Karnataka High Court
Krishna vs State Of Karnataka on 14 December, 2018
Author: K.Somashekar
Bench: K.Somashekar
1
THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL REVISION PETITION No.955/2011
BETWEEN:
KRISHNA
AGED ABOUT 37 YEARS
S/O KUNTAIHNA RAMEGOWDA
NEXT TO AMMASANA HOUSE
HOSABEEDHI, HINKAL, MYSORE.
...PETITIONER
(BY SRI P. NATARAJU, ADV.)
AND:
STATE OF KARNATAKA
BY VIJAYANAGAR POLICE STATION
MYSORE
REPRESENTED BY STATE PUBLIC
PROSECUTOR
HIGH COURT BUILDING
BANGALORE.
...RESPONDENT
(BY SRI.S.T.NAIK, HCGP)
THIS CRL.RP. IS FILED UNDER SECTION 397(1) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 27.07.2011
PASSED BY THE PRL. DIST. AND S.J., MYSORE IN
CRL.A.NO.73/11 AND ORDER DATED 20.04.2011 PASSED BY
THE JMFC, (II COURT), MYSORE IN C.C.NO.993/2007.
THIS CRL.RP. COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:-
2
ORDER
This criminal revision petition is directed against the judgment and order rendered by the learned Principal District and Sessions Judge, Mysore, in Crl.A.No.73/2011 dated 27.07.2011 wherein the judgment and order of conviction and sentence rendered by learned JMFC (II Court), Mysore, in C.C.No.993/2007 dated 20.04.2011 has been allowed in part by confirming the order of conviction for the offence punishable under Section 332 and 353 of IPC, whereas, modifying the order of sentence against accused for the offences punishable under Sections 332 and 353 of IPC.
2. The trial Court has passed the following impugned judgment of conviction:
(i) Accused 1 and 2 are convicted under Section 248(2) of Cr.P.C. for the offence punishable under Section 353 of IPC and are sentenced to undergo S.I. 3 for a period of 2 years and to pay fine of Rs.5,000/-
each, in default to undergo S.I. for 6 months.
(ii) Accused 1 and 2 are convicted under 248(2) of Cr.P.C. for the offence punishable under Section 332 of IPC and are sentenced to undergo S.I. for a period of 3 years and to pay fine of Rs.5,000/-, in default to undergo S.I. for 6 months.
3. Being aggrieved by the judgment of conviction and sentence passed by the Trial Court, accused No.2-Krishna filed an appeal in Criminal Appeal No.73/2011, wherein the appeal was allowed by confirming the conviction however, modifying the sentence of three years by reducing it to one year for the offence punishable under Section 332 of IPC and fine of Rs.5,000/- being reduced to Rs.2,000/- and sentence of two years reduced to one year for the offence punishable under Section 353 and fine of Rs.5,000/- being reduced to Rs.2,000/-. These two 4 judgments are challenged by accused No.2-Krishna S/o.Kuntaihna Ramegowda in this criminal revision petition seeking acquittal by urging various grounds.
Accused No.1-Basavanna S/o Marigowda, is said to have died during the pendency of the case and the case against him stood abated.
4. Factual matrix of this revision petition are as under:
On 21.06.2004, at about 5.30 p.m. the accused No.1-Basavanna and accused No.2-Krishna had barged into the chamber of PW2-police Inspector attached to Vijayanagar Police Station, Mysore, and asked him to send the accused persons, who were arrested by him in connection with Cr.No.59/2004, and when PW-2 refused to send the accused persons, accused No.1- Basavanna and accused No.2-Krishna, with common intention, enraged against PW2 and caught hold of his shirt collar and caused obstruction in discharging his 5 duties as a Government servant. When altercation took place in between accused Nos.1 and 2 with PW2, CWs.2 to 9-the police staff attached to the Vijayanagara Police Station came to rescue PW2-police Inspector from the clutches of the accused, they abused them in filthy language and assaulted PW1-Diwakar and PW.3- Mallikarjuna respectively. It is further stated that the accused have given life threat to PW2-police inspector. In pursuance of the act of the accused, a complaint came to be registered in Crime No.60/2004. Thereafter, case has been investigated by the I.O. and laid charge sheet against the accused before the concerned jurisdictional court for the offences punishable under Sections 353, 332 and 506 r/w 34 of IPC but the trial Court in C.C.No.993/2007 has held conviction for the offence punishable under Sections 332 and 353 of IPC, which is incorporated in the operative portion of the impugned judgment whereas offence under Section 506 IPC, the accused were acquitted as there is no sufficient 6 evidence as put forth by the prosecution to prove the guilt of the accused.
