Karnataka High Court

Godwyn D'Souza @ Godwyn vs The State Of Karnataka on 24 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.800/2013

BETWEEN:

GODWYN D'SOUZA @ GODWYN
S/O. VALCRIAN D'SOUZA
CHRISTIAN
AGED ABOUT 34 YEARS
TARIPPADIMANE
MISSION COMPOUND
AMBLAMOGARU
MANGALURU TALUK-575 010.                  ... PETITIONER

         (BY SRI K.SHASHIKANTH PRASAD, ADVOCATE)

AND:

THE STATE OF KARNATAKA
REPRESENTED BY STATE PUBLIC PROSECUTOR
BENGALURU-560 001.                    ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 19.08.2013 IN CRIMINAL APPEAL
NO.392/2008, PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU AND DISMISSING THE
APPEAL AGAINST THE JUDGMENT DATED 01.09.2008 IN
C.C.NO.340/2005 BY THE CIVIL JUDGE (JR.DN.) AND JMFC,
MOODBIDRI AND TO DIRECT THAT THE PETITIONER BE
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ACQUITTED IN ALLOWING THIS REVISION PETITION UPON
PERUSING THE RECORDS AND ON HEARING THE ARGUMENTS
OF THE PETITIONER'S COUNSEL.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                                ORDER

This petition is filed under Section 397 read with Section

401 of Cr.P.C., praying to set aside the judgment dated

19.08.2013 in Crl.A.No.392/2008 passed by the IV Additional

District and Sessions Court, D.K., Mangaluru, by dismissing the

appeal against the judgment dated 01.09.2008 in

C.C.No.340/2005 by the Civil Judge (Jr.Dn.) and JMFC.,

Moodabidri and acquit the petitioner.

2. Heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

3. The factual matrix of the case of the prosecution is

that, P.W.1, who was working as Manager in Mulki-Karnad Petrol

Bunk, after completing the business, he used to take the money.

Hence, these accused persons followed him and thrown the

liquid substance over him and forced him to give the business

money, which he possessed. When he shouted by seeing the

accused persons, who are coming towards the spot, the accused

persons ran away. Based on the complaint, the police have

registered a case, investigated the mater and filed the charge-

sheet for the offences punishable under Sections 324 and 394 of

IPC.

4. The prosecution in order to prove the case relied

upon the evidence of PWs.1 to 8 and the documentary evidence

- Exs.P1 to 8(a) and also the material objects - MOs.1 to 4. The

accused/petitioner has not led any defense evidence before the

Trial Court.

5. The Trial Court after considering both oral and

documentary evidence placed on record, convicted and

sentenced both the accused persons for the offences punishable

under Sections 324 and 394 of IPC. The sentence awarded in

respect of an offence punishable under Section 324 of IPC was

six months simple imprisonment and in respect of an offence

punishable under Section 394 of IPC was two years with a fine of

Rs.2,000/- each, in default, they shall undergo simple

imprisonment for one month. Being aggrieved by the judgment

of conviction and the order on sentence, an appeal was filed

before the Appellate Court in Crl.A.No.392/2008. The Appellate

Court on re-appreciation of both oral and documentary evidence

placed on record, dismissed the appeal. Hence, the present

revision petition is filed before this Court.

6. The learned counsel appearing for the revision

petitioner would submit that the prosecution mainly relies upon

the evidence of PWs.1 and 2 and there are contradictions in the

evidence of PWs.1 and 2. The Trial Court as well as the Appellate

Court not accepted the evidence of PWs.1 and 2. P.W.1 says in

his evidence that one among the accused was known person and

the same person, who is contrary to the recital of Ex.P1,

wherein, he has stated that they are strangers. These

contradictions also not considered by the Trial Court. Hence, it

requires an interference of this Court.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent - State would submit that

the evidence of PWs.1 and 2 are consistent and nothing is

elicited contrary to the evidence of each witnesses. P.W.1 is the

person, who is the victim suffered the injuries in the incident.

When he shouted, P.W.2 also witnessed the incident and rushed

to the spot and his evidence is also not contrary as contended by

the learned counsel for the petitioner. The prosecution also relied

upon the other witnesses evidence, who are the circumstantial

witnesses and they rushed to the spot based on the information

of P.W.2. An attempt is made to snatch the money, which was

in possession of the victim.

8. Having heard the learned counsel appearing for the

petitioner and the learned High Court Government Pleader

appearing for the State and on perusal of the material available

on record, the points that would arise for consideration of this

Court are:

(i) Whether both the Trial Court as well as the Appellate Court have committed an error in accepting the evidence of prosecution witnesses and committed an error in convicting and sentencing the accused persons?

