Devaraj vs State Of Karantaka
2022 Latest Caselaw 9014 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF JUNE, 2022

                                BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.451 OF 2012

BETWEEN:

Devaraj S/o. Rajegowda
Aged about 40 years
R/a Belagola Village
Srirangapatna Taluk
Mandya District
                                                    ..Petitioner
(By Sri. M. Partha, Advocate)

AND:

State of Karnataka
by Yelwala Police
                                                  .. Respondent

(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                      ****
       This Criminal Revision Petition is filed under Section 397 of
the Code of Criminal Procedure, 1973, praying to set aside the
order of the learned JMFC (II Court) at Mysore in C.C.No.11/2009
dated 29-10-2011 and the confirmation of the same by the learned
Principal District and Sessions Judge at Mysore in Crl.Appeal
No.138/2011 dated 21-02-2012 and may be pleased to allow the
revision petition in the interest of justice.
                                                   Crl.R.P.No.451/2012
                                  2


      This Criminal Revision Petition, having been heard through
physical hearing/video conferencing hearing and reserved      on
08-06-2022, coming on for pronouncement of orders, this day, the
Court made the following:

                           ORDER

The present petitioner was accused in C.C.No.11/2009,

in the learned Judicial Magistrate First Class (II Court) at

Mysore, (hereinafter for brevity referred to as "the Trial

Court"), who, by the judgment of conviction and order on

sentence dated 29-10-2011 of the Trial Court, was convicted

for the offences punishable under Sections 448, 354, 323, 324

of the Indian Penal Code, 1860 (hereinafter for brevity

referred to as "the IPC") and was sentenced accordingly, but

however was acquitted for the offence punishable under

Section 506 of the IPC.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.138/2011, in the Court of the learned

Principal District and Sessions Judge at Mysore, (hereinafter

for brevity referred to as the "the Sessions Judge's Court"),

which, after hearing both side, dismissed the appeal, Crl.R.P.No.451/2012

confirming the impugned judgment of conviction and order on

sentence passed by the Trial Court. It is challenging the

judgments passed by both the Trial Court as well the Sessions

Judge's Court, the accused/revision petitioner has preferred

the present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on 14-03-2008 at about 2:30 p.m., when

CW-1 to CW-3 were talking in their home, the accused, all of a

sudden trespassed into the house of CW-1 and asked her to

marry him and that he has brought Mangala Sutra. When

CW-1 did not accept the proposal and denied the same, the

accused caught hold of her hand and attempted to commit

rape on her and at that time, CW-2 came to the rescue of

CW-1. However, the accused could able to cause hurt to

CW-1 by scratching her right hand ring finger. At the same

time, when CW-3 rushed there, the accused pushed her down

by his hand and threatened her with dire consequences of life Crl.R.P.No.451/2012

to CW-1 and her family and thereby the accused has

committed the offences punishable under Sections 448, 354,

323, 324 and 506 of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the alleged guilt

against the accused, the prosecution got examined in all nine

(9) witnesses from PW-1 to PW-9 and got marked documents

from Exs.P-1 to P-5. However, neither any witness was

examined nor any documents were got marked on behalf of

the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

Crl.R.P.No.451/2012

6. Learned counsel for the accused/revision petitioner

and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and learned Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision

petition is:

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that, the accused has committed the alleged offences punishable under Sections 448, 354, 323, 324 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

Crl.R.P.No.451/2012

10. Learned counsel for the petitioner (accused) in his

argument submitted that, there is a delay in filing the FIR

which creates doubt in the case of the prosecution. He also

submitted that the alleged victim (complainant) who was

examined as PW-1 has not supported the case of the

prosecution. With more emphasis, he submitted that the

prosecution has failed to prove that the accused has

committed the alleged offence of trespass into the house of

CW-1. He further submitted that, the charge sheet does not

speak as to why the other accused persons were not charge

sheeted. He also stated that PW-1, PW-2 and PW-4, being

relatives, their evidence creates doubt in the mind of the

prosecution.

