Karnataka High Court

Ashok Rama Madiwal vs State Of Karnataka on 30 May, 2023

Bench: Anil B Byabkj

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                                                         CRL.RP No. 100242 of 2021



                                   IN THE HIGH COURT OF KARNATAKA,
                                            DHARWAD BENCH


                                 DATED THIS THE 30TH DAY OF MAY, 2023

                                                BEFORE

                                 THE HON'BLE MR JUSTICE ANIL B KATTI
                             CRIMINAL REVISION PETITION NO. 100242 OF 2021
                        BETWEEN:

                        ASHOK RAMA MADIWAL,
                        AGED 47 YEARS, OCC. COOLIE,
                        R/O MADIWALKERI, HONAVAR,
                        TQ: HONAVAR, (UTTARA KANNADA)-581421.
                                                                      ...PETITIONER
                        (BY SRI. S.P. KANDAGAL, ADV.)

                        AND:
          Digitally
          signed by J
J
          MAMATHA       STATE OF KARNATAKA,
          Date:
MAMATHA   2023.06.01    THROUGH PSI, HONAVAR POLICE STATION,
          10:35:41      REPRESENTED BY STATE PUBLIC PROSECUTOR,
          +0530
                        HIGH COURT OF KARNATAKA,
                        DHARWAD BENCH, DHARWAD-580011.
                                                                    ...RESPONDENT
                        (BY SRI. PRAVEEN K. UPPAR, HCGP)


                                                  ***
                             THIS REVISION PETITION IS FILED U/SEC. 397 R/W 401
                        OF CR.P.C., PRAYING TO THE ORDER PASSED ON 31.07.2021
                        BY THE PRL. DISTRICT AND SESSIONS JUDGE, UTTARA
                        KANNADA, KARWAR IN CRIMINAL APPEAL NO. 83/2011
                        CONFIRMING THE ORDER PASSED ON 13.06.2011 BY THE PRL.
                        J M F C, HONAVAR IN CC NO. 266/09 CONVICTING THE
                        PETITIONER OF THE OFFENCES UNDER SEC. 504.354 AND 506
                        OF THE IPC, AND QUASHING THE SENTENCE IMPOSED ON THE
                        PETITIONER FOR THE SAID OFFENCES.
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                                  CRL.RP No. 100242 of 2021



    THIS REVISION PETITION COMING ON FOR FINAL
HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 15.03.2023, THIS DAY, THE
COURT, MADE THE FOLLOWING:

                         ORDER

Appellant/complainant feeling aggrieved by

judgment of First Appellate Court on the file of Principal

District and Sessions Judge, Uttara Kannada, Karwar,

dated 31.04.2021, preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

complainant can be stated in nutshell to the effect that on

17.03.2009 at about 1:45 p.m, near Honavar bus-stand

while complainant was proceeding to the cloth shop of her

husband, accused started abusing in filthy language,

further dragged by holding her left hand with an intention

to outrage her modesty. Complainant by screaming ran

towards the shop of her husband, but accused chased and

abused her in filthy language and administered threat to

CRL.RP No. 100242 of 2021

takeaway her life. Neighboring shop owners have pacified

the quarrel. On these allegations made in the complaint,

the investigating officer having carried out investigation

filed charge-sheet.

4. In response to the summons, accused appeared

through counsel and denied charges leveled against him.

Prosecution in order to prove the allegation made against

accused relied on the evidence of PWs.1 to 7 and

documents Exs.P.1 to 4.

5. On closure of the prosecution evidence,

statement of accused under Section 313 of Cr.P.C, came

to be recorded. Accused has not chosen lead any defence

evidence and claimed that false case is filed against him.

Trial Court after appreciating the evidence on record has

convicted the accused for the offences punishable under

Sections 354, 504, 506 of Indian Penal Code (hereinafter

referred as 'IPC' for brevity) and imposed sentence as per

order of sentence.

CRL.RP No. 100242 of 2021

6. The said judgment of conviction and order of

sentence was challenged by accused before First Appellate

Court in Criminal Appeal No.83/2011 on the file of

Principal District and Sessions Judge, Uttara Kannada,

Karwar. The First Appellate Court on re-appreciating the

material evidence on record, dismissed the appeal and

confirmed the judgment of conviction and order of

sentence as ordered by trial Court.