5. Learned counsel for the petitioner herein contends that PW1-Diwakara and PW3-Mallikarjuna, being the Police Constables were attached to the Vijayanagar Police Station, Mysore, wherein PW2 was working as Police Inspector on the particular point of time.
6. According to the learned counsel for the petitioner, on 21.06.2004, at about 5.30 p.m. the accused No.1-Basavanna and accused No.2-Krishna had barged into the chamber of PW2-police Inspector attached to Vijayanagar Police Station, Mysore, and asked him to send the accused persons, who were arrested by him in connection with Cr.No.59/2004 and when PW-2 refused to send the accused persons, accused No.1-Basavanna and accused No.2-Krishna with common intention enraged against PW2, caught 7 hold of his shirt collar and caused obstruction in discharging his duties as a Government servant. When altercation took place in between accused Nos.1 and 2 with PW2, CWs.2 to 9-the police staff attached to the Vijayanagara Police Station came to rescue PW2-police inspector from the clutches of the accused, they abused all of them in filthy language and assaulted PW1- Diwakar and PW.3-Mallikarjuna also. It is further stated that the accused have given life threat to PW2- police Inspector. There is no specific evidence put forth by the prosecution even though PWs.1 and 4, who are said to be injured, have been examined by the prosecution and also got marked Exs.P9 and P10- wound certificates issued by PW.10-Dr.Hosamani, who had given treatment to them. But, evidence of PWs.1 and 4 was contrary to the evidence of PWs.5 and 17. The I.O., conducted the spot mahazar-Ex.P3 in their presence (i.e., PWs. 5 and 17) where the incident took place against PW2-Police Inspector, but PWs.5 and 17 8 have not stated anything about the contents in the said mahazar. PWs.5 and 17 have also acted as panch witnesses relating to the seizure mahazar MO1-uniform shirt and MO2-name plate. But, these witnesses have not been withstood the fulcrum of that seizure mahazar said to be conducted in their presence. But, the evidence of PWs.5 and 17 contradicts to the evidence of PWs.1 and 3, being the Police Constables attached to the Vijayanagar Police station, Mysore. The case of the prosecution is that accused had altercation with PW2- police Inspector attached to Vijayanagar Police Station at about 5.30 p.m. by barging into his chamber whereas the contents in Ex.P1-complaint does not specifically state regarding the allegations made against the accused No.1-Basavanna and accused No.2-Krishna that the accused entered into the chamber of PW2-police inspector. Therefore, the theory which is set up by the prosecution in order to prove the guilt of the accused contradicts with each other with regard to 9 the incident which took place in the presence of PWs.5 and 7. These eyewitnesses have not withstood the statements said to have been recorded by the I.O. during the course of investigation. However charge sheet has been filed against the accused for the offences punishable under Sections 353 and 332 of IPC.
7. PWs.14 and 15 being the Police Constables have been examined for the prosecution relating to the allegations made in the complaint at Ex.P1, but these witnesses have partially withstood the contents in their statements. That itself indicates as a clouds of doubt in the case as put forth by the prosecution that accused barged into the chamber of PW2-Police Inspector attached to Vijayanagar Police Station, Mysore on 21.06.2004 at about 5.30 p.m. wherein altercation took place with PW2 and also extended life threat to him. PW10-Doctor examined PW1 and PW3-Police Constables, who were the injured persons in the said 10 incident. Merely by marking Exs.P9 and 10-wound certificates, it cannot be said that the prosecution has established the guilt of the accused beyond reasonable doubt that the accused - Basavanna and Krishna entered into the chamber of PW2-Police Inspector and after altercation with him, they caught hold of his shirt collar thereby causing obstruction in discharging his duty as narrated in the complaint-Ex.P1. The evidence of the PW-4 ASI attached to Vijayanagar Police Station, Mysore, is contradictory to the evidence of PWs.14 and PW15, who are the Police Constables, have not supported the case of the prosecution to the fullest