(ii) Whether this Court can exercise the revisional jurisdiction?

(iii) What order?

Point Nos.(i) & (ii):

9. Having heard the respective counsel and also on

perusal of the material available on record, it is the specific case

of P.W.1 that when he was proceeding on 07.06.1999 at about

9:30 p.m, after completing his work he was carrying an amount

of Rs.65,000/- in his pant pocket from the Petrol Bunk and

proceeding towards Mulky bus stand to go to Mangaluru in a

bus. By that time, these accused persons followed him and

poured the liquid, as a result, P.W.1 has sustained the injury, by

that time, immediately he shouted at the spot, P.W.2 also came

to spot and he also identified the accused persons. The accused

persons on seeing P.W.2, ran away from the spot. The

prosecution mainly relied upon the evidence of PWs.1 and 2.

P.W.1 is the injured witness and P.W.2 is the eyewitness to the

incident.

10. It is also important to note that Ex.P8, Wound

Certificate is also marked. When they poured the liquid, P.W.1

had sustained the injuries. Apart from that, the evidence of

PWs.1 and 2 is specific that this petitioner and other petitioners

are ran away from the spot, when P.W.1 shouted at the spot.

The Trial Court also taken note of the evidence available on

record since P.W.1 is the injured and P.W.2 is the eyewitness.

P.W.2 categorically identified accused Nos.1 and 2 and deposed

before the Court that he was having acquaintance with one of

the accused, who used to come to Petrol Bunk. The learned

counsel appearing for the petitioner was brought to the notice of

this Court that in the complaint, it is mentioned as strangers and

there is a material contradictions. Whether such contradictions

go to the very route of the case has to be considered by the

Court. It has to be noted that the material objects are marked

as MOs.1 to 4, as a result of pouring the liquid on the green

coloured shirt, T-shirt, the black and brown coloured shirt, which

were seized and sealed plastic Dabba, in which they brought the

liquid is also seized and marked while drawing the Mahazar.

11. Having considered the evidence of P.W.2 - eye

witness and also P.W.1 - the injured and in the cross-

examination of P.W.1, he categorically says that one of the

accused was known to him. But though he has given such

answer in the cross-examination, nothing is suggested that he

was not having any acquaintance with the accused. It is also his

clear evidence that when he shouted, P.W.2 rushed to the spot.

On seeing him they ran away from the spot and immediately he

gave the complaint and went to hospital. In the cross-

examination, nothing is elicited to dis-believe the evidence of

P.W.1 and also he categorically says that when he came back

from the hospital by that time, already the police have

apprehended and they were in the Police Station.

12. P.W.2 also reiterated the evidence of P.W.1 and he

was also subjected to cross-examination. In the cross-

examination, he says that he need not go in front of the Petrol

Bunk while going to his house. Except this nothing is elicited and

also he admits that he has not pointed out the place of incident.

Except these answers with regard to witnessing the incident and

identifying the accused persons, nothing is elicited. When such

being the factual aspects when both the Trial Court as well as

the Appellate Court considered the evidence of PWs.1 and 2 and

their evidence is consistent and the very contention of the

learned counsel for the petitioner with regard to the discrepancy

that he was having acquaintance with one of the accused will not

goes to the very route of the case. The medial evidence also

supports the case of the prosecution that P.W.1 has sustained

the injury and Ex.P8 - wound certificate is also marked. Here is

a case of an attempt is made to rob the money from P.W.1 but

the petitioners have not succeeded in robbing the money from

P.W.1. When such material is available and the document is

very clear that P.W.1 has sustained the injuries. It is evident

from the document Ex.P8-Wound Certificate that only an attempt

is made and no material to show that these petitioners are the

habitual offenders of committing an offence under Section 394 of

IPC. This aspect has not been considered by the Appellate

Court. The Appellate Court ought to have taken note of the fact

that made an attempt to rob the money, but they have not

successful in robbing the money. Under the circumstances, I do

not find any error in passing the order of conviction. The

sentence part requires interference. The Court has to take note

of the sentence imposed was two years has to be reduced to one

year since only an attempt was made. Hence, I answer point

No.(i) as 'negative' and point No.(ii) as 'partly affirmative'.

Point No.(iii):

13. In view of the discussions made above, I pass the

following:

ORDER

(i) The revision petition is allowed in part.

(ii) The conviction for the offences punishable under Sections 324 and 394 of IPC is confirmed and the sentence is reduced from two years to one year. The fine amount is unaltered.