Karnataka High Court
B T Raghavendra S/O. Basavaraj vs The State Of Karnataka on 11 December, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL REVISION PETITION NO.2094/2012
BETWEEN:
B.T.RAGHAVENDRA
S/O.BASAVARAJ,
AGE : 30 YEARS,
OCC : EX-MONITORING AND
EVALUATION OFFICER IN FPI
R/O.BAPIREDDY CAMP,
GANGAVATHI TQ.,
KOPPAL DIST.
... PETITIONER
(BY SRI J.BASAVARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT DHARWAD.
... RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE JUDGMENT PASSED BY THE PRINCIPAL SESSIONS
JUDGE, BALLARY IN CRIL.APPEAL NO.60/2010 DATED 20.01.2012
2
AND CONFIRM THE ORDER PASSED BY THE I ADDITIONAL CIVIL
JUDGE (JR.DN) AND J.M.F.C. BALLARY IN C.C. NO.431/2008
DATED 19.04.2008, IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused being aggrieved by the Judgment of conviction passed by Principal Sessions Judge at Ballari in Criminal Appeal No.60/2010 vide order dated 20.01.2010, by reversing the Judgment of acquittal passed by I Additional Civil Judge (Jr.Dn.) and J.M.F.C., Ballari in C.C.No.431/2008 dated 19.04.2008.
2. For the sake of convenience, parties shall be referred to as their ranks before the trial Court.
3. Brief facts leading to filing of this case are as under :
It is the case of prosecution that a complaint was lodged by one Sri Sridhar Kulkarni on 17.12.2007 at about 8.30 p.m. stating that he was working as Branch Manager at 3 Family Planning Authority of India, where 12 persons were working under him. On 16.12.2007, there was a managing committee meeting, wherein the complainant was directed to inform his staff to improve their performance. Accordingly, complainant had called meeting on 17.12.2007 in his office at about 6.15 p.m. In the meeting petitioner/accused-
Raghavendra abused the complainant in filthy language. Thereafter, when the complainant intended to go out of the meeting, accused restrained him, abused him in filthy language, caught hold of his shirt and removed his chappal and slapped on the right cheek of complainant. Immediately, when the staff came to pacify the accused, he caught hold of neck of complainant and said that he will him. Immediately, the other staff present in the office managed to rescue the complainant, during which time complainant suffered abrasion over his neck and injuries. Accused further abused complainant stating that he was saved by the staff; otherwise, he would have killed him. Thereafter, complainant informed this fact to the Chairman of the Committee Smt.Sharada Malebennur and lodged a written complaint to 4 the police. Based on the said written complaint, a case came to be registered against accused.
4. After the investigation was conducted, a charge sheet came to be filed against accused for the offence punishable under Sections 341, 323, 504, 355 and 506 of I.P.C. Accused pleaded not guilty and claimed to be tried.
5. Thereafter, in order to prove the guilty of accused prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to 14 and got marked material objects M.Os.1 and 2 on its part and closed its side. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., wherein accused denied all the incriminating evidence against him. Accused examined himself as D.W.1 and one more witness as D.W.2 and got marked Exs.D1 to 3 in support of his defence. After going through the entire material both oral and documentary and noticing the discrepancies in the statement of witnesses, the trial Court came to a conclusion that prosecution failed to 5 prove the guilt of accused beyond all reasonable doubt and accordingly acquitted the accused for the aforesaid offences.
6. Being aggrieved by the said Judgment of acquittal respondent/state preferred an appeal before the Principal Sessions Judge, Ballari in Criminal Appeal No.60/2010, it was the contention of respondent/State that judgment of acquittal passed by trial Court was contrary to the material placed on record and has ignored the evidence of eyewitness led by prosecution as P.Ws.2 to 8. The appellate Court reevaluated and reconsidered the entire material evidence and after analyzing the same came to the conclusion that the trial Court has not appreciated the evidence of witnesses which were natural and believable evidence. Further, appellate Court came to the conclusion that the evidence of P.Ws.14 and 15 were ignored by the trial Court while acquitting the accused. After re-consideration of the material evidence, the appellate Court did not find any reason to agree with the findings of trial Court and held that the approach of trail Court was strange as the evidence of 6 prosecution P.Ws.2 to 8 are corroborative statements to each other and there was absolutely no reason to discard such evidence and accordingly allowed the appeal partly and set aside the Judgment of acquittal passed by trial Court and convicted the petitioner/accused for the offence punishable under Sections 323 and 355 of IPC and sentenced the accused to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months for the offence punishable under Section 323 of IPC and further convicted the accused for the offence punishable under Section 355 of IPC and sentenced him to pay fine of Rs.2,000/-, in default to undergo simple imprisonment for a period of six months.
