Karnataka High Court
Jaki @ Jakir Hussian @ Taliban @ Hassan ... vs The State on 4 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:44077
CRL.RP No. 1054 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1054 OF 2016
BETWEEN:
JAKI @ JAKIR HUSSIAN @ TALIBAN @ HASSAN JAKIR
S/O LATE HAJI ALMED SAYIGABBA
AGED ABOUT 42 YEARS
R/A S M MANZIL,
NEAR MOIDEEN MASJID
JOKATTE
MANGALORE TALUK.
...PETITIONER
(BY SRI. MUZAFFAR AHMED, ADVOCATE)
AND:
THE STATE BY
MANGALORE NORTH POLICE
REP: BY THE STATE
PUBLIC PROSECUTOR
Digitally signed
BENGALURU - 01.
by LEELAVATHI
SR ...RESPONDENT
Location: HIGH (BY SMT. WAHEEDA M.M., HCGP)
COURT OF THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
KARNATAKA
SET ASIDE THE JUDGMENT DATED 14.12.2012 PASSED BY THE
J.M.F.C.-(II COURT), MANGALORE IN C.C.NO.5670/2005 AND
THE SAME WAS CONFIRMED DATED 19.07.2016 PASSED BY
THE IV ADDL. DIST. AND S.J., MANGALORE, D.K. IN
CRL.A.NO.14/2013 FOR THE OFFENCE P/U/S 332 AND 353 OF
IPC BY ALLOWING THE R.P.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:44077
CRL.RP No. 1054 of 2016
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri. Muzaffar Ahmed, learned counsel for the petitioner and Smt. Waheeda M.M., learned High Court Government Pleader for the respondent.
2. The accused, who suffered an order of conviction in C.C.No.5670/2005 for the offences punishable under Sections 332 and 353 of the Indian Penal Code and was ordered to undergo simple imprisonment for a period of six months for the offence punishable under Section 332 of IPC and sentenced to pay a fine of Rs.2,000/- with sentence of simple imprisonment for a period of 15 days and for the offence punishable under Section 353 IPC, he was sentenced to pay a fine of Rs.3,000/- with default sentence of simple imprisonment for a period of one month, confirmed in Crl.A.No.14/2013, has preferred this review petition.
3. The facts in nut shell for disposal of this review petition are as under:
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 A complaint came to be lodged by the Head Constable of Mangaluru North Police on 28.07.2005 contending that at about 11:45 a.m. at Yathimkhan road near Jumma Masjid of Bunder, when complainant enquired the accused, who was facing criminal proceedings in relation to M.C.No.184/2005 about his name and address, there was a scuffle. At that juncture, the accused said to have uttered the words "chaddi police nimminda yenaguthade" and assaulted the complainant with hands and thereby voluntarily caused hurt to the complainant and also resulting in deterring the discharging the official duty of a government servant.
4. Based on the complaint, a case came to be registered in Crime No.246/2005 for the offences punishable under Sections 332 and 353 IPC. The injured was referred to the Government Hospital.
5. After registering the case, police thoroughly investigated the case and filed charge sheet against the accused for the aforesaid offences.
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016
6. Presence of the accused was secured and after completing necessary formalities, plea was recorded. Accused pleaded not guilty and therefore, trial was held.
7. In order to bring home the guilt of the accused, the prosecution in all examined six witnesses as PWs.1 to 6 comprising of Doctor, who issued the wound certificate, injured, eye witnesses and the investigating agency. The prosecution in all placed on record eight documentary evidence, which were exhibited and marked as Exs.P-1 to 8 comprising of a wound certificate, complaint, spot mahazar, FIR, sketch showing the place of incident, identity card and copy of the police diary.
8. Detailed cross-examination of prosecution witnesses did not yield any positive material so as to disbelieve the version of the prosecution witnesses. More so when there was no previous enmity/animosity between the police personnel, who is injured in the incident and the accused.
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9. Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein accused has denied all the incriminatory materials and did not chose to place on record any written submissions as is contemplated under Section 313(4) of Cr.P.C. nor placed any defence evidence on record.
10. Subsequent thereto, learned Trial Magistrate heard the arguments of both parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced as referred to supra.
11. Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.14/2013.
12. Learned First Appellate Court after securing the records from the Trial Court, heard both parties in detail and taking note of the material evidence placed on record, -6- NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 re-appreciated the same and agreed with the findings recorded by the learned Trial Magistrate and dismissed the appeal.
13. Learned Judge in the First Appellate Court did not consider the accused for reduction of sentence though urged before him.
14. Being further aggrieved by the same, the accused has preferred the present revision petition before this Court.
15. Sri. Muzaffar Ahmed, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that by the external appearances of the accused, the police have accused the present revision petitioner with the words that "he looks like Taliban" and the scuffle started thereunder and for the use of such words, the accused has reacted spontaneously at the spur of the moment, which has been blown out of proportion by the police personnel in falsely implicating -7- NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 the accused for the aforesaid offences in the case on hand, which has not been rightly appreciated by the learned Trial Magistrate or the learned First Appellate Judge, resulting in miscarriage of justice and sought for allowing the revision petition.
16. Alternatively, learned counsel for the revision petitioner contended that in the event of this Court holding conviction order has to be maintained, taking note of the fact that there is no criminal antecedent of the accused and the accused is in social service for the last 10 years in the society and in the absence of any further criminal cases being filed against the petitioner herein, the sentence ordered by the Trial Magistrate and confirmed by the First Appellate Court needs to be set aside by imposing reasonable amount of fine.
17. Per contra, Smt. Waheeda M.M., learned High Court Government Pleader supports the impugned judgments by contending that PWs.2 and 3 being police personnel, had been given the task of service of notice in -8- NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 respect of a criminal case in relation to M.C.No.184/2005. At that juncture, when they approached the accused, voluntarily the accused interfered with the due discharge of the official work by PWs.2 and 3 resulting in PW.2 being injured near the left eye as is found in Ex.P-1, wound certificate and thereby all the ingredients required to attract the offences punishable under Sections 332 and 353 of IPC has been successfully established by the prosecution and thus, sought for dismissal of the revision petition.
18. In so far as the alternate submission is concerned, learned High Court Government Pleader contended that if a person can abuse and assault a police personnel in public voluntarily, which has been duly established before the Court by placing sufficient evidence on record, no lenience or mercy can be shown to such persons as it would directly send a wrong message to the society in encouraging such miscreants in future to take law into their own hands and not respecting the police in -9- NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 the public. Therefore, she sought for dismissal of the revision petition in toto.
19. Having heard parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, the following points would arise for my consideration:
(i) Whether the prosecution has successfully Established all ingredients punishable under Sections 332 and 353 IPC?
(ii) Whether the impugned judgment is suffering from legal infirmity or perversity?
(iii) Whether the sentence is excessive?
(iv) What order? Re. Point Nos.1 and 2:
20. In the case on hand, admittedly, PWs.2 and 3 had met the accused-revision petitioner for the first time on 28.07.2005. PWs.2 and 3 were given the task of finding of the whereabouts of the accused in respect of a proceedings under the provisions of Cr.P.C. initiated by the
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 Taluk Executive Magistrate. At that juncture, the accused said to have uttered the words "chaddi police nimminda yenaguthade". The accused also voluntarily caused hurt near the left eye of PW.2. As such, PW.2 went back to the Mangaluru North Police Station and lodged a complaint with regard to the incident. A case came to be registered in Crime No.246/2005 and the injured was referred to the Government hospital and he was treated by PW.1, Doctor, who issued Ex.P-1, wound certificate.
21. The contents of Ex.P-1 was sought to be assailed by cross-examining PW.1 in detail.
22. PW.1 in his cross-examination, has admitted that if someone falls on the ground, the injury noted by him in Ex.P-1 could be caused, but he has also answered that the injured has stated that the accused has assaulted him with his hands.
23. Admittedly, PW.1 is a Government Doctor, who did not nurture any enmity as against the accused nor
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 extra affinity towards the complainant. Why would such a person would give a false wound certificate only with an intention to falsely implicate the person is the question which remains unanswered on behalf of the accused. The oral testimony of PWs.2 and 3 coupled with the contents of Ex.P-1 and taking note of the fact that there is no loss of time in lodging the complaint and taking note of the further fact that soon after the incident, PW.2 had rushed to the police station and lodged the complaint, is rightly appreciated by the learned Trial Magistrate while finding truth in the case of the prosecution and with sound and proper reasons, convicted the accused for the offences punishable under Sections 332 and 353 of IPC.
