Mr P Ishwara vs The State Of Karnataka
2021 Latest Caselaw 662 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF JANUARY, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION No.203 OF 2015

BETWEEN :
Mr. P.Ishwara
S/o Ramu
Aged 57 years
R/at 4th Mile
Mullakad, Kavoor
Mangaluru
Dakshina Kannada
                                                 ...Petitioner
(By Sri Jeevan K, Advocate)

AND :
The State of Karnataka
By the Mangaluru
South Police
Mangaluru D.K.
                                               ...Respondent
(By Sri Mahesh Shetty, HCGP)

      This Criminal Revision Petition is filed under Section
397(1) read with 401 of Cr.P.C., praying to set aside the
judgment passed by the Prl. Sessions Judge, Mangaluru,
D.K., in Crl.A.No.234/2013 dated 02.12.2014 and also the
judgment      of   conviction    dated      03.06.2013     in
C.C.No.1146/2012 passed by the JMFC-II Court,
Mangaluru D.K., and to order for acquittal of the
accused/petitioner.
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      This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:

                              ORDER

Heard both sides.

2. This revision petition is filed by the accused in

C.C.No.1146/2012 on the file of JMFC-II Court, Mangaluru,

D.K., whereby the learned Magistrate convicted the

accused by judgment dated 03.06.2013, which was

challenged in Crl.A.No.234/2013 which came to be

dismissed upholding the conviction and sentence vide

judgment dated 02.12.2014 on the file of the Prl. District

and Sessions Judge, Mangaluru, D.K.

3. The brief facts which are necessary for disposal

of the revision petition are as under:

Victim girl who was a house keeper in a

departmental store, namely, 'MORE' shop located near

Malbar Gold at Falnir, Mangaluru, complained against the

watchman of the said shop who is the accused in the case

that on 14.01.2012 at about 9.00am, when she was in the

shop, accused pulled her towards him and tried to kiss on

her face and also used abusive words and threatened her

with dire consequences about disclosure of the incident

and thereby the accused outraged the modesty of the

victim girl and gave life threat.

4. Based on the complaint, jurisdictional police

registered a case in Crime No.5/2012 for the offence

punishable under Sections 354, 509 and 506 of IPC and

investigated the matter. After thorough investigation

police filed charge sheet and cognizance of the offences

was taken by the learned Magistrate and secured the

presence of the accused and charge was framed. The

accused pleaded not guilty and trial was held.

5. In order to prove the case, the prosecution has

examined 6 witnesses as PWs1 to 6 and relied on 7

documentary evidence and they were exhibited and

marked as Exs.P.1 to P.7. Among the prosecution

witnesses, PW1 is the victim girl and other witnesses are

panch witnesses and corroboratory witnesses who

supported the case of the prosecution.

6. On conclusion of the evidence on the side of

the prosecution, the accused statement as contemplated

under Section 313 Cr.P.C., was recorded, wherein the

accused denied all the incriminating circumstances and

filed a written statement of his version of the case.

Learned Magistrate on cumulative consideration of the

materials on record, held that the prosecution was

successful in proving the case and convicted the

accused/revision petitioner for the offences punishable

under Sections 354, 509 and 506 of IPC and passed the

following order:

"Accused is sentenced to undergo simple imprisonment for a term of six months and sentenced to pay a fine of Rs.2,000/- for the offence punishable under Section 354 of IPC. In default simple imprisonment for 2 months.

Accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under

Section 509 of IPC. In default simple imprisonment for 1 month.

Accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under Section 506 of IPC. In default simple imprisonment for 1 month".

7. Being aggrieved by the said conviction

judgment, the accused preferred an appeal before the Prl.

District and Sessions Court, Mangaluru, D.K., in

Crl.A.No.234/2013.

8. Learned Judge in the first appellate Court

secured the trial Court records and after hearing the

parties and on re-appreciation of the entire materials on

record, concurred with the conviction judgment passed by

the learned Magistrate and thereby dismissed the appeal.

It is those judgments which are the subject matter of this

revision petition.

9. Sri Jeevan K, learned counsel for the revision

petitioner vehemently contended that both the Courts have

lost sight of the genesis of the crime and ignored the

materials placed by the accused and did not consider the

version of the accused as to the incident and thereby there

is a gross injustice caused to the revision petitioner and

prayed for allowing the revision petition.

