Karnataka High Court

Huseni @ Husensab vs State Of Karnataka on 10 January, 2023

Bench: Rajendra Badamikar

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CRL.RP No. 100239 of 2016

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 10TH DAY OF JANUARY, 2023

BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100239 OF 2016
BETWEEN:

1. HUSENI @ HUSENSAB
S/O HURIYAPPA @ GURAPPA SIKKALAGAR
AGED ABOUT 37 YEARS, OCC: COOLIE,
RESIDENT OF JAMAKHANDI,
DIST: BAGALKOTE.

2. MOULA S/O HURIYAPPA @ GURAPPA SIKKALAGAR,
AGED ABOUT 34 YEARS, OCC: COOLIE,
RESIDENT OF JAMAKHANDI,
DIST: BAGALKOTE.
...PETITIONERS
(BY SRI ANIL KALE, ADVOCATE)

AND:

STATE OF KARNATAKA,
THROUGH PSI
JAMAKHANDI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
Digitally signed by SUJATA
HIGH COURT BUILDING,
DHARWAD.
SUBHASH PAMMAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH,

...RESPONDENT
DHARWAD.

(BY SRI RAMESH CHIGARI, HCGP)

THIS CRIMINAL REVISION PETITION IS FILED IS U/SEC. 397
R/W 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND ALLOW
THE REVISION PETITION, AND SET ASIDE THE CONVICTION AND
SENTENCE DATED 16/11/2012 PASSED BY THE PRL CIVIL JUDGE
AND JMFC JAMAKHANDI IN C.C.NO. 17/2011 AND ALSO SET ASIDE
THE ORDER DATED 22/06/2016 PASSED BY THE I ADDL. DISTRICT
AND SESSIONS JUDGE BAGALKOT TO SIT AT JAMAKHANDI IN
CRIMINAL APPEAL NO. 136/2012 FOR THE O/P/U/SEC. 323, 354, 504
R/W 34 IPC.
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CRL.RP No. 100239 of 2016

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

ORDER

This revision petition is filed by the accused-revision

petitioners under Section 397 R/w 401 of the Indian Penal

Code, 1860 (for short, hereafter referred to as 'IPC')

challenging the judgment of conviction passed by the learned

Principal Civil Judge and JMFC., Jamakhandi in C.C.No.17/2011

dated 16.11.2012 whereby the learned Magistrate has

convicted the accused-revision petitioners herein for the

offences punishable under Sections 323, 504 and 354 R/w

Section 34 of IPC which was confirmed by the learned I

Additional District and Sessions Judge Bagalkot sitting at

Jamakhandi in Crl.A.No.136/2012 dated 22.06.2016.

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,

on 03.12.2010 in the afternoon the complainant and her sister-

in-law had been to the canal on Mudhol Road to wash the

cloths. At about 4.30 p.m. the petitioners-accused Nos.1 and 2

CRL.RP No. 100239 of 2016

came there and started enquiring about the name of the

complainant and her address etc., When, the complainant

objected for all these details and questioned the reasons for

getting such an information. Then the accused abused her in

filthy language, pulled her sari and hair and tried to outrage

her modesty. In the said process, accused No.2 also kicked her

near the stomach and also assaulted her by hands on the cheek

and chest. When Kasturi tired to intervene, she was also

assaulted. The victims then returned to the home and after

informing in-laws and after arrival of the husband of

complainant, who had been to Guddapur village, lodged a

complaint on the next day. On the basis of the complaint, the

investigating officer investigated the crime and submitted the

charge sheet. After submission of the charge sheet, as there

are sufficient grounds to proceed against the accused, the

cognizance was taken by the learned Magistrate. The accused

were initially arrested and were later on enlarged on bail. The

prosecution papers were also furnished to the accused. After

hearing the arguments, the charge was framed against them

for the offences punishable under Sections 323, 354, 504 R/w

Section 34 of IPC and accused pleaded not guilty.

CRL.RP No. 100239 of 2016

4. To prove the guilt of the accused, prosecution has

examined in all 8 witnesses as PW1 to 8 and also placed

reliance on 6 documents marked as Ex.P1 to 6. After the

conclusion of the evidence of the prosecution, the statement of

the accused under Section 313 Cr.P.C. was recorded to enable

the accused to explain the incriminating evidence appearing

against the accused in the case of the prosecution and the case

of accused is of total denial. However, one witness was

examined as DW.1 on behalf of accused as a defence witness.

5. After hearing the arguments and perusing the

records, the learned Magistrate has convicted the accused-

revision petitioners herein for the offences punishable under

Sections 323, 504 354 R/w Section 34 of IPC and sentenced

them to imprisonment as well as fine. Being aggrieved by the

judgment of conviction and order of sentence, the revision

petitioners have approached the learned I Additional District

and Sessions Judge sitting at Jamakhandi, Bagalkot JMFC., in

Crl.A.No.136/2012. The learned Sessions Judge has rejected

the appeal by confirming the judgment of conviction and order

of sentence.

CRL.RP No. 100239 of 2016

6. Being aggrieved by these concurrent findings, this

revision is filed.

7. Heard the arguments advanced by the learned

counsel for the revision petitioners and learned High Court

Government Pleader for respondent-State. Perused the

records.

