H G Siddanagouda S/O Late ... vs The State Of Karnataka
2021 Latest Caselaw 3406 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 25TH DAY OF SEPTEMBER, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                   CRL.R.P.NO.2146/2013

BETWEEN:

H G SIDDANAGOUDA S/O LATE REVANGOUDA
AGE: ABOUT 30 YEARS,
OCC: AGRICULTURE,
R/O.HIRE KUMBALAGUNTE VILLAGE,
TQ: KUDLIGI, BELLARY DISTRICT.
                                                  ...PETITIONER
(BY SRI.B.G.INDI, ADV. FOR SRI.K.L.PATIL, ADV.)

AND:

THE STATE OF KARNATAKA
BY P.S.I.HOSALLI,
KUDLIGI, REPRESENTED BY SPP
                                              ...RESPONDENT
(BY SRI.RAMESH B.CHIGARI, HCGP)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W 401 OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 21.03.2013 BY THE FAST
TRACK COURT-III, HOSPET IN CRL.A.NO.146/2012 ON HIS FILE
CONFIRMING THE JUDGMENT AND ORDER PASSED BY THE
CIVIL JUDGE & JMFC, KUDLIGI, DATED 06.12.2012 IN
C.C.NO.427/2011 CONVICTING THE PETITIONER U/S 448 & 354
OF IPC.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
DICTATING ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
                                 2




                             ORDER

This criminal revision petition is filed against the

judgment and order passed by the Fast Track Court-III,

Hospet in Crl.A.No.146/2012 dated 21.03.2013 confirming

the judgment of conviction and order of sentence passed

by the Civil Judge & JMFC, Kudligi in C.C.No.427/2011

dated 06.12.2012 convicting the accused/revision

petitioner for the offences punishable under Section 448

and 354 of IPC and prayed for setting aside the impugned

orders by allowing the revision petition.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial court.

3. The brief factual matrix leading to the case are

that, complainant is the victim and she filed a complaint on

01.02.2010 alleging that on 25.11.2010 in the morning her

parents and elder brother went to their land and she had

been to her school and on account of Gouri festival the

school closed by 12.00 noon itself. Hence, she returned to

the house and when she was alone in the house, at about

12.30 p.m. accused No.1 came inside the house and pulled

her hand. Immediately, she cried and then he closed her

mouth and torn her blouse, thereby outraged her modesty.

Then biting his hands, she came out of the house crying

and then the accused ran away from the spot. The

neighbours C.Ws.2 to 4 saw the accused while he was

running away and thereafter C.W.3-Geethamma gave

water to her. In the evening, the parents of the victim

returned to their house and then she informed about the

incident. The elders have decided to hold a panchayat and

they summoned the accused, but he did not respond.

Thereafter, the elders have asked the parents of the

complainant to take appropriate steps by lodging the

complaint. As such, the complaint came to be lodged after

delay. On the basis of the complaint, case was registered

in crime No.148/2010 against accused Nos.1 to 5 for the

offences punishable under Section 448, 354, 114 r/w

Section 149 of IPC. Accused Nos.1 to 5 were arrested and

were enlarged on bail. The investigating officer

investigated the matter and submitted charge sheet

against accused Nos.1 to 5 alleging that accused Nos.2 to

5 have abetted accused No.1 in committing the offence.

Thereafter, learned Magistrate has taken cognizance of the

alleged offences on the basis of the charge sheet and

accused have appeared and were enlarged on bail. They

have also denied the charge leveled against them. Then

prosecution has examined in all 10 witnesses as P.Ws.1 to

10 and also got marked 6 documents as Exs.P1 to P6.

After conclusion of the evidence of the prosecution, the

statement of the accused under Section 313 of Cr.P.C. was

recorded to enable them to explain the incriminating

evidence appearing against them in the case of the

prosecution. The case of the accused is of total denial.

4. After hearing the arguments, the learned

Magistrate has acquitted accused Nos.2 to 5 and convicted

accused No.1 i.e., the present petitioner for the offence

punishable under Section 448 and 354 of IPC. He has

imposed sentence of imprisonment for three months with

fine of Rs.500/- for the offence under Section 448 of IPC

and also imposed sentence of imprisonment for a period of

six months with fine of Rs.500/- for the offence punishable

under Section 354 of IPC with default clauses.