11. Learned High Court Government Pleader for the

respondent in his argument submitted that in the very

complaint itself, the complainant has explained the cause for

the delay in lodging the complaint. She has supported the Crl.R.P.No.451/2012

case of the prosecution and attributed the overt acts against

the accused. He also submitted that PW-2 and PW-4 being

the sister and relative of the victim/complainant (PW-1) are

the eye witnesses who have supported the case of the

prosecution, as such, the impugned judgment does not

warrant any interference at the hands of this Court.

12. Among the nine witnesses examined by the

prosecution, PW-1(CW-1) - Girija is the material witness, who,

according to the prosecution, is the victim in the incident. She

has stated that CW-2 - Shylaja and CW-3 - Usha are her elder

sister and sister-in-law respectively. The accused is her

distant relative. On the date 14-03-2008, while she along

with CW-2 and CW-3 were at home, in the afternoon, at about

2:00 p.m., the accused and three others barged into their

house. She was not knowing who those three others

accompanying the present accused were. Among them, the

accused held her hand and pestered her to marry him and that Crl.R.P.No.451/2012

he is going to tie the Mangala Sutra around her neck. When

she refused, the other people accompanying the accused held

her hand and started pulling her. However, CW-2 and CW-3

rushed to her rescue. At that point of time, the accused and

his companions pushed them and caused hurt to them, due to

which, CW-2 sustained injuries to her hand. The witness also

stated that, when they raised hue and cry, CW-4 -

Krishnegowda and other people rushed to the spot and after

seeing them, the accused and his companions ran away from

the place. Stating so, the witness has identified the accused

in the Court and stated that she has lodged a complaint with

respect to the incident as per Ex.P-1 to the Police. She has

also stated that as per the spot of incident, shown by her, the

Police have drawn the scene of offence panchanama as per

Ex.P-2 in her presence. Since she had left out few more

details about the alleged incident, the prosecution, after

getting her treated as hostile, subjected her to cross-

examination, wherein she admitted the suggestion as true that Crl.R.P.No.451/2012

in the process, when CW-2 came to her rescue, the accused

manhandled her and in the process she sustained injury to her

right hand ring finger. She also admitted a suggestion as true

that during the incident, the accused threatened her of life in

case she refused to marry him. She also admitted that,

about the incident, she revealed the incident to the villagers,

who promised her to hold a panchayat in that regard.

However, they did not conduct panchayat for quite some time,

as such, she has proceeded to lodge a complaint as per Ex.P-1

to the Police. In her cross-examination, she has given more

details about the incident and stated that the accused is the

son of her paternal aunt (CvÉÛAiÀÄ ªÀÄUÀ). However, she admitted a

suggestion as true that the accused being in their house was

attending to some work, but, denied that the

accused did not barge into their house. Barring this, the

statements made in her examination-in-chief could not be

shaken in her cross-examination.

Crl.R.P.No.451/2012

13. PW-2 (CW-2) - Shylaja has stated that while she

was in her sister's house i.e PW-1's house, along with her

sister-in-law, i.e. CW-3, on the date 14-03-2008, in the

afternoon at about 2:30 p.m., the accused barged into their

house and asked CW-1 to marry him otherwise he would

commit rape on her. Stating so, he physically held her sister

(PW-1) and started pushing and pulling her. Noticing that he

is attempting to commit rape on her, she rushed to her rescue

and at that point of time, the accused bit on her right hand

near the wrist as well on the fingers, due to which, she

sustained injuries. CW-3 also attempted to rescue them

however, she too was assaulted by the accused. Hearing the

noise of the incident, Krishnegowda and ravi rushed to the

spot and rescued them, however, while going away from the

spot, the accused put life threat. In her cross-examination

from the accused's side, she too has given some more details

about the alleged incident. She denied a suggestion that the

accused was staying in their house and that marriage talks Crl.R.P.No.451/2012

were going on among the elders in the family. Barring the

same, nothing could be elicited from her in her cross-

examination, in favour of the accused.

