Tammanna S/O Ramappa Yalavalli vs The State Of Karnataka
2023 Latest Caselaw 3300 Kant

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                                                      CRL.RP No. 100239 of 2015




                               IN THE HIGH COURT OF KARNATAKA

                                       DHARWAD BENCH

                             DATED THIS THE 15TH DAY OF JUNE, 2023

                                            BEFORE
                             THE HON'BLE MR JUSTICE ANIL B KATTI
                      CRIMINAL REVISION PETITION NO. 100239 OF 2015
                      BETWEEN:

                      TAMMANNA S/O. RAMAPPA YALAVALLI
                      AGE:30 YEARS OCC:COOLIE
                      R/O:KOKKANUR, TQ:DIST:DAVANAGERE

                                                                 ...PETITIONER

                      (BY SRI. V. S. GADDAD, ADVOCATE)

                      AND:

                      THE STATE OF KARNATAKA
                      BY HIREKERUR POLICE
                      R/Y THE ADDL SSP, HIGH COURT BENCH,
                      DHARWAD
        Digitally
        signed by J
J
        MAMATHA                                                ...RESPONDENT
MAMATHA Date:
        2023.06.21
        12:25:59
        +0530         (BY SRI. PRAVEEN UPPAR, HCGP)

                          THIS CRIMINAL REVISION PETITION IS FILED
                      U/SEC.397(I) SEC.401 OF CR.P.C., SEEKING TO SET
                      ASIDE THE JUDGMENT OF CONFIRMING THE JUDGMENT
                      PASSED BY THE TRIAL COURT IN CRI. APPEAL NO.4/2010
                      DATED: 31-10-2013 PASSED BY IIND ADDL. DIST. &
                      SESSIONS JUDGE, HAVERI SITTING AT RANEBENNUR AND
                      TO SET ASIDE THE JUDGMENT AND ORDER OF
                      CONVICTION PASSED BY THE CIVIL JUDGE (JR.DN.) AND
                      JMFC COURT, HIREKERUR IN CC NO.209/2007 DTD:
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                                         CRL.RP No. 100239 of 2015




06-01-2010 BY ACQUITTING THE PETITIONERS FOR THE
CHARGES LEVELED AGAINST THEM BY SETTING THEM AT
LIBERTY OFFICE U/SEC.332, 353 & 504 R/W. SEC.34 IPC.

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

                               ORDER

Revision petitioner/accused No.1 feeling aggrieved by

judgment of First Appellate Court on the file of II Addl. District

and Sessions Judge, Haveri, sitting at Ranebennur in

Crl.A.No.4/2010, dated 31.10.2013, preferred this revision

petition.

2. Parties to the revision petition are referred with

their ranks as assigned before the trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that on

17.4.2007 at 1.00 p.m. complainant was driving bus bearing

No.KA-25/F-1957 and stopped the said vehicle by Thippaikoppa

cross for alighting passengers. At that time, accused came

driving his tractor and stopped across the bus. The complainant

asked the accused to take side of tractor, so that he can pass.

CRL.RP No. 100239 of 2015

However, accused No.1 assaulted on his neck and chest and

accused No.2 fisted on his shoulder, thereby both the accused

have voluntarily deterred the complainant being public servant

from lawful discharged of his duties. On these allegations made

in the complaint, investigation was carried out and investigating

officer filed charge sheet.

4. In response to summons, accused Nos.1 and 2 have

appeared through counsel. The trial Court on being prima facie

satisfied framed charges for the offences alleged against them.

Accused Nos. 1 and 2 pleaded not guilty and claimed to be

tried. The prosecution to prove the allegations made against

accused relied on the evidence of PWs-1 to 8 and documents at

Exs.P.1 to 5, so also got identified M.O.1 and 2.

5. On closure of the prosecution evidence, statement

of accused under Section 313 Cr.P.C. came to be recorded.

Accused denied all the incriminating material evidence

appearing against them and claimed that false case is filed. The

trial Court after appreciation of evidence on record, convicted

the accused No.1 for the offences punishable under Sections

CRL.RP No. 100239 of 2015

332, 353 and 504 of I.P.C. and acquitted accused No.2 from the

charges levelled against him.

6. Revision petitioner/accused No.1 challenged the

said judgment of conviction and order of sentence before the

First Appellate Court in Crl.A.No.4/2010. The First Appellate

Court on re-appreciation of evidence on record by judgment

dated 31.10.2013, dismissed the appeal and confirmed

judgment of conviction and order of sentence passed by trial

Court.

