Karnataka High Court
Sri Raajasab Alias Rajasab S/O. ... vs The State Of Karnataka on 1 October, 2024
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NC: 2024:KHC-D:14724
CRL.RP No. 100273 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.100273 OF 2022
(397(Cr.PC)/438(BNSS))
BETWEEN:
SRI RAAJASAB @ RAJASAB
S/O. YAMANOOR SAB MARANAL,
AGE. 41 YEARS, OCC. DRIVER,
R/O. KONASAGAR-583277,
TQ. YELBURGA, DIST. KOPPAL.
...PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADV. FOR PETITIONER)
AND:
THE STATE OF KARNATAKA,
BY YELBURGA POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-580001.
...RESPONDENT
(BY SRI JAIRAM SIDDI, HCGP FOR RESPONDENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., SEEKING TO ALLOW THIS
Digitally signed by CRIMINAL REVISION PETITION, BY SETTING ASIDE THE JUDGMENT
JAGADISH T R
AND ORDER OF CONVICTION AND SENTENCE DATED 22.07.2022
Location: HIGH
COURT OF PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
KARNATAKA KOPPAL IN CRIMINAL APPEAL NO.36/2021, THEREBY DISMISSING
THE APPEAL FILED BY THE PETITIONER AND CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION DATED 21.08.2021 PASSED
BY THE CIVIL JUDGE AND JMFC, YELBURGA IN CC NO.85/2014
THEREBY CONVICTING THE PETITIONER FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 323, 324, 353, 504, 506 OF IPC AND
SECTION 323 OF IPC, SENTENCING TO UNDERGO 6 MONTHS S.I.
AND FINE OF RS.500/- WITH DEFAULT OF FINE AMOUNT 2 MONTHS
SENTENCE INCREASES AND FOR OFFENCE PUNISHABLE UNDER
SECTION 324 OF IPC, SENTENCING TO UNDERGO 1 YEAR WITH
DEFAULT CLAUSE OF RS.2,000/- WITH DEFAULT CLAUSE OF FINE
AMOUNT 6 MONTHS SENTENCE INCREASES AND FOR OFFENCE
PUNISHABLE UNDER SECTION 353 OF IPC WITH DEFAULT CLAUSE,
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CRL.RP No. 100273 of 2022
SENTENCING FOR 1 YEAR 5 MONTHS AND FINE OF RS.1,000/- WITH
DEFAULT CLAUSE 6 MONTHS SENTENCING WILL INCREASE AND FOR
OFFENCE PUNISHABLE UNDER SECTION 504 OF IPC WITH DEFAULT
CLAUSE, SENTENCING FOR 3 MONTHS TO PAY A FINE OF RS.500/-
WITH DEFAULT CLAUSE 2 MONTH SENTENCING WILL INCREASE,
FOR OFFENCE PUNISHABLE UNDER SECTION 506 WITH DEFAULT
CLAUSE, SENTENCING FOR 1 YEAR TO PAY A FINE OF RS.1,000/-
WITH DEFAULT CLAUSE SENTENCE WILL INCREASE 5 MONTHS, IN
THE INTERESTS OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
DICTATING ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
ORAL JUDGMENT
(PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) In this revision petition filed under Section 397 read with Section 401 of Criminal Procedure Code (for short, "Cr.P.C"), the petitioner who is accused has challenged his conviction and sentence for the offences punishable under Sections 323, 324, 353, 504 and 506 of IPC, imposed by the Trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.
2. For the sake of convenience, the parties are referred to by their ranks before the Trial Court. -3-
NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022
3. A charge sheet came to be filed against the accused alleging that on 18.02.2024 complainant- Meerusab Totad was the Conductor and CW.4-Nagappa Ganiger was the Driver-cum-Conductor of K.S.R.T.C. Bus bearing registration No.KA-37/F-185 plying from Yalburga to Hanumapura and back via Konasagar, Vajrabandi and Tummaraguddi At around 5.30 p.m. when they were proceeding from Konasagar to Vajrabandi, infront of High School of Vajrabandi, accused was proceeding in a Tum Tum by tying another Tum Tum vehicle which had broken down. When suddenly accused stopped the Tum Tum on the road, it came infront of the Bus and the driver of the bus avoided accident within a distance of 3 inches. Therefore, the Driver of the Bus stopped the bus by the side of road and the conductor got down and advised the accused as to why he stopped the Tum Tum in the middle of the road. Accused picked up quarrel with him as well as the driver of the bus, who wants to his -4- NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 rescue and slapped the complainant on his cheek. When the driver of the bus went to the rescue of complainant, accused quarreled with him, abused in filthy language, assaulted with hands and bit him on his stomach right hand fingers and left portion of the chest and caused simple injuries. He also gave threat to the life of complainant and CW-4 and prevented them from discharging their official duty and thereby committed the offences punishable under Sections 323, 324, 354, 504 and 506 of IPC.
