Karnataka High Court

Chikkalingegowda vs State Of Karnataka on 6 December, 2023

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                                                          NC: 2023:KHC:44110
                                                      CRL.RP No. 218 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF DECEMBER, 2023

                                           BEFORE
                          THE HON'BLE MR JUSTICE VENKATESH NAIK T
                       CRIMINAL REVISION PETITION NO.218 OF 2016
                   BETWEEN:

                   CHIKKALINGEGOWDA,
                   S/O. LINGANNA,
                   AGED ABOUT 44 YEARS,
                   R/AT SOMADEVARA PALYA,
                   HUTHRIDURGA HOBLI,
                   KUNIGAL TOWN, TUMKUR DISTRICT,
                   PIN CODE: 572 130.
                                                               ...PETITIONER
                   (BY SRI H ASHOK KUMAR, ADVOCATE)
                   AND:

                   STATE OF KARNATAKA,
                   REPRESENTED BY KUNIGAL POLICE,
                   TUMKUR DISTRICT, PINCODE - 572 130.
Digitally signed                                              ...RESPONDENT
by VINUTHA M
Location: HIGH     (BY SRI VINAY MAHADEVAIAH, HCGP)
COURT OF
KARNATAKA

                        THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                   TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
                   DATED 17.01.2014 PASSED BY THE PRL. CIVIL JUDGE, AND
                   JMFC, KUNIGAL IN C.C.NO.452/2011, AND ALSO SET ASIDE
                   THE JUDGMENT DATED 22.12.2015 PASSED BY THE VI ADDL.
                   DIST. AND S.J., TUMAKUR, IN CRL.A.NO.22/2014.

                        THIS PETITION COMING ON FOR HEARING THIS DAY,
                   THE COURT MADE THE FOLLOWING:
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                                           NC: 2023:KHC:44110
                                       CRL.RP No. 218 of 2016




                            ORDER

Heard the learned counsel for the petitioner

Sri H. Ashok Kumar and Sri Vinay Mahadevaiah, learned

HCGP for the respondent-State.

2. The petitioner has filed this petition under Section

397 of Criminal Procedure Code (for short 'Cr.P.C') praying

to set-aside the judgment and order of conviction dated

17.01.2014 passed by the learned Principal Civil Judge and

JMFC, Kunigal, Tumkur District in C.C. No.452/2011 and

the judgment dated 22.12.2015 passed by learned the VI

Additional District and Sessions Judge, Tumkur in Criminal

Appeal No.22/2014 and also prays to allow the petition.

3. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court. The

petitioner is accused and respondent is complainant/State.

4. Brief facts of the prosecution is as under:-

On 05.04.2011 at 7.00 a.m. in front of the house of

PW-2 Siddalingaiah at Somadevarapalya village, he stored

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the firewood and on top of it PW-4 put clothes for drying.

At that point of time, accused came there and removed

the clothes and thrown in a pit. Hence, PW1, 2 and 4

enquired with the accused, in turn accused abused the

PWs-1, 2 and 4 in a filthy language, intentionally insulted

them to provoke the breach of their peace, assaulted PW-1

on her hand, on her back, left leg and caused pain and

assaulted PW-2 on his back with MO-1 club and caused

injuries and also assaulted Rangamma with his hands on

her left shoulder, abdomen and left ears and he made

criminal intimidation to eliminate them if they repeat the

same things. Therefore, PW-3 lodged a complaint against

the accused which led to registration of FIR and

investigation.

5. After receipt of the charge sheet, the Trial Court

took cognizance of the offences, secured the presence of

the accused and framed charges for the aforesaid

offences. The prosecution examined in all nine witnesses

as PWs-1 to 9 and documents got marked as Ex.P1 to P9

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and material object as MO-1. The statement of accused

was recorded under Section 313 of Criminal Procedure

Code (for short 'Crl.P.C') by the learned Magistrate and

after hearing both the sides, the Trial Court convicted the

accused for the offences punishable under Section 323,

324, 504 and 506 of Indian Penal Code (for short 'IPC').

