 2.30 p.m committed criminal trespass into the house of complainant's house. At that time, victim girl was alone in the house. He tried to outrage her modesty. The offence under Section 354 of IPC is defined in the Code of Criminal Procedure, 1973 as under:
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 "Section 354: Language and contents of judgment:-
(1) Language and contents of judgment-1) Except as otherwise expressly provided by this Code, every judgment referred to in section 353-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced:
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
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4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such Sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code.
(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
(6) Every order under Section 117 or sub- section (2) of section 138 and every final order made under section 125, section 145 or section 147 shall contain the paint or points for determination, the decision thereon and the reasons for the decision.
27. In this case, PW.1 specifically states in her complaint as well as in her evidence that accused by committing trespass into her house, was found removing the chudidar of her daughter and putting his hand on the person of her daughter CW2., has tried to outrage her modesty. Thus ingredients of committing criminal trespass as well as outraging her modesty stated is proved. This evidence is further corroborated by the evidence of uncle of the victim girl who says, the accused moved away at that time though this
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 witnesses has been thoroughly cross-examined, he has withstood the test of cross-examination.
28. It is argued by the learned counsel for the petitioner that, though the victim was suffering with mental illness, the doctor has not been examined to this effect. There is no suggestion to PW.1 by the defence that, the girl was not suffering from any mental illness. Even there is no cross- examination directed to the investigating officer.
29. In the absence of concrete evidence about the same, the contention of the complainant and evidence of PW.1 with regard to medical condition of her daughter victim is to be accepted. IO has not collected the documents to that effect. In the absence of the same, argument of the learned counsel for accused cannot be accepted. Thus it is proved that the accused has committed criminal tress-pass by and tried to outrage the modesty of victim girl.
30. The learned trial Court as well as the first appellate Court have rightly evaluated the evidence lead by the prosecution and have rightly come to the conclusion that, accused is guilty of committing aforesaid offences.
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31. I do not find any factual or legal error committed by the trial Court confirmed by the first appellate court. Therefore, the prosecution is able to establish its case beyond all reasonable doubt.
32. So far as sentence, the learned trial Court has imposed a fine of Rs.5,500/- for the commission of the offence by him. It is also ordered to deposit the fine amount to the exchequer of the Government.
33. It is submitted by the learned counsel for the accused that, the incident took place in the year 2009, the petitioner-accused was 75 years old. A lenient view may be taken. Now we are in 2024, that means accused must have aged more than 92 years. It is submitted that accused is bed ridden and unable to move. He further submits that on previous dates, the accused was produced before the Court through video conference.
34. This fact of present health condition of the accused is not disputed by the prosecution also.
35. Taking into consideration the submission of the learned counsel for the accused as well as the HCGP and also
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 facts of the present case, the age of this case, if modification of sentence with regard to payment of fine to some extent is made, it would meet the ends of justice. Therefore, in the considered view of this Court, if the accused is directed to pay fine of Rs.3,000/- in all, it would suffice. Out of Rs.3,000/-, Rs.500/- to be deposited as fine amount and Rs.2,500/- be paid to PW.1 the complainant as compensation to the victim girl.
36. Accordingly, the revision petition filed by the accused/petitioner deserves to be allowed in part. Resultantly, I pass the following:
ORDER
(i) Revision Petition filed by accused is partly allowed.
(ii) Judgment of conviction and order of sentence passed by the Addl.Civil Judge and JMFC, Puttur in CC No.988/2010 dated 29.9.2012 and confirmed by the 5th Addl.District and Sessions Judge,
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NC: 2024:KHC:6097 CRL.RP No. 1095 of 2015 D.K.Mangaluru sitting at Puttur in Criminal Appeal No.29../12 dated 24.8.200 are hereby confirmed.
(iii) However, the accused is sentenced to pay a fine of Rs.3,000/- and in default of payment of fine, simple imprisonment for one month from the date of receipt of a copy of this order.
(iv) Out of Rs.3,000,/-, the accused shall pay Rs.2,500/- to PW.1 on her due verification as compensation to the victim and Rs.500/- to the Government exchequer as fine amount.
(v) Send a copy of the judgment to the trial Court along with the trial Court records as well as to the first appellate court along with the records.
Sd/-
JUDGE Sk/-
List No.: 1 Sl No.: 38