14. PW-3 (CW-4)- Krishnegowda has stated that he

knows CW-1 to CW-3 and the accused. On the date of the

incident, while himself along with another boy were

proceeding to their land, they heard the yelling noise from the

house of CW-1 and the neighbours were shouting 'run away,

run away', at which time, they saw the accused Devaraj and

two others running out from the house of CW-1. They even

noticed that CW-2 had sustained a bite mark on her right

hand. At the request of the people gathered there, they

shifted the injured to the Hospital. In the evening, the Police

visited the spot and drew a scene of offence panchanama as

per Ex.P-2 for which he has put his signature. This witness

was not cross-examined from the accused's side.

Crl.R.P.No.451/2012

15. PW-4 (CW-3)- Usha has stated that CW-1 and CW-2

are her relatives and she knows the accused also. She has

stated that she was an eye witness to the incident. On the

date of incident, she had been to the house of CW-1. In the

afternoon at about 2:00 p.m., while she along with CW-2 were

in the house of CW-1, the accused barged into the house of

CW-1 and started pushing and pulling CW-1 by physically

holding her hand. He was pestering her to marry him and

was telling her that otherwise, he would kill her. She further

stated that when they started yelling, the accused pushed her

and though she fell down, she did not sustain any injuries.

The witness also stated that the accused bit the right hand of

CW-2 - Shylaja and also attempted to commit rape on CW-1.

However, at that time, Krishnaiah came to the spot. Even in

her cross-examination also, the accused could not get any

statements from her in his favour.

16. PW-5 (CW-5) - Rajegowda, the Secretary of the

Grama Panchayat of Anandur, has stated about he issuing the Crl.R.P.No.451/2012

tax demand extract with respect to the house where the

incident has taken place, as per Ex.P-4.

17. PW-6 (CW-6) - Mahadeva has stated about the

Police drawing a scene of offence panchanama as per Ex.P-2.

18. PW-7 (CW-8) - Dr. Shrikant has stated about he

examining the injured in the incident on the date 14-03-2008

at about 5:05 p.m. They were accompanied by a Police

Constable No.168 of complainant Police Station. The injured

were two ladies by names Girija and Shylaja (CW-1 and CW-2

respectively). The witness stated that from them, he heard

about the history of injury as one Sri. Devaraj and four people

trespassing into their house on the same day in the afternoon

and assaulting them. The witness has given a detailed

account of the injuries he has noticed on the person of CW-1

and CW-2 and has identified the Wound Certificate said to

have been issued by him at Ex.P-5. He has also stated that

the said injuries are possible when a person is physically Crl.R.P.No.451/2012

assaulted and pushes and pulls another person. He has also

stated that the injuries noticed on the hand of CW-2 are also

possible to be caused when a person bites the fingers of

another. He has opined that the injuries found on CW-2 were

simple in nature. The denial suggestions made to him from the

accused's side, in his cross-examination were not admitted as

true by him.

19. PW-8 (CW-10) - Vinay and PW-9 (CW-9) -

Raghavendra B.G., who are the Police Officers, have spoken

about the investigation conducted by them from the stage of

receiving and registering the complainant upto the filing of the

charge sheet.