10. He further contended that when the

complainant/victim girl tried to thieve the articles in the

'MORE' shop, the accused has warned the complainant-girl,

which resulted in an incident, where the brother of the

victim girl and his friends assaulted the accused person,

whereby he was admitted to the hospital and in order to

preempt launching a criminal prosecution, the victim girl

has been used by her brother to file a false complaint

against the accused and said fact has been totally ignored

by the learned Magistrate as well as the first appellate

Court while passing the impugned judgment and thus

prayed for allowing the revision petition. Alternatively, he

submits that having regard to the age of the

accused/revision petitioner, the sentence passed by the

learned Magistrate and confirmed by the first appellate

Court is excessive and thus calls for interference by this

Court by extending the benefit of Probation of Offenders

Act.

11. Per contra, learned High Court Government

Pleader representing the State Public Prosecutor supported

the impugned judgment. He further contended that in

respect of the sentence is concerned, having regard to the

age of the accused, no mercy should be shown. The

materials on record would demand that the punishment as

ordered by the learned Magistrate confirmed by the first

appellate Court, should act as a deterrent for the people

like revision petitioner.

12. In view of the rival contentions of the parties,

the following points that would arise for consideration are:

(i) Whether the revision petitioner makes out any error apparent on the record so as to interfere with the findings of the leaned Magistrate in C.C.No.1146/2012, which has been confirmed by the first appellate Court in Crl.A.No.234/2013?

(ii) Whether the sentence passed by the learned Magistrate and confirmed by the first appellate Court is excessive?

13. The answer to the above points is as under:

Point No.1 : In the Negative

Point No.2 : In the Negative for the following:

REASONS

14. POINT NO.1:- In the case on hand,

complainant is the victim girl who has been examined as

PW1, she has categorically stated as to the incident in

detail in her examination in chief. It is a well settled

principle of law that in a matter of this nature, the

testimony of the victim girl can be the sole basis for

ordering conviction. No doubt there is an improvement in

the case of the complainant as to her written complaint

and the examination in chief. However, said improvement

has been properly considered by the learned Magistrate

and by the first appellate Court and held that a mere

improvement in the oral testimony of the victim girl is not

sufficient to doubt the entire case as is proved by the

prosecution and held that despite the improved portion of

the testimony of PW1, even if eschewed, the prosecution

case stands proved for the offence punishable under

Sections 354, 509 and 506 of IPC.

15. It is pertinent to note that the theory put forth

by the defence to explain the incident has not been

established by the defence at least by placing plausible

evidence on record. In the absence of such evidence the

argument put forth by the learned counsel for the revision

petitioner that both Courts have misdirected in recording a

finding that the accused has committed the alleged

offence, cannot be countenanced.

16. Further, the materials available on record

especially the oral testimony of PW1 has been rightly

appreciated by the learned Magistrate and the learned

District Judge in the first appellate Court. There was no

necessity for the PW1 to foist a false complaint against the

accused herein in the absence of any previous enemity or

animosity. The version as is put forth by the revision

petitioner that the elder brother of the victim girl assaulted

him is not proved in as much as in the hospital records he

has stated that some unknown persons have assaulted

him. When such is the material available on record,

learned Magistrate and the first appellate Court rightly

disbelieved the defence put forth by the accused/revision

petitioner. There is no other material on record which

would entitle the revision petitioner to seek interference by

this Court that too in the revisional jurisdiction.

17. In view of the foregoing discussions this Court

is of the considered opinion that the finding recorded by

the learned Magistrate which was confirmed by the first

appellate Court that the accused has committed an offence

punishable under Sections 354, 509 and 506 of IPC does

not suffer from any illegality or legal infirmity which calls

for interference by this Court in the revisional jurisdiction.

Accordingly point No.1 is answered.

18. POINT NO.2:- Insofar as the sentence is

concerned, learned Magistrate has convicted the accused

for the offence punishable under Sections 354, 509 and

506 of IPC and awarded simple imprisonment for a period

of six months for the offence punishable under Section 354

of IPC and awarded fine of Rs.2,000/- and for the offence

punishable under Sections 509 and 506 of IPC, learned

Magistrate has ordered only fine and default sentence of

simple imprisonment for one month each. Having regard

to the nature of the offence and age of the accused is

taken in to consideration, this Court is of the considered

opinion that there is no case made out by the revision

petitioner to interfere with the order of sentence passed by

the learned Magistrate and confirmed by the first appellate

Court. Accordingly point No.2 is answered and following

order is passed.

ORDER Revision Petition does not stand merit and rejected.

Revision Petitioner/accused is directed to surrender before the learned Magistrate forthwith to serve the sentence.

Office is directed to send back the records as early as possible.

Sd/-

JUDGE

KMV