5. Being aggrieved by this judgment of

conviction, the revision petitioner/accused has filed an

appeal in Crl.A.No.146/2012 on the file of the Fast Track

Court-III, Hospet and the learned Sessions Judge by his

judgment dated 21.03.2013 dismissed the appeal by

confirming the judgment of conviction passed by the trial

court. Being aggrieved by the concurrent findings of both

the courts below, the revision petitioner has approached

this court by filing this criminal revision petition under

Section 397 r/w Section 401 of Cr.P.C.

6. Heard the arguments advanced by the learned

counsel for the revision petitioner/accused and learned

High Court Government Pleader for the respondent-State.

Perused the trial court records.

7. Learned counsel for the revision petitioner

would contend that the judgment of conviction and order

of sentence passed by both the courts below are contrary

to law, facts and materials placed on record and suffer

from several infirmities. He would also contend that the

trial court has failed to appreciate the fact that all the eye-

witnesses have turned hostile and only on the basis of the

statement of the victim, the trial court has proceeded to

convict the accused. He would also contend that trial court

has failed to consider that there is a delay in lodging the

complaint. He would also contend that evidence on record

does not establish the offence as alleged and admittedly

there is a civil dispute between the parties in respect of

common wall and discharge of water. Hence, he would

contend that prosecution has failed to bring home the guilt

of the accused beyond all reasonable doubt. Both the

courts below have committed an error in convicting the

accused and sought for allowing the revision petition by

acquitting the revision petitioner. Alternatively, he would

contend that sentence of imprisonment may be set aside

by enhancing the fine as the accused is having number of

dependents.

8. Per contra, learned HCGP would contend that

both the courts below have appreciated the oral and

documentary evidence in detail and arrived at a just

decision. He would contend that victim has categorically

deposed regarding the offence and further, the accused

has set up the plea of alibi which he has failed to establish

and under Section 103 of the Evidence Act also he has

failed to substantiate the defence and as such, the

prosecution case is required to be accepted. He would also

contend that trial court imposed reasonable sentence and

as such, he would seek for rejection of the revision

petition.

9. Having heard the arguments and perusing the

records, it is evident that initially, the complaint was

lodged against five accused and accused No.2 to 5 were

alleged to have abetted the accused No.1. However, the

Trial Court has acquitted accused No.2 to 5 and only

convicted accused No.1. The state has not challenged the

acquittal of accused No.2 to 5 and as such, said finding has

reached finality.

      10.   As      per   the   case   of    the   prosecution,   on

25.11.2010,      in   the   morning,        the    parents   of   the

complainant were not in village and she had been to school

at 10.00 a.m. in Hirekumbalagunte village and returned by

12.00 p.m. She further deposed that at around about

12.30 p.m., the accused trespassed in her house and

dragged her and when she cried for help, he closed her

mouth and tore her blouse and then she bite his hand and

escaped from his clutches and came out of the house by

crying. She has also deposed that looking to the persons

gathering there, accused No.1 fled from the spot and in

this regard, she reported the matter to her parents, who

returned in the evening and thereafter, Panchayath was

held but as accused No.1 did not attend the panchayath,

the complaint was lodged as per the advise of the

panchayath.

11. PW1 was cross-examined at length but nothing

was elicited so as to elicit any credit worthy admissions.

Except formal denials, there are no other suggestions

made and very interestingly, the accused has set up a plea

of alibi during the course of cross-examination of PW1

suggesting that on 25.11.2010 he had been to

Ranganakere village in Chikkanayakanahalli for attending

the marriage. The witness though admitted that his family

members had gone for attending the marriage, she has

denied the fact that the accused had gone for attending

the marriage and she has specifically asserted that the

accused was present in the house. PW2 and PW3 have

turned hostile.

12. PW4/Sharanappa is the father of the victim girl

while PW5 Channamma is the mother of the victim. Both of

them have supported the case of the prosecution and

reported that when they returned in the evening, the

victim has narrated the incident. During the course of

cross-examination of these witnesses, except formal denial

nothing was elicited and very interestingly, during the

course of cross-examination of PW6, a similar suggestion

was made that the accused was not present and he had

been to Ranganakere in Chikkanayakanahalli for attending

the marriage and the witness has denied the said aspect.

Hence, the suggestions made to PW1 and PW6 establish

that accused has set up the plea of alibi. PW9 and PW10

are the investigating officers.