20. It is not in dispute that the accused and CW-1,

CW-2 and CW-3 (PW-1, PW-2 and PW-4 respectively) are the

relatives. The evidence of all these three witnesses would go

to show that on the ill-fated day, i.e. on the date 14-03-2008,

PW-2 (CW-2) and PW-4 (CW-3) being the elder sister and Crl.R.P.No.451/2012

sister -in-law respectively of PW-1 (complainant) had been to

the house of PW-1 (CW-1), as such, they were in the house of

CW-1 and were talking with each other. All the three of them

uniformly have stated about the incident and stated that the

accused all of a sudden barged into the house of CW-1 and by

physically holding the hands of PW-1, started asking her to

marry him and also started misbehaving with her. Though

PW-2 and PW-4 have called that it was an attempt to commit

rape upon PW-1, but the said act of the accused, however, has

not been called by PW-1 as an attempt to commit rape upon

her, but she has called it as mis-behavior of the accused with

her. All these three witnesses have uniformly stated that,

they have attempted to resist the act of the accused, in which

process, the accused assaulted all the three of them. At the

assault of the accused, PW-1 and PW-2 sustained injuries,

however, PW-4 was pushed to the ground, but she did not

sustain any injuries. The evidence of these three witnesses

that accused entered their house and manhandled them is Crl.R.P.No.451/2012

corroborated by the evidence of PW-3 (Krishnegowda), who

has stated that while he was passing in front of the house of

PW-1, he heard the yelling noise from their house and when

he stopped there, he saw the present accused along with two

others running away from the house of PW-1 (CW-1).

Though this witness has not specifically stated that he saw the

accused either assaulting or doing any mischievous act with

PW-1 to PW-3, however, he has stated that, immediately after

the accused ran away from their house, he saw that PW-2 had

sustained injuries upon her right hand. Thus, the evidence of

an independent witness corroborates the evidence of PW-1,

PW-2 and PW-4, who, in their evidence have also stated about

PW-3 Krishnegowda coming to their rescue at the alarm raised

by them.

21. Added to the above, the evidence of the Doctor i.e.

PW-7 also goes to show that the history given to him by PW-1

and PW-2 whom he examined on the same day in the evening Crl.R.P.No.451/2012

was that the accused by name Devaraj and four people

trespassing into the house of CW-1 and assaulting PW-1 and

PW-2. The said Doctor has noticed the injuries on the person

of both PW-1 and PW-2, which includes contusions and

tenderness upon PW-1 and a bite mark on the right hand

exterior aspect and abrasion on the right ring finger of PW-2.

He has opined that all the four injuries were simple in nature

and aged about two to three hours. He has also opined that

those injuries are possible to be caused when by manhandling

of a person by another and by pushing and pulling them. He

has also observed that the bite mark is possible to be caused

when a person is bitten by another person. The evidence of

PW-1, PW-2 and PW-4 that they were assaulted by the

accused, more particularly, the evidence of PW-1 and PW-2

that, the accused bit the right hand of PW-2 causing injuries

upon her and that both of them sustained injuries on the act

of the accused, is supported by the medical evidence also.

Crl.R.P.No.451/2012

22. The evidence of PW-1 and PW-6 would go to show

that the spot of the offence was the house of PW-1 within the

limits of complainant Police Station. The evidence of PW-5

shows that the house of PW-1 was within the limits of Grama

Panchayat. Thus, the prosecution has proved beyond

reasonable doubt that on the date, time and place alleged in

the charge sheet, the accused has assaulted PW-1 and PW-2

and caused simple injuries upon them and also outraged the

modesty of PW-1. The act of the accused has resulted in

simple injuries upon PW-1 and PW-2. He has also bitten PW-2

with his teeth inflicting injuries upon her right hand. Thus, the

prosecution has proved beyond all reasonable doubts that the

accused has committed the offences punishable under

Sections 354, 323 and 324 of the IPC.

23. The accused is also convicted for the offence

punishable under Section 448 of the IPC. No doubt PW-1,

PW-2 and PW-4, in their evidence have stated that, the Crl.R.P.No.451/2012

accused entered the house of PW-1 on the date of incident and

then started misbehaving with PW-1. However, according to

all those three witnesses, the accused is their very close

relative. According to PW-1, he is the son of her paternal

aunt. Furthermore, PW-1 the very victim in her cross-

examination has admitted a suggestion as true that the

accused was staying in their house attending some work.

Though PW-2 has denied the suggestion made to her in her

cross-examination that the accused was staying in their

house, but stated that he kept visiting now and then. PW-4

has not stated as to whether the accused was residing in the

house of PW-1.

