Karnataka High Court
S R Vasantha vs The State Of Karnataka By on 12 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:45877
CRL.RP No. 424 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 424 OF 2017
BETWEEN:
S.R. VASANTHA,
S/O H.T. RAJAIAH,
AGED ABOUT 37 YEARS,
RESIDENT AT NO.27,
BANAVARA ROAD, SOMWARPET TOWN,
SOMWARPET TALUK, KODAGU DISTRICT.
...PETITIONER
(BY SRI. SIJI MALAYIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
MADIKERI TOWN POLICE.
...RESPONDENT
(BY SMT. WAHEEDA M.M, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
Digitally PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF THE
signed by
MALATESH PRL. CIVIL JUDGE AND JMFC COURT, MADIKERI IN
KC
Location: C.C.NO.734/2007 DATED 16.04.2015 AND THE JUDGMENT
HIGH
COURT OF DATED 17.03.2017 IN CRL.A.NO.42/2015 IN THE LEARNED I
KARNATAKA
ADDL. DIST. AND S.J., KODAGU WHICH CONVICTED THE
PETITIONER FOR THE OFFENCES P/U/S 353, 225 OF IPC AND
ACQUIT THE PETITIONER BY ALLOWING THE ABOVE PETITION.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:45877
CRL.RP No. 424 of 2017
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Siji Malayil, learned counsel for the revision petitioner and Smt.Waheeda M. M., learned counsel for the State/respondent.
2. Accused who suffered an order of conviction in CC No.734/2007 dated 16.04.2015 on the file of Prl. Civil Judge and JMFC Court, Madikeri under Section 353 and 225 of IPC which was confirmed in Crl.A.No.42/2015 dated 14.03.2017 on the file of I Addl. District and Sessions Judge, Kodagu at Madikeri is the present revision petitioner.
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
3.1. A complaint came to be lodged by contending that on 08.03.2007 at about 1.30 p.m., when complainant was in police station, C.W.4 came and informed him that -3- NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 Thangaraju had committed an offence by theft by pick pocket and a case came to be lodged in Crime No.19/2007 for the offence punishable under Section 379 of IPC.
At about 2.00 p.m., complainant was enquiring the said Thangaraju in the presence of C.W.4 and 6 in the police station and recovered sum of Rs.500/- from his custody. The present revision petitioner all of a sudden entered the police station and started questioning C.W.1 as to why Thangaraju was arrested. C.W.1 told him that he is discharging his official work and he is on his official duty and therefore, he should not interfere with the discharge of his official duty. He also informed that Thangaraju has been arrested by the police personnel on account of a crime in Crime No.19/2007 for the offence punishable under Section 379 of IPC.
3.2. At that juncture, revision petitioner started abusing the complainant in filthy language and caught hold of shirt collar of the uniform of C.W.1. Other police personnel who were present in the police station -4- NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 intervened and pacified the quarrel. In this regard, a case came to be registered in Crime No.20/2007. 3.3. After thorough investigation, a charge sheet came to be filed under Section 353, 186 and 225 of IPC.
4. Presence of the accused was secured by the learned Trial Magistrate and trial was held. As accused pleaded not guilty, trial was held.
5. In order to substantiate the charges leveled against the accused, prosecution in all examined eight witnesses as P.W.1 to P.W.8 and relied on three documentary evidence viz., complaint, mahazar and FIR as Exs.P.1 to Ex.P.3.
6. Detailed cross-examination of prosecution witnesses did not yield any positive material so as to disbelieve the case of the prosecution.
7. Learned Trial Magistrate thereafter recorded the accused statement as is contemplated under Section 313 -5- NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 of Cr.P.C., wherein accused has denied all the incriminatory circumstances that were found against him.
8. In order to have his version of the incident, accused got examined himself as D.W.1. He deposed that he was working as District Human Rights Activist and he has gone to the police station to verify whether Thangaraju who has been in custody of the police in respect of crime No.19/2007 has been tortured.