24. Learned Judge in the First Appellate Court re- appreciated the material evidence on record and the evidence on record in the light of the grounds urged on behalf of the accused.
25. Assuming that the version stated before this Court by the learned counsel for the revision petitioner is
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 to be accepted and accused has acted as a normal prudent person in the set of circumstances and it could be turned as right to private defence, in order to invoke the right to private defence, it is incumbent on the part of the accused to accept the incident at the first place, which has been not forth coming in the records.
26. The accused cannot deny the incident and then still raise a question of private defence. Therefore, the grounds urged on behalf of the revision petitioner that the incident as is contended by the prosecution has not at all taken place at one breath and cannot urge the Right to Private Defence in the next breath.
27. Under such circumstances, conviction of the accused for the aforesaid offences is just and proper. Moreover, this Court cannot re-visit into the factual aspects unless it is patently illegal. No such patent illegality is pointed out either, on behalf of the revision petitioner.
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 In view of the foregoing discussion, point Nos.1 and 2 are answered in the affirmative and negative, respectively.
Re. Point No.3:
28. Admittedly, the accused is a first time offender.
In the order of passing the sentence, no reason is forthcoming as to why simple imprisonment of 6 months is ordered for the offence punishable under Section 332 IPC. All that the Trial Magistrate has narrated while passing the sentence is the respective contentions of the parties. What is the reason for imposing the imprisonment for a period of six months is totally absent in the order regarding sentence.
29. It is well settled principles of law and requires no emphasis that a role of a judge while passing the order of conviction is altogether a different role when it comes to the question of passing appropriate sentence in a given case.
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30. The learned Trial Magistrate failed to discharge such a role while passing an order of sentence in the case on hand.
31. The learned Judge in the First Appellate Court did not discuss the said aspect of the matter and missed the same in toto while upholding the order of conviction and sentence.
32. Therefore, a case is made out by the revision petitioner for this Court in this revisional jurisdiction to re- visit into the question of passing appropriate sentence.
33. Learned counsel for the revision petitioner urged before this Court that admittedly accused did not have any criminal antecedents. Learned High Court Government Pleader is unable to point out any such criminal antecedents of the accused directing the Probation Officer to get the report at this distance of time in respect of the criminal antecedents taking note of the
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NC: 2024:KHC:44077 CRL.RP No. 1054 of 2016 fact that the incident is of the year 2005 would be a futile exercise.
34. Admittedly, after registration of the present case, no other criminal cases are filed against the petitioner either. Further, the learned counsel for the revision petitioner contended that the accused is doing social service for more than 10 years as he is of digging graves at the graveyard and eaking out his livelihood.
35. Taking note of the above aspects of the matter, directing the accused to undergo simple imprisonment for a day by enhancing the fine amount by Rs.10,000/- would meet the ends of justice. Accordingly, Point No.3 is answered partly in the affirmative.
Re. Point No.4:
36. In view of the finding of this Court on point Nos.1 to 3 as above, the following orders is passed:
(i) The Criminal Revision Petition is allowed-in-
part.
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NC: 2024:KHC:44077
CRL.RP No. 1054 of 2016
(ii) While maintaining the conviction of the
accused for the aforesaid offences
punishable under Sections 332 and 353 IPC, the accused is ordered to undergo simple imprisonment for a day till raising of the Court by enhancing fine amount of Rs.10,000/-, in all a sum of Rs.15,000/- (Rs.5,000/- imposed by the learned Trial Magistrate for the offence punishable under Sections 332 and 353 IPC and Rs.10,000/- enhanced by this Court by this order).
(iii) The balance fine amount is ordered to be paid on or before 30.11.2024, failing which the accused shall undergo simple imprisonment for a period of three months.
Sd/-
(V SRISHANANDA) JUDGE BMC, List No.: 1 Sl No.: 1