Aggrieved by the judgment of conviction and sentence

passed by the Trial Court, the accused preferred the

appeal in Crl. A. No.22/2014 before the First Appellate

Court and in turn, the First Appellate Court dismissed the

appeal and confirmed the judgment passed by the Trial

Court. Now aggrieved by the concurrent findings given by

the Trial Court and the First Appellate Court, the petitioner

has filed this petition.

6. Learned counsel for the petitioner contended that

PWs-1, 2 and 4 though injured witness, but they are

interested witness. PW-2 or his family members have not

filed any complaint before the police, instead PW-3

Prakash the son of brother of PW-2 lodged a complaint.

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Therefore, in the absence of the complaint by the victims

or their family members, the complaint lodged by PW-3 is

not maintainable, however, the trial Court convicted the

petitioner, which is not permissible under law. Further,

PW-3 is not an eye witness to the incident and is a

hearsay witness. It is contended that the prosecution

evidence is full of omissions, contradictions and

improvements, but the Trial Court failed to consider these

aspects and has given undue weightage to the testimonies

of interested witness i.e. PW-1 to 4 in the absence of an

independent eye witness, especially the oral evidence of

PWs-6 and 7. It is contended that as per the evidence of

PW-9 Dr. Mamata the injuries mentioned in Exs.P6 to 8

wound certificates, the injuries sustained were simple in

nature and victims were treated as out-patient and they

were conscious. Therefore, the order of conviction passed

by the Trial Court as well as First Appellate Court is purely

based on assumptions and presumptions. Hence, the

counsel prays to allow the petition.

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7. Learned High Court Government Pleader for

respondent-State vehemently argued and contended that

the Trial Court as well as First Appellate Court have given

concurrent findings based on the oral testimony of PWs-1

to 4 and evidence of PW-9 Dr. Mamata. PWs-1, 2 and 4

have categorically stated that accused voluntarily caused

hurt and caused bodily injury and also assaulted with MO-

1 club and caused simple injury to PW-2. He intentionally

insulted PWs-1, 2 and 4 and also made criminal

intimidation to eliminate them if they repeat the same

things and therefore, based on the oral and medical

evidence, the Trial Court convicted the petitioner. Hence,

no interference is called for, thus pray to dismiss the

petition.

8. Perused the material available on record. As per the

evidence of PW-1, on 05.04.2011 at 7 a.m., her mother

put their clothes on the firewood in front of their house.

Therefore, accused took quarrel with them and insisted

them to remove the said clothes, as if said place belong to

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him only. Therefore, PW-4 when enquired about the same

in this regard, the accused abused her in a filthy language,

intentionally insulted her to provoke her breach of peace.

At that time, PW-2 came to the place and enquired about

the dispute. Therefore accused also assaulted him with

MO-1 club on his back. Hence, PW-4 tried to pacify the

quarrel, but, the accused assaulted on her left shoulder,

below abdomen and left ear. Thereby, caused simple

injury to PWs-1, 2 and 4. As per the evidence of PW2

Siddalingaiah, father of PW-1 and husband of PW-4 on the

day of incident at 7.00 a.m. she put her clothes on the

firewood in front of her house. Therefore, accused took

quarrel with PWs-1 and 4 for removal of said clothes and

thereafter, he threw them to the drainage, thus PW-2

came to the spot and enquired the accused, the accused

assaulted him with MO-1 club. When PW-4 tried to pacify

the quarrel, he assaulted him with his hand and leg and

caused injury on her left shoulder, below abdomen and left

ear.

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9. PW-4 Gangamma is another injured witness. In her

evidence she has reiterated the averments made in the

evidence of PWs-1 and 2. PW-3 Prakash the complainant

and son of brother of PW-2, in his evidence he has stated

that he reached the spot after couple of minutes, enquired

PWs-1, 2 and 4 about the incident and lodged a complaint

as per Ex.P1. PW-5 Chikkanna is the witness to spot

Mahazar Ex.P2, has stated that police conducted a spot

mahazar in his presence at the spot.