4. Accused contested the case by pleading not guilty. In order to prove the allegations, prosecution examined PWs.1 to 10 and got marked Exs.P.1 to 11.
5. During the course of his statement under Section 313 of Cr.P.C. accused denied the incriminating evidence led by the prosecution.
6. Accused has not led any defence evidence. -5-
NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022
7. The trial Court convicted the accused and sentenced him as detailed in the impugned Judgment and order.
8. The appeal filed by the accused came to be dismissed by the Sessions Court.
9. Aggrieved by the same, accused is before this Court contending that the impugned Judgments and orders are contrary to law, facts and evidence on record and as such liable to be set aside. The medical evidence is contrary to the oral testimony of the witnesses. Though the accused is a total stranger to the complainant, in the complaint his name is reflected and prosecution has not explained how the said details were known to the complainant. The case of the prosecution consists of manipulations. No test identification parade is conducted by the Investigating Officer. The private medical practitioner, who first examined the injured, is not cited as a witness. The -6- NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 teeth impressions are not collected creating doubt in the prosecution case.
9.1. No independent witnesses are examined in support of the prosecution case. According to the prosecution, the complaint was filed at 8.30 p.m., whereas the Wound Certificate state that at that time he was at the Hospital. To attract the provisions of Section 324 of IPC, use of deadly weapon is required and teeth bite would not attract the said provision. The witnesses have not stated the abusive words used by the accused to attract Section 504 of IPC. The prosecution has not proved intention on the part of the accused to deter complainant and PW.5 from discharging the duty and as such the offence punishable under Section 353 of IPC is not made out. Viewed from any angle the impugned Judgments and Orders are not sustainable and prayed to allow the petition, set aside the impugned Judgments and orders and acquit the accused.
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10. On the other hand, the learned High Court Government Pleader supporting the impugned judgments and orders of the trial Court as well as the Sessions Court, submitted that the identity of the accused is not disputed. In as much as, the fact that he was regularly plying on that road by transporting passengers in his Tum Tum. In fact, the accused has imputed motive to PWs.3 and 5 of false implication of the accused on the ground that there was competition between them and accused as he was taking away their passengers. He would further submit that the accused has not at all disputed his presence at the place of incidence through the testimony of PWs.3, 5 who are the Conductor and Driver of the bus and PW.6 Prakash, who is one of the passengers. The prosecution has proved the actual incident wherein the accused assaulted both PWs.2 and 5 and also bit PW.5, who came to rescue of PW.3. The other witnesses corroborate the case of prosecution. In the light of the same, the trial Court as -8- NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 well as the Sessions Court are justified in convicting the accused. The punishment imposed is also commensurate with the charges established against the accused and sought for dismissal of the petition.
11. Heard arguments of both sides and perused the record.
12. The fact that on 18.02.2014 PW.3 was the Conductor and PW.5 was the Driver of K.S.R.T.C. bus bearing registration No.K-37/F-185 plying from Yelburga-Hanumapura and back via Vajrabandi is not disputed by the accused. The evidence of PWs.3 and 5 prove this fact. The evidence of PW.9-Eshwarappa, Assistant Traffic Inspector coupled with Ex.Ps.10 trip sheet and Ex.P.11 daily report submitted by the Conductor, prove and corroborate with the testimony of PWs.3 and 5. PW.6, who is one of the passengers of the bus also prove that on the date of incident, PWs.3 and 5 -9- NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 were the Conductor and Driver of the bus in question on the said route via Vajrabandi.