9. He also deposed that he being appointed as Human Rights Monitor, he had every right to enquire the police about the detention of Thangaraju which has been blown out of proportion by the police by implicating him in a false case. In support of his contentions, he also examined two witnesses viz., Dr.Ajithkumar and Mathews as D.W.2 and 3.
10. In the cross-examination of D.W.2 and 3, learned Additional Public Prosecutor has elicited that on 08.03.2007 when accused called him, he was in Bengaluru office and he has no direct information about the incident. -6-
NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 In other words, because of the answer obtained by learned Additional Public Prosecutor in the cross-examination, the entire evidence of Mathews would be in the nature of hear-say evidence.
11. In the cross-examination of Dr.Ajithkumar, he admits that whenever some person visits him, with a history of injury, there would be a medico-legal case report lodged with the concerned police.
12. He admits that such a information should be provided to the police and in respect of the present incident, he does not remember of any such MLC report has been lodged with the police. He further admits that in Ex.D.1, there is no mention about the number of the MLC in respect of accused. Likewise, in his cross-examination, he admits that on 09.03.2007, he has not given any treatment to the accused.
13. These aspects of the matter has been taken note by the learned Trial Magistrate in a cumulative manner and convicted the accused for the aforesaid -7- NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 offences and passed the sentence of imprisonment for a period of two years and fine in a sum of Rs.5,000/- for the offence punishable under Section 353 of IPC and imprisonment for a period of one year and fine in a sum of Rs.5,000/- for the offence punishable under Section 225 of IPC.
14. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.42/2015.
15. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and confirmed the order of conviction and modified the sentence by directing the accused to undergo simple imprisonment for a period of six months and to pay fine in a sum of Rs.5,000/- with a default sentence of two months for the offence punishable under Section 353 of IPC and simple imprisonment for a period of three months for the offence under Section 225 of IPC and ordered to pay fine in a sum of Rs.5,000/-.
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16. Being further aggrieved by the same, accused is before this Court, in this revision.
17. Sri.Siji Malayil, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that accused was discharging the job of Human Rights Monitor at the relevant point of teem and he had been instructed from the head office to visit the police station if there is any illegal arrest or violation of the human rights and in that connection, he has visited Madikeri Town Police wherein one Thangaraju was held by the police illegally and when same was questioned, a false case has been foisted against the revision petitioner.
18. These aspects of the matter has been totally ignored by the learned Trial Magistrate while passing the order of conviction and same has been mechanically upheld by the learned Judge in the First Appellate Court resulting in miscarriage of justice and sought for allowing the revision petition.
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19. Alternately, Sri.Siji Malayil, learned counsel contended that in the event, this Court upholding the order of conviction, taking note of the fact that the incident has occurred at the spur of the moment and there is no criminal antecedents against the revision petitioner and there is no other complaint subsequent to the present incident, this Court may consider the two days custody period undergone at the time of investigation be treated as period of imprisonment by enhancing the fine amount.
20. Per contra, Sri.Waheeda M.M., learned High Court Government Pleader for the respondent supports the impugned judgments.
21. Having heard the parties in detail, this Court perused the material on record meticulously.
22. On such perusal of the material on record, it is crystal clear that on the day of incident i.e., on 08.03.2007, at about 1.30 p.m., there was a complaint with regard to theft and one Thangaraju was apprehended by police and he was brought to the police station. C.W.1
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NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 who is the victim in the incident, did enquire Thangaraju and was able to recover sum of Rs.500/- from Thangaraju. When this incident took place, it was 2.00 p.m. in the police station. At that juncture, revision petitioner entered into the police station and started questioning the police as to why Thangaraju has been held by the police. Police have replied to the revision petitioner that he has been arrested in respect of Crime No.19/2007 and without there being any provocation on the part of the police, revision petitioner said to have abused the police in filthy language and also held the uniform collar of C.W.1 and whereby he voluntarily restrained the Government servant from discharging his official work which would be sufficient enough to attract the ingredients of the offence punishable under Section 353 of IPC.
23. Action of the accused is also attributable to the offence punishable under Section 225 of IPC. Same has been rightly appreciated by the learned Trial Magistrate while passing the order of conviction.