7. Revision petitioner/accused No.1 challenged

concurrent finding of both courts below contending that the

approach and appreciation of oral and documentary evidence by

both the Courts below are contrary to law and evidence on

record. The defence of the accused has not been appreciated

with reference to evidence of PWs.1, 4, 5 and 6 and their

admission in the cross examination. The evidence of PW.7

Doctor who has treated injured complainant and issued wound

certificate Ex.P.4 is not substantiated by the evidence of PWs.1,

4, 5 and 6. The courts below on misreading the evidence on

record, erroneously recorded the finding holding that accused

CRL.RP No. 100239 of 2015

No.1 is guilty of the offences alleged against him. Therefore,

prayed for allowing revision petition and to set aside the

judgment of courts below. Consequently, to acquit the accused

No.1 from the charges levelled against him.

8. In response to notice, learned High Court

Government Pleader has appeared for respondent/State.

9. Heard the arguments of both sides.

10. On careful perusal of oral and documentary

evidence placed on record, it would go to show that the incident

in question took place on 17.4.2007 at about 1.00 p.m. in

Thippaikoppa cross. The complainant driver of bus bearing

No.KA-25/F-1957 stopped the vehicle at the cross for alighting

the passengers. At that time, accused No.1, who came by his

tractor asked the complainant to take bus side, further

complainant asked the accused No.1 to wait for some time,

since passengers alighting from the bus. However, both accused

started abusing the complainant in filthy language. Accused

No.1 dragged the complainant from the bus and assaulted on

his neck and chest. Accused No.2 assaulted over his shoulder,

thereby both the accused deter the complainant being public

CRL.RP No. 100239 of 2015

servant from lawful discharged of his duties. The prosecution to

prove the said allegations, merely relied on the evidence of

PW.1- driver of bus, who filed complaint as per Ex.P.1, PW.4 is

conductor, PWs.5 and 6 are inmates of the bus and also eye

witnesses to the incident. The said evidence was sought to be

corroborated by evidence of doctor PW.7 and wound certificate

Ex.P.4 with that of evidence of investigating officer PW.8.

11. The oral evidence of PWs.1 and 2, who are driver

and conductor of the bus would go to show that they have

spoken about the incident and accused questioning the

complainant for not giving side to them and started abusing the

complainant in filthy language. They have further deposed to

effect that complainant has asked accused No.1 to wait for

some time, since the passengers alighting from the bus. The

accused No.1 dragged PW.1 and assaulted him by means of

hand over his neck, chest and accused No.2 fisted on his

shoulder. PW.1 has identified M.O.1 and 2-Uniform and Banyan.

They have further deposed to the effect that accused have

deterred PW.1 from lawful discharged of his duties as a public

servant.

CRL.RP No. 100239 of 2015

12. PWs.5 and 6 are inmates of the bus and eye

witnesses to the incident and they have vouchsafed oral

testimony of PWs.1 and 2 and incident that took place on

17.4.2007 and overt act of accused Nos.1 and 2 in deterring

PW.1 from lawful discharged of his duties. The defence counsel

though has subjected PWs.1, 4, 5 and 6 to cross examination,

but nothing worth material has been brought on record, so as to

discredit their evidence. The presence of accused and place of

incident is not seriously disputed by defence counsel. PW.7

doctor has treated the injured PW.1 and issued wound

certificate as per Ex.P.4. On perusal of evidence of PW.7 and

wound certificate Ex.P.4, it would go to show that PW.1 was

examined by PW.7 at about 1.30 p.m. in PHC, Masur and on

examination found the following injuries.

i) Abrasion over both sides of neck

ii) Contusion over left side of forehead

2 c.m.X1 c.m.

iii) Tenderness over left shoulder.

The injury Nos.1 and 2 are opinioned to be simple in nature.

Looking to the time of incident at 1 p.m. and he being examined

CRL.RP No. 100239 of 2015

by PW.7 at 1.30 p.m at Masur PHC, it is evident that

complainant PW1 suffered injuries found in the Ex.P.4 wound

certificate, in the incident itself.