13. PWs.3, 5 and 6 have deposed in unequivocal terms about the incident. Their evidence proved that when the incident took place, accused, who is the Driver of Tum Tum was towing another Tum Tum which was broken down by tying it to the first Tum Tum. Since knot of the rope used for tying the broken down Tum Tum opened, it started moving back. PW.5 the Driver of the K.S.R.T.C. bus was able to stop the bus within 3 inches and avoided accident. Therefore, PW.3 Conductor of the bus got down to advice the accused not to do so. Accused became angry and slapped PW.3. When PW.5 the driver intervened, accused started abusing him and when advised not to do so, accused bit him on his right thumb and stomach. It is pertinent to note that PW.6 is a handicap and having a pass issued by the K.S.R.T.C. It appears the Investigating Officer could not find out any
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 of the passengers travelled in the said bus. Since PW.6 is holding a pass and travelled on the date of incident in the bus in question, the Investigating Officer has questioned him and recorded his statement. He has denied the suggestion that on that day, he was not travelling in the said bus and to help PWs.3 and 5 he is giving false evidence. PWs.3, 5 and 6 are not having any ill will or motive to falsely implicate the accused.
14. Sofar as the contention of the accused that test identification parade is not conducted and as such the identity of the accused is not established. It is pertinent to note that accused is the driver of Tum Tum regularly plying on the said route. Therefore, he was a known person in the said area. Consequently, PWs.3, 5 and 6 were knowing him. Infact the accused has taken up a defence that as he was picking up passengers in the said route, PWs.3 and 5 were having ill-will against him. It goes to show that accused was seen by PWs.3, 5
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 and 6. Therefore, the question of holding test identification parade to establish his identity does not arise.
15. The defence has also claim that as per Ex.P.2 complaint and FIR, the complaint was received at 8.30 p.m., but at that time the injured were at the Hospital. It is pertinent to note that on receipt of information regarding the incident from the Hospital, the Investigating Officer has visited the Hospital and received the complaint. He has returned to the Police Station and registered the case at 9.25 p.m. Therefore, there is no discrepancy on that aspect.
16. After coming to know about the incident through telephonic communication, PW.9 Eshwarappa Angadi has sent PW.7 Mohammed Rafiq, another Driver to drive the bus in question. In turn, PW.7 has come to the spot took PWs.3, 5 and other passengers to Yelburga Bus stop and after leaving the passengers at
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 Yelburga, he took PWs.3 and 5 to the Hospital. The evidence of PWs.7 and 9 prove this fact. The evidence of PW.6, who is the eyewitness, establish the fact that before the incident took place, there were about 50 passengers in the bus, but after the incident only around eight passengers were left. When there is any breakdown of the bus or on account of some incident, there is uncertainty as to when the bus would proceed normally, some of the passengers who are able to reach the destination by other mode would choose to leave the bus. Only those who want an alternative arrangement to be made by the department would remain. In that way, it appears only around eight passengers were left, when PW.7-Mohammed Rafiq came and took the bus to the Yelburga. It appears the Investigating Officer has recorded the statement of PW.7 Mohammed Rafiq as though he is an eyewitness and till he reached the spot, the quarrel was going on. When he reached the spot, after one hour of receiving the information, it cannot be
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 expected that the quarrel was still going on. Therefore, rightly he has denied the suggestion by the prosecution that he has witnessed the accused assaulting PWs.3 and
5. The testimony of PWs.7 and 9 support and corroborate the evidence of PWs.3 and 5, who are the victims and injured.
17. So far as the medical evidence is concerned, PW.3 has deposed that when they went to Yelaburga, the Doctor was not present and he and PW.5 were treated by the nurse. PW.5 has also deposed that first he was treated by the nurse. However, he was not stated whether he was treated by the Doctor also. The testimony of PWs.3 and 5 on this aspect is not challenged by the prosecution by cross examining them and suggesting that at the Yelburga Government Hospital they were treated by the Duty Doctor. During his cross examination, PW.3 has deposed that when
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 they reach the Yelburga Government Hospital, it was 7:30 PM.
18. According to the prosecution, PW.8 Dr.Syeda Aisha Nagina is the Medical Officer at Yelburga Government Hospital, who treated PWs.3 and 5. She has deposed that on the date of incident at 8:30 p.m., he has examined and treated them and issued the Injury Certificates at Exs.P.5 and 6. She has denied the suggestion that when PWs.3 and 5 were brought to the Hospital, she was not present and therefore she has not treated them and later issued the Injury Certificates. As already noted, PW.3 has deposed in unequivocal terms that by the time they reach the Hospital, it was 7:30 p.m. and he has not deposed regarding PW.8 treating him and PW.5.