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24. Accused no doubt, placed defence evidence on record before the Trial Court by examining himself and two witnesses namely doctor who said to have treated him and also one Mathews who is the official superior of the Company called Sikrem.
25. In the cross-examination of said Mathews, it is elicited that he is not personally aware of the incident that took place in the police station. In other words, Mathews deposed before the Court based on the version given by the revision petitioner. Therefore, learned Trial Magistrate was justified in discarding the oral evidence of D.W.1 and 3 being the self serving testimony.
26. Insofar as evidence of doctor is concerned, who is examined as D.W.2, in his cross-examination, he has clearly admitted that he had not treated the accused on 09.03.2007 though MLC report is dated 09.03.2007. How an MLC report without lodging the report came to be issued that too without a serial number is a question that remains answered on behalf of the accused which has
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NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 been rightly appreciated by the learned Trial Magistrate while discarding the defence taken by the accused that it is the police who high handedly assaulted the accused and then to cover up their mistakes, filed a false case in Crime No.20/2007.
27. The said factual aspects of the matter was subject matter before the First Appellate Court in Crl.A.No.42/2015 filed by the accused.
28. Learned Judge in the First Appellate Court while reappreciating the material evidence on record has rightly taken note of these aspects of the matter and dismissed the appeal of the accused.
29. However, learned Judge in the First Appellate Court took note of the arguments addressed that was put forth on behalf of the accused and modified the sentence from two years imprisonment for the offence under Section 353 of IPC to six months imprisonment and one year imprisonment for the offence under Section 225 of IPC to three months simple imprisonment.
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30. Being further aggrieved by the same, accused is before this Court.
31. Taking note of the fact that this Court is exercising in the revisional jurisidiction, there cannot be any reappreciation on the material evidence on record. There is no patent factual error pointed out on behalf of the revision petitioner to hold that the impugned judgments are suffering from perversity. Therefore, following the dictum of the Honb'le Apex Court in the case of Amit Kapoor v. Rameshchandra reported in (2012) SCC 460, this Court is of the considered opinion that order of conviction passed by the learned Trial Magistrate confirmed by the First Appellate Court for the aforesaid offences needs to be maintained.
32. This would take this Court to next limb of the arguments on behalf of the accused/revision petitioner that leniency can be shown as the revision petitioner is the first time offender and is now discharging the work of a
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NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 video editor. There is no complaint against the revision petitioner after an isolated incident.
33. Taking note these aspects of the matter, the submission made on behalf of the revision petitioner needs to be considered though same is strongly opposed by learned High Court Government Pleader by contending that showing leniency would encourage the perpetrators of the crime to indulge in such activities and sending a wrong signal to the society.
34. However, taking note of the fact that revision petitioner is now aged about 43 years and he is an family person having a family to maintain and he is eking out his livelihood by discharging the job of video editor, this Court is of the considered opinion that period of two days undergone in judicial custody at the time of investigation can be treated as period of imprisonment by enhancing the fine amount in a sum of Rs.50,000/-.
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35. If sum of Rs.50,000/- is ordered to be paid as compensation to C.W.1 who is the victim in the incident, the ends of justice would be met.
36. Accordingly, following:
ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the accused for the offence punishable under Section 353 and 225 of IPC, the sentence passed by the learned Trial Magistrate modified by the First Appellate Court is further modified as under:
a. The custody period undergone by the accused in judicial custody at the time of investigation is treated as period of imprisonment and ordered to pay sum of Rs.50,000/- as compensation in addition to sum of Rs.5,000/- each for the offence
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NC: 2024:KHC:45877 CRL.RP No. 424 of 2017 punishable under Section 353 and 225 of IPC ordered by the learned Trial Magistrate confirmed by the First Appellate Court on or before 31.12.2024 failing which the order of the First Appellate Court stands restored automatically.
b. Out of the fine amount recovered, a sum of Rs.50,000/- shall be paid as compensation to P.W.1. c. Office is directed to return the Trial Court Records with copy of this order forthwith.
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(V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 89 CT: BHK