13. The evidence on record itself establishes that

the complainant has stood a test of cross-examination.

Very interestingly, the accused has set up plea of alibi.

When accused has set up the plea of alibi asserting that he

was not present at the spot when the alleged incident has

taken place, it is for him to establish the said fact as per

Section 103 of the Evidence Act, which reads as under:

103.Burden of proof as to particular fact.

- The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by

any law that the proof of that fact shall lie on any particular person.

Hence, it is for the accused to establish that he was

not present at the spot by leading cogent evidence to

prove the plea of alibi as set up by him. But except formal

denial, he has not made any attempts to substantiate his

contention.

14. Mere denial or suggestion does not amount to

proof and he is required to prove his defence on the basis

of preponderance of probabilities. No doubt there is a

delay in lodging the complaint, but proper explanation is

given asserting that matter was reported to elders of the

village and there was an attempt of settlement, but as the

accused failed to appear before the Panchayath, the elders

later on directed the complainant to take appropriate

steps. Hence, there is proper explanation for delay and

hence, delay is not fatal to the case of the prosecution.

The evidence on record clearly establishes that the

accused has committed criminal trespass in the house of

the complainant-victim and outraged her modesty. Both

the Courts below have appreciated the oral and

documentary evidence in detail and arrived at a just

decision. Hence, the judgment of conviction passed by

both the courts below does not call for any interference.

15. Learned counsel for the revision petitioner

would submit that the Trial Court has imposed sentence of

imprisonment for a period of three months and six months

for the offences punishable under sections 448 and 354 of

IPC, respectively. He submitted that as the accused is

having number of dependants, the sentence of

imprisonment may be converted into fine by enhancing the

fine amount. The alleged offence is committed on

25.11.2010. The offence under Section 448 of IPC is

punishable with imprisonment which may extend to one

year, or with fine which may extend to Rs.1,000/- or with

both. The offence under section 354 of IPC is punishable

with imprisonment for a term which shall not be less than

one year but which may extend to five years and shall also

be liable to fine. But the mandatory imprisonment was

introduced by the Amendment Act of 2013 to Section 354

by substituting it and prior to amendment, the offence

under section 354 was punishable with imprisonment

which may extend to two years or fine or with both. The

amendment came into force w.e.f. 03.02.2013. But the

offence in the instant case was committed on 25.11.2010.

Hence, as on the date of commission of the offence,

section 354 of IPC was punishable with imprisonment

which may extend to two years or fine or with both.

16. The learned counsel for the revision petitioner

would contend that the fine may be enhanced to

Rs.1,000/- and Rs.5,000/- for the offences punishable

under sections 448 and 354 of IPC, respectively, which will

serve the purpose and the sentence of imprisonment may

be modified. The offence is said to have committed about

11 years back and lot of water has flown and both

petitioner as well as the victim girl are now married.

Hence, in my considered opinion, imposing sentence of

imprisonment appears to be little harsh and it can be

converted into fine, which can be enhanced. Hence,

looking to these facts and circumstances, for the offence

under Section 448 of IPC for house trespass, instead of

sentence of imprisonment enhanced fine of Rs.1,000/- and

for the offence under Section 354 of IPC instead of

sentence of imprisonment enhanced fine of Rs.5,000/- with

default clause will serve the purpose. Accordingly, revision

needs to be allowed with modification of sentence into fine

and accordingly, I proceed to pass the following:

ORDER

The revision petition is allowed in part.

The judgment of conviction dated 06.12.2012 passed by the learned Civil Judge (Jr.Dn) and JMFC, Kudligi in C.C.No.427/2011 which is confirmed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court-III, Hospet in Criminal Appeal No.146/2012 vide judgment dated 21.03.2013 are hereby confirmed.

However the sentence of imprisonment is modified by imposing fine of Rs.1,000/- for the offence under Section 448 of IPC in default simple imprisonment for a period of three months and fine of Rs.5,000/- for the offence punishable under section 354 of IPC, in default to pay the fine amount, the revision petitioner- accused shall undergo simple imprisonment for a period of six months. The accused shall deposit the fine amount within a period of four weeks from today before the Trial Court.

With these modifications, the revision petition stands disposed of.

Send back the TCR to the Trial Court with a copy of this order to secure the presence of the accused to collect the fine immediately.

Sd/-

JUDGE

MBS/YAN/-