13. The defence has not elicited anything in the cross

examination of PWs.1, 4, 5 and 6 that there were other occasion

for the complainant PW.1 to suffer the injuries found in the

wound certificate Ex.P.4. Therefore, from the said material

evidence placed on record, it is evident that complainant PW.1

has suffered injuries found in Ex.P.4 due to overt act of

accused. The said fact has been corroborated by oral evidence

of PWs.1,4, 5 and 6. The fact that PW.1 was on duty as driver of

bus at the relevant point of time is not in dispute. Therefore,

from the above referred material placed on record, the courts

below have rightly held that the prosecution proved beyond all

reasonable doubt the offences under Sections 332, 353 R/w.

Section 34 of I.P.C. The trial Court has acquitted the accused

No.2 from the charges levelled against him. The prosecution has

not challenged the judgment of acquittal passed by the trial

Court and the same has attained finality.

CRL.RP No. 100239 of 2015

14. The courts below have convicted the accused No.1

for the offence punishable under Section 504 of I.P.C. The

evidence of PWs.1,4, 5 and 6 is not consistent with regard to

the alleged abusive words said to have been used by the

accused No.1, which were intending to provoke complainant to

commit breach of public peace. The mere reference of abusive

words in complaint Ex.P.1 and evidence of PW.1 alone itself

cannot be said as sufficient evidence to hold that there was

intentional insult with intent to provoke breach of public peace.

15. In this context of the matter, it is useful to refer to

the judgment of Hon'ble Apex Court in Fiona Shrikhande

V/s. State of Maharashtra, reported in AIR 2014 SC 957,

wherein it has been observed and held that

"Section 504 of IPC comprises of the following ingredients viz., a) Intentional insult,

b) the insult must be such as to give provocation to the persons insulted, and c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the

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CRL.RP No. 100239 of 2015

public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 of IPC."

16. The evidence of PWs.1, 4, 5 and 6 is not in

conformity with principles enunciated in the above referred

judgment of Honb'le Apex Court. Therefore, both courts below

have committed serious error in holding that prosecution

beyond all reasonable doubt proved the guilt of accused No.1

for the offence under Section 504 of I.P.C.

17. Now coming to the imposition of sentence, accused

No.1 was sentenced to undergo simple imprisonment for six

months for the offences punishable under Sections 332, 353

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CRL.RP No. 100239 of 2015

and 504 of I.P.C. Now in view of reasons referred above, the

finding of courts below for the offence punishable under Section

504 of I.P.C. held to be not sustainable in law. The offences

punishable under Sections 332, 353 of I.P.C. are punishable

with imprisonment or with fine or with both. Therefore,

discretion is left with the Court to impose imprisonment, fine or

with both. Looking to the facts and circumstances of the case

and nature of injury suffered by PW.1 and other attending

circumstances are taken into consideration, then it appears that

imposition of simple imprisonment for the offences punishable

under Sections 332 and 353 of I.P.C. appears to be too harsh

and the same needs to be interfered with by this Court.

18. Looking to the facts and circumstances of the case

and evidence on record, if accused No.1 is sentenced to pay fine

of Rs.5,000/- each for the offences punishable under Sections

332 and 353 of I.P.C. and in default of payment of fine amount

sentenced to undergo simple imprisonment for three months

each is ordered will meet the ends of justice. Consequently,

proceed to pass the following.

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CRL.RP No. 100239 of 2015

ORDER

Criminal Revision Petition filed by revision

petitioner/accused No.1 is hereby partly allowed.

The judgment of the First Appellate Court on the file of II

Addl. District and Sessions Judge, Haveri, sitting at Ranebennur

in Crl.A.No.4/2010, dated 31.10.2013, confirming the judgment

of the trial Court on the file of JMFC, Hirekerur in

C.C.No.209/2007, dated 6.1.20210 is hereby modified as

under:

Accused No.1 is sentenced to pay fine of Rs.5,000/- for

the offence punishable under Section 332 of I.P.C. and in

default of payment of fine amount sentenced to undergo simple

imprisonment for three months.

Accused No.1 is sentenced to pay fine of Rs.5,000/- for

the offence punishable under Section 353 of I.P.C. and in

default of payment of fine amount sentenced to undergo simple

imprisonment for three months.

Accused No.1 is acquitted for the offence under Section

504 of IPC.

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CRL.RP No. 100239 of 2015

In exercising power under Section 357 of Cr.P.C., the

entire fine amount is ordered to be paid to inujured/PW.1.

The registry is directed to transmit the records with the

copy of this judgment to trial Courts.

(Sd/-) JUDGE

VB