Karnataka High Court

Ananda vs State Of Karnataka on 10 January, 2022

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10 T H DAY OF JANUARY, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1011 OF 2017

BETWEEN:

1.   Anand a,
     S/o Late Honneg owda,
     Aged about 18 years,
     (Correct age is 31 years)

2.   Harish @ B.M.Honnegowd a,
     S/o Mug anna Gowda,
     Aged about 25 years,

3.   Smt. Gowramma,
     W/o Late Honnegowda,
     Aged about 48 years,

4.   Smt. Meenakshi,
     D/o Late Honneg owda,
     Aged about 23 years,

     All are R/at Bellekere Villag e,
     Kattaya Hobli, Hassan Taluk-573201.
                                           ...Petitioners
(By Sri M.R.Nanjund a Gowd a, Advocate)

AND:

State of Karnataka
By Sub Inspector
Goruru Police Station,
Hassan Taluk-573201
Rep. by State Public Prosecutor,
Office attached to
                         :: 2 ::


High Court Build ing,
Beng aluru.
                                           ...Respondent
(By Sri K.S.Abhijith, HCGP)


     This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C. p raying to set
aside the judgment and order d ated 23.04.2016 in
C.C.No.4609/2014 (old C.C.No.74/2004) on the file of
Princip al Civil Judge and JMFC, Hassan and Judgment
and order d ated 21.08.2017 in Crl.A.No.98/2016 on
the file of the III Additional District and Sessions
Judge, Hassan.

     This Criminal Revision Petition coming on for
final hearing throug h video conferencing this day,
the Court mad e the following:


                        ORDER

This revision petition is filed by accused 1 to

4 challenging the judgment dated 21.8.2017

passed in Criminal Appeal 98/2016 on the file of

III Additional District and Sessions Judge, Hassan.

The prosecution case is as below : -

2. On 29.12.2003 at about 1.00 AM, PW1

Shylaja was sleeping inside her house. It is stated

that accused 1 and 2 trespassed into her house

and tried to outrage her modesty. When she :: 3 ::

shouted, they ran away from that place. Again at

about 9.30 AM, accused 3 and 4 picked up quarrel

with PW1, abused her in vulgar language and then

accused No.3 bit on the left thigh of PW1 and then

accused No.4 assaulted on the back of PW1 with a

brick piece and threatened to kill her. FIR in this

regard was registered on 29.12.2003 at 18.00

hours (6.00 PM) for the offences under sections

448, 354, 504, 324, 506 read with section 34 of

IPC.

3. The trial court after appreciating the

evidence of eleven witnesses and eight documents

held the petitioners guilty of the offence. Accused

1 and 2 were convicted for the offences under

sections 448 and 354 IPC and were sentenced to

pay fine of Rs.1,000/- with default sentence period

of three months for the offence under section 448

and imprisonment for a period of three months and

fine of Rs.1,000/- with default sentence of three :: 4 ::

months for the offence under section 354 IPC.

Accused 3 and 4 were convicted for the offences

under sections 504, 324, 506 IPC and sentenced to

pay fine of Rs.1,000/- each, for each of the

offence and directed to undergo default sentence

of three months in case of non-payment of fine.

Out of the fine amount, PW1 was awarded

compensation of Rs.8,000/-. The appellate court

did not interfere with the judgment of conviction

and sentence awarded by the trial court and

dismissed the appeal.

4. I have heard Sri M.R.Nanjunda Gowda, the

learned counsel for the petitioner and Sri

K.S.Abhijith, the learned High Court Government

Pleader.

5. Sri M.R.Nanjunda Gowda submits that the

trial court has not appreciated the evidence

properly. It has not noticed the fact that the

testimony of PW1 is not corroborated by the :: 5 ::

independent witnesses. PW2 has turned hostile

totally. PW3 is the relative of PW1 and his

evidence is tainted with interestedness. PW4 is

none other than the mother-in-law of PW1. Her

evidence is not consistent; though in the

examination-in-chief she speaks about incident

said to have taken place in the midnight, with

regard to incident that took place during day time

she has not supported. PW6 has turned hostile.

PW5 and PW7 might have supported, but their

evidence is unbelievable. It is his argument that

PW1 did not go to the police station immediately

after the incident, the very registration of FIR at

about 6.00 PM shows lot of deliberations having

taken place before registration of FIR. The wound

certificate shows presence of abrasion on the left

thigh of PW1. It does not indicate presence of

bite mark, and the doctor has not been examined.

The best witnesses to the incident said to have

taken place in the mid night are the children of :: 6 ::

PW1 but, they have not been cited as witnesses.

With lot of infirmities, the trial court ought not to

have convicted the petitioners. For the same

reason, the appellate court should not have

confirmed the judgment of the trial court. Even

the appellate court has failed to appreciate the

evidence. In this view, there is a case for

interference and therefore this revision petition

deserves to be allowed and all the petitioners

deserve to be acquitted.

6. Sri K.S.Abhijith, the learned High Court

Government Pleader, opposed the revision petition

by submitting that when two courts below have

appreciated the evidence, there is no scope for re-

appreciation of evidence in the revision petition.

According to the prosecution two incidents took

place, one in the midnight and the other during

the day time. With regard to the incident in the

midnight, the testimony of PW1 itself is believable.