10. PW-6 Renuka Prasad and PW-7 Muniswamy are

independent eye witnesses but they have turned hostile

for the prosecution. PW-8 Channaiah S. Heremath Police

Sub-Inspector who registered the case conducted spot

mahazar, recorded the statement of witnesses and filed

charge sheet against the accused. PW-9 Dr. Mamata who

treated PWs-1, 2 and 4 and issued wound certificates as

per Exs.P6 to 8. As per the evidence of PW-9, PWs-1, 2

and 4 sustained simple injuries.

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11. On perusal of the material available on record,

PWs-1, 2 and 4 are the injured witnesses, they have

clearly stated the manner in which the incident occurred

and more particularly, the accused assaulted them with

hand, legs and MO-1 club. The evidence of PWs1, 2 and 4

is corroborated with the oral testimony of PW-9 doctor and

PW-9 has described the injuries sustained by PWs-1, 2 and

4 which can be seen in Exs.P6 to 8.

12. The counsel for petitioner contended that PW-6

and 7 are independent eye witnesses and they have

turned hostile to the case of prosecution. In the instant

case, PWs-1, 2 and 4 are injured eye witnesses and they

sustained injuries. Merely because independent witnesses

turned hostile for the prosecution, the contention raised by

the accused cannot be accepted since more weightage to

be given to the testimony of the injured witnesses.

13. The evidence of injured witness has greater

evidentiary value and unless compelling reasons exist,

their statements are not to be discarded lightly. The

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evidence of injured witness cannot be doubted on account

of some embellishment in natural conduct or minor

contradictions. Testimony of an injured witness is

accorded a special status in law. Such a witness comes

with a built-in-guarantee of their presence at the scene of

the crime and is unlikely to spare their actual assailant in

order to falsely implicate someone. Convincing evidence is

required to discredit an injured witness. The counsel

contended that PW.1 to 4 are relatives and hence, their

testimony is an interested in nature. Relationship is not

sufficient to discredit a witness unless motive to spare the

real culprit and implicate an innocent person falsely is

shown. In fact close relatives of injured may naturally

rush to the scene on hearing alarm of victims, and

therefore, relationship will not detract from their evidence.

14. The counsel for the petitioner vehemently

contended that PWs-1, 2 and 4 appears to be victims in

this case, but they have not lodged a complaint. PW-3 the

son of brother of PW-2 lodged a complaint. Hence, same

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is not maintainable. First Information Statement is not

ordinarily substantive evidence. It can corroborate or

contradict the evidence of the informant. A report, which

discloses commission of a cognizable offence, must be

treated as first information under Section 154 of Cr.P.C. It

does not matter if the person giving information is an eye

witness or not. Credibility of eye witness cannot be

doubted merely because their names are not mentioned in

the complaint. There cannot be suspicion, if first

informant is not an eye witness, but a close relative.

Therefore, this contention cannot be sustained as PW-3 is

also one of the relatives of PWs-1, 2 and 4 and as per the

evidence of PWs-1, 2 and 4, PW-3 took them to the

hospital for treatment. Hence, one cannot find fault with

the act of PW-3.

15. In the case of STATE THROUGH DEPUTY

SUPERINTENDENT OF POLICE v. R. SOUNDIRARASU,

in Criminal Appeal 1452-1453 of 2022 dated

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5th September 2022, the Hon'ble Apex Court held as

under:

'The revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure'.

16. On meticulous examination of the evidence

available on record, there is no manifest error apparent on

the face of the record, either in the judgment of the trial

Court or appellate Court. The judgment passed by the

trial Court as well as First Appellate Court is in accordance

with law and no interference is called for. Therefore, I

proceed to pass the following:

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ORDER

i) The revision petition is dismissed.

(ii) The impugned judgment and order of conviction

dated 17.01.2014 passed by the learned Principal

Civil Judge and JMFC, Kunigal, Tumkur District in

C.C. No.452/2011 and confirmed by the judgment

dated 22.12.2015 passed by learned the VI

Additional District and Sessions Judge, Tumkur in

Criminal Appeal No.22/2014, are hereby

confirmed.