24. In the above evidence of PW-1, PW-2 and PW-4, the

evidence of PW-1 about the alleged staying of the

accused in her house gets more importance because,

it is to her house, the accused is alleged to have

trespassed into. She herself in her cross-examination has

admitted that, the accused was staying in her Crl.R.P.No.451/2012

house by attending to some work. None of these three

witnesses, have, in clear terms stated that, as on the date of

the incident the accused was staying elsewhere, as such, his

entry into the house of PW-1 as on the date of incident was an

un-authorised entry to commit some offence, as such, it is a

criminal trespass. Therefore, when the alleged victim herself

has admitted that the accused was staying in her house, the

question of the accused committing any trespass does not

arise. However the Trial Court as well as the Sessions Judge's

Court have not noticed this aspect and have not appreciated

the evidence properly on this point. It is only to the limited

extent of modifying the conviction with respect to the offence

punishable under Section 448 of the IPC, the interference in

the impugned judgments is warranted.

25. Learned counsel for the petitioner also canvassed a

point that, when the complainant accuses the involvement of

three more persons along with the accused, the Investigating Crl.R.P.No.451/2012

Officer was not right in filing the charge sheet confining to the

present petitioner only. The said argument is not acceptable

for the reason that though the complainant has

mentioned about the alleged involvement of three more

accused in the commission of the crime, but the said

complaint itself makes it clear that the complainant was not

aware as to who those persons were. Apart from the same, a

perusal of the charge sheet would go to show that the

Investigating Officer has come to a conclusion based upon the

alleged further statement of the complainant and the

statements recorded by him of all the other witnesses that, it

was the present petitioner alone who had entered the house of

PW-1 and committed the alleged act as discussed above.

Further PW-2 and PW-4 who were eye witnesses have also

stated that the person who entered the house was only the

present petitioner, as such, the charge sheet came to be filed

only as against the present petitioner.

Crl.R.P.No.451/2012

26. Thus, the judgment of conviction passed by the Trial

Court holding the present petitioner guilty of the offences

punishable under Sections 354, 323 and 324 of IPC and the

order on sentence which is proportionate to the gravity of the

proven guilt, which judgment of conviction and order on

sentence was further confirmed by the learned Sessions

Judge's Court in the criminal appeal cannot be found fault

with. However, the judgment of conviction for the offence

punishable under Section 448 of the IPC and the order on

sentence for the said offence alone deserves to be set aside.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

allowed in part.

[ii] The impugned judgment of conviction and order on sentence dated 29-10-2011, passed by the learned Judicial Magistrate First Class (II Court) at Mysore, in C.C.No.11/2009, holding the present petitioner (accused) guilty for the offence Crl.R.P.No.451/2012

punishable under Section 448 of the Indian Penal Code, 1860, which was further confirmed by the judgment and order dated 21-02-2012, passed by the learned Principal District and Sessions Judge at Mysore, in Criminal Appeal No.138/2011, are hereby set aside;

[iii] The revision petitioner (accused) - Devaraj S/o. Rajegowda, Aged about 40 years, R/a Belagola Village, Srirangapatna Taluk, Mandya District, stands acquitted of the offence punishable under Section 448 of the Indian Penal Code, 1860.

      [iv]         However, the impugned judgment of
conviction         and     order     on     sentence    dated
29-10-2011,          passed    by    the    learned    Judicial

Magistrate First Class (II Court) at Mysore, in C.C.No.11/2009, holding the present petitioner (accused) guilty for the offences punishable under Sections 354, 323 and 324 of the Indian Penal Code, 1860, which judgment of conviction and order on sentence was confirmed by the judgment and order dated 21-02-2012, passed by the learned Principal District and Sessions Judge at Crl.R.P.No.451/2012

Mysore, in Criminal Appeal No.138/2011, stands confirmed and does not warrant interference.

The petitioner/accused to surrender before the Trial Court within forty-five (45) days from today and to serve the sentence.

Registry to transmit a copy of this order to both the Trial

Court and also the learned Sessions Judge's Court along with

their respective records immediately for doing needful in the

matter.

Sd/-

JUDGE

BMV*