extent. Whereas, PWs.5 to 7 who have been subjected to examination for prosecution, have not been stated in their evidence on par with the averments made in the complaint-Ex.P1 said to have been given by the PW2- Police Inspector attached to Vijayanagar Police Station. The Trial Court in C.C.No.993/2007 has misdirected and mislead the entire evidence of the aforesaid 11 witnesses of the prosecution and erroneously came to the conclusion that the prosecution has proved the guilt of the accused for the offences punishable under Sections 332 and 353 of the IPC. The judgment of conviction and sentence passed by the trial Court has been challenged before the First Appellate Court in Crl.A. No.73/2011 wherein the appellate Court also did not appreciate the evidence placed by the prosecution in proper perspective manner relying upon the incident narrated in the complaint-Ex.P1 filed by the Police Inspector-PW2. Based upon the complaint-, spot mahazar and seizer mahazar was conducted in the presence of PWs.5 and 17 by an I.O., but, in this case, I.O. has not been examined relating to recording of the witnesses. But, these witnesses have not withstood the fulcrum of spot mahazar-Ex.P3 and seizure mahazar-Ex.P4. Moreover, the evidence of these witnesses contradict with the evidence of PWs.5 to 7. These witnesses have been examined for the 12 prosecution as independent witnesses but they did not support the case of the prosecution in respect of their statement. The evidence of these witnesses have not been properly appreciated by the appellate court in Cr.A.No.73/2011 but altered the judgment rendered by the trial Court in C.C.No.993/2007 dated 20.04.2011. There appears to be miscarriage of justice. Therefore, learned counsel for the petitioner seeks modification of the judgment of conviction and sentence rendered by both the Courts below and to revisit the impugned judgment and acquit the accused by allowing this revision petition for the charges leveled against him.
8. Per contra, learned HCGP for the State draw the attention towards the contents of Ex.P1-complaint filed by PW-2 Police Inspector attached to Vijayanagar Police Station, Mysore, wherein he has stated in his evidence that on 21.06.2004 at about 5.30 p.m. the accused, Basavanna and Krishna, barged into his 13 chamber and asked PW2 to release the accused who have been apprehended by him in Cr.No.59/2004. When PW2 refused, accused No.1 and 2 caught hold of his shirt collar (uniform) and also abused him in filthy language obstructing him in discharging his duty. When there was altercation between PW2 and accused- Basavanna and Krishna, other staff members intervened to rescue PW2 from the clutches of the accused. The accused also extended life threat to PW2. The same has been narrated in PW2's complaint-Ex.P1. Subsequent to filing of the complaint by PW2, a case has been registered by recording FIR-Ex.P2 and thereafter the case has been taken up for investigation by the I.O. and he conducted spot mahazar-Ex.P3 in the presence of PWs.5 and 17. I.O. took up investigation and also seized uniform shirt-M.O.1 and name plate- M.O.2 which belonged to PW2-Police Inspector attached to Vijayanagar Police Station, Mysore. PW1 and PW3 are the injured witness to the incident and they have 14 been subjected to examination and Exs.9 and 10 are the wound certificates issued by Dr.Hosamani. All these oral and documentary evidence put forth by the prosecution has been appreciated by the trial Court in C.C.No.993/2007 and has rightly come to the conclusion that the prosecution has proved the guilt of the accused under Sections 332 and 353 of IPC. However, the judgment of conviction and sentence has been challenged in Crl.A.No.73/2011 wherein it has modified the judgment of conviction and sentence of the trial Court by confirming the conviction for the offence punishable under Sections 332 and 353 of IPC and reducing the sentence and fine amount under Sections 332 and 353 of IPC, after going through the entire evidence put forth by the prosecution so also the entire evidence on record. Therefore, no interference is called for by this Court as there are no merits in the criminal revision petition seeking for revisiting the impugned 15 judgment rendered by the Courts below and sought for dismissal of the petition as devoid of merits.