7. Being aggrieved by the judgment of conviction passed by the Appellate Court for the offences punishable under Section 323 and 355 IPC, petitioner - accused is before this Court challenging the correctness, illegality and propriety of the impugned order of the Appellate Court. 7
8. Heard Sri J.Basavaraj, learned counsel for petitioner and learned High Court Government Pleader for respondent - State.
9. It is vehemently contended by the learned counsel for petitioner that though this petition is filed under Section 397 Cr.P.C., which is revisional jurisdiction of this Court, this Court will have to appreciate, analyse and re-evaluate the material evidence both oral or documentary in deciding this case in view of the fact that the trial Court has acquitted the accused, but the Appellate Court has convicted accused for the offences punishable under Sections 323 & 355 IPC, thereby this Court would be acting as first Court of appeal. Though this petition is filed under Section 397 Cr.P.C., the powers vested in this Court under Section 401 Cr.P.C. provides ample power to this Court to re-appreciate the evidence on record, when illegality is writ large exfacie.
10. Learned counsel further contends that the conviction order passed by the appellate Court is contrary to the material evidence and documents produced, hence the 8 same requires to be set aside and reversed. He further contends that PW2 to 8 have not fully supported the case of the prosecution and PW9 to 12 have turned hostile and not supported the case of prosecution. Hence, after considering these material error, defect and inconsistency in the statement of witnesses, the trial Court has rightfully acquitted the accused of all the charges.
11. Learned counsel further contends that the Appellate Court has committed a serious error in not analyzing and re-evaluating the evidence and has mechanically come to a conclusion with regard to the guilt of accused. Learned counsel further contends that PW6 has admitted that in the meeting Complainant has assaulted accused and while pacifying the party, the bangles were broken and fell on the ground, which clearly establish that it was not the accused who assaulted the Complainant, but the Complainant assaulted the accused.
12. Learned counsel further contends that all the witnesses have not identified the material objects and hence 9 it cannot be said MO1-Chappal was used in the assault of PW1. Further it is contended by the learned counsel that the evidence of the Doctor-PW13 has been ignored by the Appellate Court wherein he has given an opinion that the injuries could have been caused by breaking of bangles. He further contends that Appellate Court has ignored Ex.P1, which shows that there are some injuries on the stomach and back of the petitioner - accused, which has not been appreciated. Ex.P1 is the medical record, which is dated 18.11.2001, the same was appreciated by the trial Court, based on which acquittal order was passed. Learned counsel further contends that in the meeting held by Complainant and others, most of the employees, who are prosecution witnesses herein, were belonging to the same caste of Complainant and some of them were his relatives. Therefore, evidences of PW2 to 8 cannot be believed, as they are interested witnesses.
13. Learned counsel further contends that the trial Court has appreciated the entire material evidence thread 10 bare and had acquitted the accused. He further contends that due to the said inconsistency and discrepancies in evidence of prosecution, the Appellate Court could have acquitted the accused for the offences punishable under Section 341, 504, 506 of IPC, by correctly noticing that no case was made out by the prosecution. However, he contends that Appellate Court has committed a serious error in convicting the accused for the offences punishable under Section 323 & 355 of IPC, thereby causing grave mis- carriage of justice to accused. It is further contended by the learned counsel for petitioner - accused that there was no motive or intention to create any untoward incident in the meeting by the accused. In fact it was the Complainant who assaulted the accused and despite that accused did not file any Complaint who assaulted the accused and despite accused lodging a complaint before the jurisdictional Police the same was not registered it was refused. On these submissions he seeks to allow this petition and set aside the impugned order and acquit the accused of all the charges. 11
14. Per contra, learned High Court Government Pleader contends that the prosecution has proved the guilt of accused beyond all reasonable doubt. He further contends that the conviction of the accused for the aforesaid offences is based on the material evidence both oral or documentary and is in accordance with law and the same does not call for any interference. Learned Government Pleader further contends that prosecution witnesses PW2 to 8 have clearly narrated the incident on 17.12.2007 which occurred in the meeting held by the Complainant and Branch Manager. All these witnesses have supported the case of the prosecution and hence there is no inconsistency in the statement of the accusation. Therefore, it cannot be said that there is no material to prove the guilt of accused. Learned Government Pleader further contends that the evidence of PW13 and 15 also supported the case of the prosecution. He further contends that it is in dispute even by the accused that there was an altercation on 17.12.2007 and contends that it was the accused who started abusing the Complainant and took the first step of hitting PW1 in front of every member of the 12 community, who have been examined as PW2 to 8. He further contends that even if there are any minor discrepancies in the statement of the witnesses which are not fatal to the case of the prosecution, as most of the witnesses corroborate the statement and the same support the case of the prosecution.