18.1. It appears that PW.8 was not present in the Hospital and therefore she has not treated PWs.3 and 5 or she came later and therefore in the Wound Certificate
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 the time of examination of PWs.3 and 5 is noted as 8:30 p.m., even though they reach the Hospital at 7:30 p.m. The fact that PW.8 is not able to give the details of the injuries suffered by PWs.3 and 5, including the number of bite marks found on PW.5 also create doubt whether she has in fact given treatment to them. For this reason, this Court is of the opinion that the prosecution has failed to prove that the accused has committed the offence punishable under Section 324 of IPC. However, the prosecution has established that accused has committed the offences punishable under Sections 323, 504, 506 and 353 of IPC.
19. Now coming to the punishment imposed by the trial Court and whether there is any scope for interference on that aspect. Sofar as the offence punishable under Section 323 of IPC is concerned, the punishment prescribed is imprisonment of either description which may extend to one year or with fine
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 which may extend to Rs.1,000/- or with both. Sofar as Sections 353, 504 and 506 of IPC are concerned, the punishment prescribed is imprisonment of either description for a term which may extend to two years or fine or with both.
20. The evidence placed on record prove that the accused was towing a broken down Tum Tum with the help of another Tum Tum by tying them together. Since the rope tying them gave away, the broken down Tum Tum started coming back and PWs.5 the Driver of KSRTC bus managed to stop his bus within 3 inches or else it would have resulted in accident. When PWs.3 and 5 tried to advise the accused, he not only failed to listen the advice, but also assaulted them. He bit PW.5 on his chest and right hand forefinger. Unfortunately, the prosecution failed to establish the medical evidence and therefore the accused is acquitted for the offence punishable under Section 324 of IPC. On account of the
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 accused quarreling and blocking the way, he prevented PWs.3 and 5 from discharging their official duty. He has also abused them in filthy language and given threat to their life. Taking into consideration these aspects, this Court is of the considered opinion that sentencing accused to undergo rigorous imprisonment for six months and pay fine of Rs.8,000/-, in default to undergo simple imprisonment for one month would meet the ends of justice for the offence punishable under Section 353 of IPC.
21. Sofar as the offences under Sections 323, 504 and 506 of IPC are concerned, sentencing accused to pay fine of Rs.4,000/- each, in default to undergo simple imprisonment for one month each would meet the ends of justice.
22. Out of the fine amount realized, a sum of Rs.15,000/- is ordered to be paid to PW.5-Nagappa
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NC: 2024:KHC-D:14724 CRL.RP No. 100273 of 2022 Karabasappa Ganiger and remaining Rs.5,000/- shall be paid to PW.3 Meerasab Shabuddinsab Totad.
23. To the above extent, the petition is allowed in part and accordingly the following:
ORDER
(i) Petition filed under Section 397 read with Section 401 of IPC by the accused is allowed in part.
(ii) Accused is acquitted of the offence punishable under Section 324 of IPC.
(iii) The Judgment and order of the trial Court (in CC.No.85/2014) and Sessions Court (in Crl.A.No.36/2021) regarding the conviction of accused for the offences punishable under Sections 323, 504, 506 and 353 of IPC are confirmed.
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(iv) The accused is sentenced to undergo rigorous imprisonment for six months and pay fine of Rs.8,000/- in default to undergo simple imprisonment for one month for the offence punishable under Section 353 of IPC.
(v) Accused is sentence to pay fine of Rs.4,000/- each, in default to undergo simple imprisonment for one month each for the offences punishable under Section 323, 504 and 506 of IPC.
(vi) Out of the fine amount realized,
Rs.15,000/- shall be paid to PW.5-
Nagappa Karabasappa Ganiger and
Rs.5,000/- to PW.3-Meerasab
Shabuddinsab Totad by way of
compensation.
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CRL.RP No. 100273 of 2022
(vii) Send back the Sessions Court and trial Court records along with copy of this order.
Sd/-
(J.M.KHAZI) JUDGE CKK List No.: 1 Sl No.: 12