8. The learned counsel for the revision petitioners

would contend that, both the Courts below have not property

appreciated the oral and documentary evidence and the

defence of the accused was not at all considered. It is also

conceded that, no reasons were given for not considering the

provisions of the Probation of Offenders Act, 1958 (for short,

hereafter referred to as 'P.O. Act'). He would also fairly

concede that his scope is very limited and in such event, the

sentence of imprisonment may be set aside by enhancing the

fine only.

9. Per contra, the learned High Court Government

Pleader would support the judgment of conviction and order of

sentence passed by the Courts bellow.

10. Having heard the arguments and perusing the

records, it is evident that on the basis of the complaint, the

CRL.RP No. 100239 of 2016

crime was registered for the offence punishable under Sections

323, 504, 354 R/w Section 34 of IPC. The allegation does

disclose that on 03.12.2010, when the complainant and her

sister-in-law had gone to canal on Mudhol Road at about 4.30

p.m., the accused came there and quarreled with them and

outraged her modesty by abusing them in filthy language and

assaulted them by hands. In this regard, the complaint came

to be lodged on the next day with proper reasons.

11. PW3 is the victim of the offence, who has

specifically asserted the overt act alleged against the accused.

Further PW4 Kasturi is an eye-witness and sister-in-law of the

complaint. Both these witnesses have supported the case of

the prosecution and though they were cross examined at length

nothing was elicited so as to impeach their evidence. They

stood the test of the cross examination and there is no reason

for disbelieving their contentions. The other witnesses are

formal witnesses, while PW5 is the doctor and PW7 is the

investigating officer.

12. Interestingly, the accused has taken a specific

defence by examining one witness as DW1. Interestingly,

though, the accused have led a defence, the said defence was

CRL.RP No. 100239 of 2016

not put forward while recording the statement under Section

313 Cr.P.C. Even during the cross examination, no specific

defence in this regard was put forward. No such suggestions

regarding the defence was made to the complainant who is star

witness and some suggestions were made to PW4, but the

defence is not consistent. Looking to these facts and

circumstances, both the Courts below after appreciating the

oral and documentary evidence have given a concurrent

findings of fact that the prosecution has proved the guilt of the

accused beyond all reasonable doubts for the offence

punishable under Section 323, 504, 354 R/w Section 34 of IPC.

These findings regarding conviction does not call for any

interference, as it is based on reasoned order.

13. For the offence punishable under Section 504 R/w

Section 34 of IPC, the sentence of fine of Rs.250/- was imposed

with a default clause and considering the meager amount of

fine, it also does not call for any interference.

14. For the offence punishable under Section 323 the

imprisonment for a period of 2 months with fine of Rs.250

came to be imposed, while for the offence under Section 354 of

CRL.RP No. 100239 of 2016

IPC, imprisonment for 3 months with fine of Rs.500/- came to

be imposed.

15. The records disclose that, there was no other

dispute between the parties and for some trival reasons, the

dispute has taken place without there being any motive.

Further, the Trial Court has also not called for the report of the

Probationary Officer, so as to extend the benefit of provisions of

Sections 3 and 4 of the P.O. Act. The Trial Court has not even

given any reason in this regard also. This approach of the Trial

Court in this regard is erroneous, but since there are two

concurrent findings, it is not proper to remit back the matter to

the Trial Court to consider this aspect, when the conviction is

based on sound reasons. But in my considered opinion,

considering the relationship between the parties, the sentence

of imprisonment appears to be little harsh and it can be

converted to fine only. The learned counsel for the revision

petitioner would submit that, the fine amount may be enhanced

by setting aside the sentence of imprisonment. Considering the

grounds urged, the said submission appears to be reasonable

one. Since, there is an offence under Section 354 of Cr.P.C.

regarding outrage of modesty and considering the background

CRL.RP No. 100239 of 2016

of the accused, for the offence under Section 354 of IPC, the

fine of Rs.5,000/- can be enhanced which would serve the

purpose and for the offence punishable under Section 323 of

IPC, fine can be enhanced to the extent of Rs.1,000/- by

remitting the sentence of imprisonment. To this extent, the

appeal needs to be allowed and accordingly, I proceed to pass

the following:

ORDER

i) The revision petition is allowed in part.


     ii)    The judgment of conviction passed by the
            learned Principal Civil           Judge   and     JMFC.,
            Jamakhandi       in         C.C.No.17/2011         dated
            16.11.2012,    which        was    confirmed     by   the

learned I Additional District and Sessions Judge Bagalkot sitting at Jamakhandi in Crl.A.No.136/2012 dated 22.06.2016, stands confirmed.

iii) However, the sentence of fine for the offence under Section 504 R/w Section 34 of IPC is confirmed and sentence so far as it relates to the offences punishable under Sections 354 and 323 of IPC stands modified.

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CRL.RP No. 100239 of 2016

iv) The revision petitioners are sentenced to pay a fine of Rs.5,000/- (rupees five thousand only) each for the offence punishable under Section 354 of IPC, in default to pay the fine amount, to undergo simple imprisonment for a period of six months. Further for the offence under Section 323 of IPC, accused persons are sentenced to pay a fine of Rs.1,000/- (rupees one thousand only) each, in default to undergo simple imprisonment for a period of two months. The rest of the judgment stands unaltered.

v) Send back the Trial Court records along with a copy of this judgment for securing the presence of the revision petitioners for recovery of the fine amount, if not deposited.