Karnataka High Court
Sri. Peeraji S/O Mallappa Muchandikar, vs The State Of Karnataka, on 6 December, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6th DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL REVISION PETITION NO.2300 OF 2011
BETWEEN:
SRI. PEERAJI S/O. MALLAPPA MUCHANDIKAR,
AGED ABOUT 55 YEARS,
R/AT: PEERANWADI VILLAGE,
TQ AND DIST: BELGAUM.
...PETITIONER
(BY SRI. S.S. YALIGAR, ADV. FOR
SRI. MRUTYUNJAYA TATA BANGI, ADV.)
AND:
THE STATE OF KARNATAKA,
THROUGH SUB-INSPECTOR OF POLICE,
BELGAUM RURAL POLICE STATION,
BELGAUM.
...RESPONDENT
(BY SRI. RAJA RAGAVENDRA NAIK, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. SEEKING TO SET
ASIDE THE ORDER OF CONVICTION PASSED BY THE JMFC II-
COURT, BELGAUM, IN C.C.NO.235/2008 DATED 14.05.2010
CONFIRMED BY THE PRL. SESSIONS JUDGE, BELGAUM, IN
CRL.A.NO.78/2010 DATED 13.09.2011 AFTER CALLING FOR
RECORDS.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The accused-petitioner has filed this revision petition seeking to set aside the judgment and order dated 13.09.2011 passed in Criminal Appeal No.78 of 2010 on the file of the Court of Principal Sessions Judge, Belgaum, wherein, the learned Sessions Judge dismissed the said appeal filed against the judgment and order of conviction and sentence dated 14.05.2010 passed in C.C.No.235 of 2008 by the Court of JMFC, Court-II at Belgaum, convicting him for the offence punishable under Section 355 of the IPC and sentencing him to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months.
2. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The case of the prosecution in brief is that both the complainant as well as the accused were the members of the Gram Panchayat, Peeranwadi. On 26.01.2008 at 3 about 10.00 a.m., in the Kannada Medium Primary School at Peeranwadi, after flag hoisting, when the informant and others were having tea in the office room of the School, at that time, the accused picked up a quarrel with the informant questioning him as to where he had kept the old materials of Mahila Mandal and abused PW-1 in a filthy language as 'bosadi magane' and also took his chappal in his hand to assault him and criminally intimidated by giving life threat and thereby committed the offences punishable under Sections 504, 506 and 355 of the Indian Penal Code(hereinafter referred to as the 'IPC'). It is the further case of the prosecution that the members who had assembled there, rescued the informant.
4. Before the trial Court, the prosecution got examined PWs.1 to 10 and got marked Exs.P.1 to P.6. The defense got marked Exs.D.1 and D.2.
5. The learned Magistrate after considering the evidence and material on record was pleased to acquit the accused of the offences punishable under Sections 504 and 4 506 of the IPC. However, held the accused guilty of the offence punishable under Section 355 of the IPC and passed sentence to pay fine of Rs.5,000/-, in default, to undergo simple imprisonment for two months.
6. The appeal preferred by the accused before the Sessions Court came to be dismissed.
7. It is the contention of the learned counsel for the petitioner that the Courts below having acquitted the accused of the offences punishable under Sections 504 and 506 of the IPC, could not have convicted him for the alleged offence under Section 355 of IPC. He submits that no material objects have been seized or produced to believe the story of the prosecution and the case of the complainant has been totally falsified by non-seizure of the 'chappal' which is a material lacuna in the case of the prosecution. He further submits that admittedly there is some enmity and the complainant, by taking advantage of the situation, has filed a false case and therefore, seeks to set aside the judgment and order of conviction and 5 sentence passed by the trial Court, which was confirmed in the Criminal Appeal.
8. Per Contra, the learned High Court Government Pleader submits that both the Courts have held that the prosecution has established its case, insofar as the offence punishable under Section 355 of the IPC considering the evidence of PW-1, which is further corroborated by the evidence of PWs-2 and 5. He submits that non-seizure of 'chappal' is not fatal to the prosecution and seeks to dismiss the revision petition.
9. It is the case of the prosecution that on 26.01.2008 at about 10.00 a.m. in Kannada Medium Primary School, Peeranwadi, after flag hoisting, when the accused, PW-1 and others had assembled in the office room of the School, the accused picked up a quarrel with the complainant and abused him in filthy language and removed his chappal and pointed the same towards PW-1 with an intension to assault and further threatened him with dire consequences.
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10. Among the prosecution witnesses, PWs.4, 7 and 8, who are the eye-witnesses, have turned hostile. PW-1 has reiterated the averments in the complaint and has deposed in his evidence that, the accused abused in filthy language and threatened him with dire consequences and also removed his chappal and attempted to use criminal force. PWs-2 and 5 have corroborated the evidence of PW-1. The accused has denied having committed the offence as alleged by the prosecution and he has also denied the fact that he removed the chappal and attempted to assault the complainant. It is the defense of the accused that the complainant being a member of the Gram Panchayat, mis-appropriated the old materials of the Mahila Mandal and since he questioned the same, the complainant has come out with a false case.
11. PW-2 is the Ex-Chairman of the Gram Panchayat and PW-5 is one of the members of the Panchayat. It is suggested to the said witnesses that both the said witnesses belong to the group of complainant. 7
12. It is relevant to see that the trial Court, while appreciating the evidence, came to the conclusion at paragraphs 25 and 26 of the judgment that Sections 506(2) and 504 of the IPC are not attracted. However, it was concluded that since the accused took out the chappal and attempted to assault the informant, an offence punishable under Section 355 of the IPC is made out.
13. As rightly contended by the learned counsel for the petitioner, the prosecution has not seized the material object i.e., the chappal in the instance case. The entire allegations made against the accused is that the accused took out his chappal and attempted to assault PW.1. PW.3 and PW.6 are the panch witnesses to the spot mahazar- Ex.P-2. They only speak with regard to the drawing up of the spot mahazar. However, there is no whisper with regard to seizure of any material objects. Both the Courts have failed to appreciate this relevant aspect.
For the reasons stated above, I am of the view that the judgment and order of conviction and sentence passed 8 by the trial Court which is confirmed by the appellate Court, is not sustainable in the eye of law. Accordingly, I pass the following:
ORDER i. The Revision petition is allowed. ii. The judgment and order of conviction and sentence dated 14.05.2010 passed in C.C.No.235 of 2008 by the Court of JMFC, Court-II at Belgaum, convicting the accused/petitioner for the offence punishable under Section 355 of the IPC and confirmed by the Principal Sessions Judge, Belgaum, in Criminal Appeal No.78 of 2010 dated 13.09.2011 are set aside. The accused is acquitted of the said offence.
iii. The fine amount, if any, deposited by the accused shall be refunded to him.
iv. The bail bond stands cancelled.
Sd/-
JUDGE
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