7. The revision petitioner-accused challenged the

concurrent findings of both Courts below contending that

both the Courts below have not considered the material

discrepancies and contradictions in the oral evidence of

prosecution witnesses which goes to the route of the case.

The Courts below were not justified in relying on one part

of suggestion to the prosecution witnesses, while rejecting

other part of it. The Courts below committed serious error

in not appreciating the fact that petitioner acted in

exercise of right of self-defence and the same has been

established by preponderance of probabilities, though not

proved beyond reasonable doubt. Therefore, prayed for

CRL.RP No. 100242 of 2021

allowing the revision petition and to set-aside the

judgment of conviction and order of sentence passed by

trial Court which is confirmed by First Appellate Court.

Consequently, to acquit the accused from the charges

leveled against him.

8. In response to the notice, learned HCGP has

appeared for respondent-State.

9. Heard the arguments of both sides.

10. On careful perusal of oral and documentary

evidence placed on record by the prosecution, it would go

to show that on 17.03.2009 at about 1:45 p.m, near

Honavar bus-stand, complainant-Shreekala Shastry was

going to the shop of her husband. At that time, accused

scolded the complainant in filthy language and dragged

her hand in order to outrage her modesty. It is further

alleged that accused has administered threat to takeaway

the life of complainant. Prosecution to prove allegations

mainly relies on the evidence of PWs.1, 4 and 5.

CRL.RP No. 100242 of 2021

11. Learned counsel for the revision petitioner

argued that accused is unknown to complainant and there

was no any motive to pick up quarrel with complainant.

The suggestions to the witnesses is not an admission and

on the basis of it, no conviction can be sustained.

12. Per contra, learned HCGP has argued that oral

evidence of PWs.1, 4 and 5 is consistent with regard to the

manner which the incident took place in the open market

in front of the bus-stand of Honavar. There is absolutely

no any valid reason to disbelieve their evidence.

13. The evidence of PW.6- Dr.Basavana Gouda and

wound certificate-Ex.P.3 substantiate the fact that

complainant has suffered linear scratch was seen over left

hand about 5 c.m, long. PW.1 has deposed to the effect

that on 17.03.2009 at 1:45 p.m, while she was going from

their one shop to another shop near Honavar bus-stand.

At that time, by holding her hand dragged in a public

place, further abused in filthy language with an intention

to outrage her modesty in public place. PW.1 by screaming

rushed to the shop of her husband and accused chased

CRL.RP No. 100242 of 2021

her. Neighboring shop owners have pacified the quarrel.

On account of accused dragging the hand nail scratch

marks were found on her hand. PWs.4 and 5 have spoken

to the effect that complainant was screaming for help and

accused was following her by abusing in filthy language.

The evidence of PWs.1, 4 and 5 is consistent enough with

regard to having seen the accused following complainant

who was screaming for help and they have pacified the

quarrel.

14. The evidence of PW.6- Dr.Basavana Gouda

would go to show that on 17.03.2005 at about 5:25 p.m,

he has examined the complainant and found scratch

wound on the left hand measuring 5 c.m, and the said

injury is opined to be simple in nature, accordingly issued

wound certificate as per Ex.P.3. It is pertinent to note that

the incident in question took place at about 1:45 p.m, on

17.03.2019 and she was examined by the doctor-PW.6 at

about 5:25 p.m on the same day. The defence has not

elicited anything in cross-examination of PW.1 about

possibility of complainant sustaining injury over her left

CRL.RP No. 100242 of 2021

hand during intervening time of incident and the time of

examination by the doctor-PW.6. Therefore, it will have to

be held that oral evidence of PW.1 to the effect that she

suffered scratched nail injury over her left hand due to

accused dragging by holding her hand is supported by oral

evidence of PW.6 and wound certificate-Ex.P.3.

15. Learned counsel for the revision petitioner

argued that accused is unknown to complainant and there

was no any motive. The presence of the accused at the

place of incident and the complainant suffering nail scratch

mark injury on the left hand is supported by above

referred oral evidence placed on record by the

prosecution. It has been elicited in the cross-examination

of PW.1 that on the next day accused has filed complaint

against complainant-PW.1 which came to be registered in

Crime No.31/2009. It is suggested to PW.4 that wife of

complainant is a strong lady and she assaulted accused

and in retaliation accused has assaulted on complainant.

It means that accused has admitted that he has assaulted

the complainant and used criminal force.