9. In this background, it is relevant to state that the prosecution has placed much reliance on the evidence of PW.1 to PW.4. PW1 and PW3 got injured and they have been provided treatment by PW10- Dr.Hosamani and issued wound Certificate at Exs.P9 and 10. PW2-Mohan, Police Inspector attached to the Vijayanagar Police Station, Mysore, filed the complaint Ex.P1 wherein he has stated in his evidence by reiterating the averments made in his complaint that the accused persons entered into his chamber and asked him to release the accused persons arrested by him in Cr.No.59/2004. When he refused to send them, accused-Basavanna and Krishna getting enraged, abused him in filthy language and causing obstruction in discharging his duty as a Government servant. While altercations between PW2 and the accused were going 16 on, PWs.1 and 3- being the Police Constables entered into the chamber and rescued PW2 from the clutches of the accused and also gave life threat to them. There is no dispute with regard to wound certificate issued by PW10-Dr.Hosamani at Exs.P9 and P10. The I.O. who investigated the case relating to Cr.No.60/2004 against the accused-Basavanna and Krishna, was not examined for the prosecution and the same has been observed by the appellate Court in Cr.A.No.73/2011. However, the prosecution have been examined PWs.1 to 17 in order to prove the guilt of the accused. PW2-Police Inspector attached to the Vijayanagar Police Station, Mysore, is the prime witness to the incident. The oral evidence of PW2 has lot of improvements and it is not corroborative with the averments of complaint-Ex.P1. Though the same has been stated by the prosecution, to prove the guilt of the accused the prosecution has placed much reliance on the evidence PWs.1 and 3-injured witnesses, treated by PW10-Dr.Hosamani and issued wound 17 certificates at Exs.P9 and P10, but at a cursory glance of evidence of PWs.8 and 9, did not support the case of the prosecution. PW5 and 17 who are the witnesses to the incident have been secured as they have subscribed to the Ex.P3-spot mahazar and Ex.P4-seizure mahazar said to be conducted by the I.O. in the presence of these witnesses. These witnesses did not withstood the fulcrum of spot mahazar and seizure mahazar. Though these witnesses have been subjected to cross- examination, nothing is elicited in their evidence to believe the contents of these two exhibits i.e. P3 and P4 said to be conducted by the I.O. in their presence. PWs.1, 4, 11, 14 and 15 are the official witnesses and they have subjected to examination to prove the guilt of the accused for the aforesaid offences. But, their evidence is contradictory to the evidence of PWs.5, 6 and 7, who are the independent witnesses for the prosecution, and their evidence is contradictory to Ex.P1-complaint filed by PW2-Police Inspector attached 18 to Vijayanagar Police Station, which further contradict the evidence of PWs.8 and 9 and so also the evidence of PWs.5 and 17. From this it could be inferred that though these witnesses have been subjected to examination to prove the guilt of the accused, they did not support the case of the prosecution.
10. There is no dispute with regard to the incident. But, the I.O. has not been examined for the prosecution and there is lot of inconsistencies in the evidence of the witnesses. The trial Court as well as the appellate Court have not noticed the inconsistencies and contradictions arose in the material evidence of PWs.1 to 4 and so also PW5 to PW17 who have been secured by the I.O. during the course of investigation. Therefore, the prosecution ought to have secured Investigating Officer who investigated and filed charge sheet against the accused by conducting spot mahazar and also seizer mahazar. The same has not been done 19 by the prosecution to prove the guilt of the accused. Therefore, it is said that the theory set up by the prosecution with regard to the trial faced by the accused for the offences punishable under Sections 332 and 353 of IPC are found to be in camouflage and clouds of doubt arise in the mind of the Court and the same has been extended to the accused. Therefore, in the instant case, a case in Cr.No.59/2004 came to be registered by the Police Inspector-PW2 attached to the Vijayanagar Police Station, Mysore, wherein some of the accused have been arrested by him and therefore, the accused- Basavanna and Krishna had been to the Vijayanagar Police Station to make some enquiry against those accused. In the meanwhile, exchange of words took place between PW2 and the accused. But the same has not been properly elicited by the prosecution to prove the guilt of the accused even though PWs.5 and 17 said to be the independent witnesses to the incident and 20 they have turned hostile in respect of the statement recorded by the I.O.
11. For the aforesaid reasons, I am of the considered view that there is miscarriage of justice found in both the impunged judgment and both the Courts have erroneously convicted the accused. Therefore, in this revision petition, it requires to be revisited in terms of the aforesaid reasons and setting aside the judgment of conviction and sentence passed by both the Courts below.
12. Accordingly, I proceed to pass the following:
ORDER The revision petition filed by the accused No.2- Krishna under Section 397(1) of the Cr.P.C. is hereby allowed. The judgment of conviction and order of sentence rendered by the trial Court in C.C.No.993/2007 dated 20.04.2011 for the offences punishable under Sections 332 and 353 of IPC and 21 Crl.A.No.73/2011 dated 27.07.2011 are hereby set aside.
The accused-Krishna is hereby acquitted of the offences punishable under Sections 332 and 353 of IPC, for which he held charge.
If the accused has deposited any fine amount, as held in the impugned judgment, shall be returned to him with proper identification.
Sd/-
JUDGE TL