15. Learned Government Pleader further contends that the theory put forth by the accused that he was assaulted by the Complainant herein cannot be believed for the simple reason that nothing prevented the accused to lodge a police complaint against the Complainant for allegedly assaulting on him. He further contends that Ex.D1 is nothing but an after thought created by the accused and Ex.D2 is the complaint, which is claimed to have lodged by the accused on 09.01.2008, which is also an after thought and created document.
16. Learned Government Pleader further contends that there are no material discrepancies and major inconsistency or lacuna in the investigation. Therefore, after 13 appreciating and analyzing the material on record both oral or documentary, the Appellate Court has rightfully convicted the accused for the offences punishable under Sections 323 and 355 IPC, which does not call for any interference by this Court.
17. Having heard the learned counsel for petitioner and learned High Court Government Pleader for respondent- State, the only point that arises for consideration before this Court is:
"Whether there is any illegality or perversity or arbitrariness in the impugned order passed by the Appellate Court reversing the judgment of acquittal of the trial Court?"
18. In order to answer the above point, let us have a cursory look on the factual matrix of the case. It isnot in dispute that on 17.12.2007 a meeting was called by the Branch Manager, Family Planning Authority of India, to improve their performance. In the said meeting called by the Complainant, accused was also present as one of the staff member of the committee. It is not in dispute that on the 14 said date, ie., 17.12.2007 during the course of meeting, there was altercation between the accused and Complainant. Though it is the case of the prosecution that accused abused the Complainant and assaulted him with chappal. The theory putforth by the accused is that Complainant - PW1 first stepped on assaulting accused and in the course of such situation there may have been some abrasion and brushes on the Complainant, it must be attributed to the accused alone.
19. Be that as it may, these are the theories putforth by the parties to suit their needs. However, the prosecution will have to prove its case on its own merits by cogent material evidence both oral and documentary. In the present case PW2 to 8 have deposed before the Court and have narrated the incident in a sequential manner, which shows that there was an incident of assault by the accused against PW1, and some of the witnesses, even have denied the suggestion that accused had sustained injuries during this incident. It was also narrated by PW.2 to PW.8 that accused 15 abused PW.1 in filthy language. All these aspects cannot be ignored by the Court when prosecution witnesses have narrated these aspects in a sequential order without there being any discrepancy. No doubt PW.9 to PW.12, panchas have not supported the case of prosecution and have turned hostile. PW.13 doctor who examined PW.1 on the same day i.e., 17.12.2007 at 10.10 p.m. has issued a wound certificate as per Ex.P.12 which clearly reads the injuries as under:
"A CLW on the neck (right side) measuring 3 x 2 cm.
A CLW on the neck (left side) measuring 3 x 2 cm."
20. The above injuries are stated to be simple in nature. Further PWs.14 and 15 who are official police witnesses have supported the case of prosecution. Though accused examined himself as DW.1 by stating that due to the act of complainant injuries were sustained by him for which he had taken medical treatment on next day as per Ex.D.1, in my opinion the same cannot be accepted as it appears to 16 be an after thought, since nothing prevented accused from lodging a police complaint on the same day. It is also seen that complaint alleged to have been given by accused on 9.1.2008 appears to be an after thought filed with malafide intentions.
21. It is seen from evidence of prosecution that nothing worthwhile has been elicited by accused to disprove the case of prosecution. Merely for the reason that members of committee were all belonging to the same caste, it cannot be said that evidence adduced by prosecution witnesses which supports the case of prosecution cannot be believed. It is an important aspect to note that it is nobodies case that incident did not occur on 17.12.2007 and once incident is admitted, onus is on prosecution to prove the guilt of accused beyond all reasonable doubt and if accused is trying to prove an exception to the case, then burden is on him to prove the said exception as contained in section 105 of Evidence Act.
22. In the present case nothing material has been produced by accused to disprove the case of prosecution and 17 to establish the theory put forward by him. Therefore after analyzing entire material evidence both ocular and documentary, appellate Court has rightfully come to a conclusion convicting accused for the offence punishable under section 323 and 355 of IPC. So also the appellate Court has rightfully acquitted accused for the offence punishable under sections 341, 504, 506 of IPC as there were no supporting clinching material evidence to prove the guilt of accused for the said offences. Therefore prosecution has proved the guilt of accused by cogent material evidence for the offence punishable under section 323 and 355 of IPC.
23. Though there are minor inconsistencies, the same is not fatal to the case of prosecution. I do not find any material irregularities or arbitrariness or perversity in the impugned judgment passed by appellate Court. The sentence imposed therein is also reasonable and commensurate to the offence. Petitioner/accused has not pointed out any material irregularity or illegality committed by appellate Court in 18 convicting accused which would call for interference by this Court. Accordingly I pass the following order.
ORDER Petition is dismissed.
Judgment of conviction passed by appellate Court is confirmed.
Sd/-
JUDGE Ckk/VK/Mrk/-