CRL.RP No. 100242 of 2021

16. Learned counsel for the revision petitioner

argued that accused has exercised right of private

defence. In support of such contention, reliance is placed

on the decision of Hon'ble Gauhati High Court in Manik

Malakar Vs State of Assam, dated 02.07.1976 and

another decision of Hon'ble Orissa High Court in State of

Orissa Vs Nirupama Panda dated 16.02.1988. I have

carefully gone through both the decisions wherein accused

has been acquitted by upholding the contention of

exercising private defence in given set of facts of those

cases.

17. In the present case, no any case of exercising

private defence was made out during the cross-

examination of PWs.1, 4 and 5. PW.4 has denied the

suggestions that complainant is a strong lady and she first

assaulted the accused and therefore, accused has

assaulted the complainant. The said denial suggestion

cannot be accepted as sufficient evidence for justification

of exercising right of private defence which was raised for

the first time in the present revision petition. The

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CRL.RP No. 100242 of 2021

prosecution out of the evidence on record has established

the offences under Section 354 of IPC against accused.

18. The trial Court has convicted the accused for

the offence punishable under Sections 504 and 506 of IPC

and imposed sentence. The evidence of PWs.1, 4 and 5 is

not consistent with regard to the alleged abusive words

said to have been used by accused with an intention to

insult the complainant. The mere reference of sum abusive

words by itself cannot be said as sufficient evidence to

prove the charge under Section 504 of IPC.

19. In this context it is useful to refer the judgment

of Hon'ble Apex Court in Fiona Shrikhande Vs State of

Maharashtra and Another reported in AIR 2014 SC

957, wherein it has been observed and held that:

"Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person 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

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CRL.RP No. 100242 of 2021

insult must be of such a degree that should provoke a person to break the 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 IPC."

Looking to the complaint allegations as per Ex.P.1

and the evidence of PWs.1, 4 and 5, the same does not

meet the legal requirements in view of principles

enunciated in the above referred judgment of Hon'ble

Apex Court.

20. There is no required evidence to prove the

offence under Section 506 of IPC. The mere allegation of

accused administering threat to take away the life the

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CRL.RP No. 100242 of 2021

complainant in Ex.P.1 itself cannot be said as sufficient

evidence to prove the charge under Section 506 IPC.

Therefore, the trial Court as well as the First Appellate

Court committed error in holding that the accused is guilty

of the offence under Sections 504 and 506 of IPC. The

prosecution out of above referred evidence on record has

proved beyond reasonable doubt that accused has

committed offence under Section 354 of IPC.

21. Now the questions remains about imposition of

sentence for the proved offence under Section 354 of IPC.

The incident in question took place on 17.3.2009. The

punishment prescribed for the said offence is

imprisonment of either description for a term which may

extend to two years or with fine or with both. The

imposition of punishment is substituted by Act 13 of 2013

with effect from 3.2.2013. The offence under Section 354

of IPC shall be punished for imprisonment of either

description for a term which shall not be less than one

year, but which may extend to five years and shall also be

liable to fine. Therefore, by substitution of sentence for the

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CRL.RP No. 100242 of 2021

offence under Section 354 of IPC with effect from 3.2.2013

the imposition of sentence of one year imprisonment and

also fine is mandatory and no discretion is left with the

Court. However, in the present case, offence took place

prior to substitution i.e. on 17.3.2009, therefore

punishment prescribed prior to the substitution will have

to be applied. Looking to the nature of evidence on record,

fact and circumstances of the case and other attending

circumstances, in my opinion, a fine of Rs.5,000/- in

default of payment of fine to undergo simple imprisonment

for five months for the offence under Section 354 of IPC is

ordered will meet the ends of justice. Consequently,

proceed to pass the following:

ORDER

Revision petition filed by accused is hereby

partly allowed.

The judgment of the First Appellate Court on

the file of Prl. District and Sessions Judge, Uttar

Kannada, Karawar in Crl.A.83/2011, dated 31.7.2021

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confirming the judgment of the Trial Court on the file

of Prl. JMFC, Honnavar in CC.No.266/2009, dated

13.6.2011 is ordered to be modified as under:

Accused is convicted for the offence punishable

under Section 354 of IPC and sentenced to pay a fine

of Rs.5000/-. In default of payment of fine shall

undergo simple imprisonment for a period of three

months.