:: 7 ::

There is ample evidence to show that when she

was sleeping, petitioners 1 and 2 who are accused

1 and 2 claimed illegal entry into the house of

PW1, pulled the bed sheet that she was covering

and tried to outrage her modesty. This was

witnessed by PW2 and 3. PW1 has not been

discredited in the cross-examination. Though PW2

has turned hostile, PW3 has supported the

prosecution. PW4 has also testified the evidence

of PW1. To this extent the best witnesses are

PW1, 3 and 4 who have consistently spoken.

Therefore the trial court is justified in holding

accused 1 and 2 being guilty of sections 448 and

354 of IPC. His further argument with regard to

the incident that took place at 9.30 AM is that

there is ample evidence. The testimony of PW1 is

corroborated by PW5 and 7, medical certificate

marked as Ex.P8 also indicates presence of an

injury on the left thigh of PW1. Merely for the

reason that the doctor was not examined, the :: 8 ::

incident that took place in the day time cannot be

disbelieved at all. Delay is also explained. In this

view, there is no scope for interference in this

revision petition.

7. I have considered the points of

arguments, gone through the entire evidence and

also the judgments of the courts below.

8. According to the prosecution, two

incidents took place. The first incident is at 1.00

AM, i.e., in the midnight when PW1 was sleeping.

As rightly argued by the Government Pleader,

there cannot be re-appreciation of evidence while

deciding a revision petition. However, if

perversity in appreciation of evidence is made out,

certainly the court can interfere in revision

jurisdiction. So far as the incident that took place

in the midnight is concerned, I do not think that

the trial court has come to a right conclusion on

the evidence available on record. The appellate :: 9 ::

court has also failed to notice the legal infirmities

in the evidence of PW1. PW1 has stated that when

she was sleeping, in the midnight she saw accused

1 and 2 standing beside her and trying to pull the

bed sheet that she had covered. She has stated

that she cried at that time and this cry attracted

the attention of neighbours namely Eregowda and

Ningegowda who were examined as PWs2 and 3

respectively. Seeing them, accused 1 and 2 ran

away. In the cross-examination it is elicited from

her that she was sleeping along with her two

children aged about 13 and 14 years. Her mother-

in-law was also sleeping there. It is elicited that

before going to bed, she used to bolt the main

door and back door. She has also stated in the

cross-examination that when accused 1 and 2

came inside the house, her children woke up and

they also started crying. PW2 has totally turned

hostile and PW3 has of course given evidence that

he heard the shouting of PW1 and when he went :: 10 ::

near the house, he saw accused 1 and 2 being

there and trying to pull PW1 and therefore he

questioned them. He admits in the cross-

examination that the children of PW1 and the

mother-in-law were also inside the house at that

time. PW4 is the mother-in-law of PW1 and she

too has given evidence that in the midnight, her

daughter-in-law started shouting and when she

woke up she saw accused 1 and 2 trying to pull

PW1. In the cross-examination she has given

answers in such a way that becomes very difficult

to believe what she has stated in the examination-

in-chief. Therefore, with regard to the first

incident, if evidence of four witnesses PW1 to PW4

is considered, it may be stated that the trial court

has not properly appreciated the evidence in the

sense that there is no explanation as to how

accused 1 and 2 could gain entry into the house of

PW1 in the midnight that too when the main door

and back door were bolted from inside. The :: 11 ::

evidence of the mother-in-law of PW1 is not

inspiring. Though PW3 is stated to have seen

accused 1 and 2 in the midnight in the house of

PW1, his evidence also does not disclose as to how

accused 1 and 2 could gain entry into the house of

PW1 in the midnight and moreover it is elicited

from him that he is a witness in a civil suit

pending between the husband of PW1 and father of

accused 1 and 2. Above all, the best witnesses

were children of PW1. They were not small

children, as has been stated by PW1 their ages

were 13 and 14 years. It is not forthcoming as to

why the investigating officer did not think it

necessary at least to cite the children of PW1 as

witnesses. The best evidence has been withheld.

If the evidence as a whole is considered, it

becomes very difficult to believe the testimony of

PW1 as also PW4. Therefore the trial court should

not have held accused 1 and 2 guilty of the

offence under sections 448 and 354 of IPC. The :: 12 ::

appellate court should have also applied its mind

whether really accused 1 and 2 could have been

held guilty of the offence.

9. However, as far as imputation of offence

against accused 3 and 4 is concerned, it is to be

stated that both the courts below have come to

right conclusion to hold them guilty of the offences

under sections 324, 504 and 506 of IPC. The

wound certificate clearly indicates presence of an

injury on the left thigh of PW1. Non-examination

of the doctor is not fatal. Delay as has been

highlighted by the petitioner's counsel cannot be

given importance because the evidence of PW1

shows evidence with regard to an attempt to hold

panchayat. Thus delay is explained. There are

independent witnesses for the second incident.

When the evidence in this regard is consistent, I

do not find any good ground to interfere with the

conviction passed against accused 3 and 4.

:: 13 ::

10. From the above discussions, I come to

conclusion that the revision petition deserves to be

partly allowed. Hence, I pass the following : -

ORDER

(a) Revision petition is allowed in part.

(b) The judgment of conviction passed by the

trial court and upheld by the appellate

court against petitioners 1 and 2, i.e.,

accused 1 and 2 for the offences under

sections 448 and 354 IPC is set aside.

Petitioners 1 and 2 are acquitted of the

offences under sections 448 and 354 of

IPC.