Karnataka High Court

Sheik Mohammed Irfan vs The State Of Karnataka on 8 April, 2024

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                                                   NC: 2024:KHC:14467
                                                CRL.RP No. 50 of 2018




             IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 8TH DAY OF APRIL, 2024

                                      BEFORE
                    THE HON'BLE MR JUSTICE ANIL B KATTI
               CRIMINAL REVISION PETITION NO. 50 OF 2018
             BETWEEN:

                 SHEIK MOHAMMED IRFAN
                 S/O MUSTHAK,
                 AGED ABOUT 21 YEARS,
                 R/AT NEAR NAGABANA,
                 ALAKE, KUDROLI,
                 MANGALURU,
                 D.K. DISTRICT-575 214.
                                                        ...PETITIONER
             (BY SRI.LETHIF B., ADVOCATE)

             AND:

                 THE STATE OF KARNATAKA
                 BY MANGALURU NORTH POLICE,
                 D.K. DISTRICT,
Digitally        REP BY SPP HIGH COURT BLDG,
signed by        BANGALORE-560001.
SUMITHRA R
Location:                                              ...RESPONDENT
HIGH       (BY SRI.M.R.PATIL, HCGP)
COURT OF
KARNATAKA
                  THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING
             TO SET ASIDE THE JUDGMENT/ORDER IN CRL.A.NO.140/2017
             DATED 18.12.2017 PASSED BY THE PRINCIPAL SESSIONS
             JUDGE, D.K., MANGALORE AND JUDGMENT AND ORDER DATED
             15.09.2017 IN C.C.NO.908/2015 PASSED BY THE II-J.M.F.C.,
             MANGALORE BY ALLOWING THE ABOVE REVISION PETITION
             AND ACQUIT THE PETITIONER.

                  THIS PETITION, COMING ON FOR FINAL HEARING, THIS
             DAY, THE COURT MADE THE FOLLOWING:
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                                             NC: 2024:KHC:14467
                                          CRL.RP No. 50 of 2018




                             ORDER

Revision petitioner/accused feeling aggrieved by

judgment of the First Appellate Court on the file of

Principal Sessions Judge, Dakshina Kannada, Mangaluru in

Crl.A.No.140/2017 dated 18.12.2017 in confirming the

judgment of Trial Court on the file of JMFC II Court,

Mangaluru in C.C.No.908/2015 dated 15.09.2017

preferred this revision petition.

2. Parties to the revision petition are referred with

their ranks as assigned in the Trial Court for the sake of

convenience.

3. Heard the arguments of both sides.

4. After hearing the arguments of both sides and

on perusal of Trial Court records, so also the impugned

judgment under appeal, the following points arise for

consideration:

1) Whether the impugned judgment of the First Appellate Court in confirming the judgment of

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Trial Court for the offence punishable under Section 324, 504 of IPC is perverse, capricious and legally not sustainable?

2) Whether interference of this Court is required?

5. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that, on

16.01.2015 at about 12.30 p.m., complainant PW.1

Naveen Shetty was proceeding by driving his Pickup

vehicle bearing registration No.KA-19-C-4032 on Azizuddin

road of Mangaluru city, near M.S.Pai shop. At that time,

accused came on his motorcycle and stopped the vehicle

of complainant by giving signal. The accused had abused

complainant in filthy language with an intention to cause

insult to him and further by picking up a stone assaulted

over the right hand, right chest and thereby caused simple

injuries to the complainant. When the complainant

questioned the accused as to why he is abusing and

assaulting, the accused further abused the complainant in

filthy language and thereafter accused left the place. On

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these allegations made in the complaint, the Investigating

Officer having completed the investigation filed charge

sheet.

6. Prosecution in order to prove the allegations

made against accused, relied on the oral testimony of

PWs.1 to 8 and the documents Exs.P.1 to 5, so also got

identified MO.1. On closure of the prosecution evidence,

the statement of accused under Section 313 of Cr.P.C.

came to be recorded. Accused has denied all the

incriminating material evidence appearing against him and

claimed that false case is filed. The Trial Court after

hearing the arguments of both sides and on appreciation

of oral and documentary evidence placed on record has

convicted the accused for the offence punishable under

Section 324, 504 of Indian Penal Code,1860 (hereinafter

for brevity referred to as the "IPC") and imposed sentence

as per order of sentence.

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7. Accused challenged the said judgment of

conviction and order of sentence before the First Appellate

Court. The First Appellate Court after re-appreciation of

oral and documentary evidence placed before it, has

dismissed the appeal and confirmed the judgment of

conviction and order of sentence passed by the Trial Court.

8. The accused is challenging concurrent findings

of both the Courts below. Learned counsel for the accused

has argued that the evidence of the two witnesses i.e.,

PW.1 Naveen Shetty and an eye witness PW.2 Dayanand

are not reliable to prove the allegations made against

accused. The said evidence is contrary to the treated

doctor PW.5 Dr.Sudhakar who issued wound certificate

Ex.P.5. The injuries found on the injured PW.1 Naveen

Shetty, Ex.P.5 wound certificate does not correspond with

the complaint allegations and the oral testimony of PW.1.

The Courts below have not properly appreciated the

evidence on record and arrived at an improper conclusion

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in holding the accused guilty for the offences alleged

against him and as such, needs interference of this Court.

9. Per contra, learned High Court Government

Pleader has argued that the evidence of injured PW.1

Naveen Shetty and that of an eye witness PW.2 Dayanand

is consistent with regard to the manner in which the

incident has taken place, wherein PW.1 Naveen Shetty has

sustained injuries. The said oral testimony is further

corroborated by the evidence of PW.5 Dr.Sudhakar who

examined injured PW.1 Naveen Shetty and found injuries

noted in Ex.P.5. The Courts below have rightly appreciated

the oral testimony of PWs.1, 2 and 5 in holding that the

charges levelled against accused are proved and the said

findings recorded by both the Courts below are based on

the legal evidence on record and the same does not

warrant any interference by this Court.

10. PW.1 Naveen Shetty has deposed to the effect

that on 16.01.2015 he was proceeding by driving his

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Pickup vehicle bearing registration No.KA-19-C-4032 on

Azizuddin road, Mangaluru City, near M.S.Pai shop. At that

time accused came driving his motorcycle and after

overtaking his vehicle, stopped the vehicle by giving

signal, due to which the complainant stopped his vehicle.

The accused started abusing him in filthy language and

further by picking up stone assaulted on his right hand,

right shoulder and chest, due to which he suffered injuries.

When he questioned as to why he is abusing and

assaulting him, he started further abusing the complainant

in filthy language. Thereafter, on taking treatment in

Government Wenlock Hospital filed a complaint Ex.P.1.

11. PW.2 Dayanand who is the passer of the road at

the time of incident has deposed to the effect that, PW.1

Naveen Shetty was proceeding by driving his Pickup van

bearing registration No. KA-19-C-4032, at that time

accused came on his motorcycle and after overtaking the

pickup van stopped the said vehicle. Accused started

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abusing the complainant in filthy language and thereafter

by picking up stone has assaulted on his right hand.

12. The evidence of PW.5 Dr.Sudhakar, would go to

show that on 16.01.2015 at 1.50 p.m. he has examined

PW.1 Naveen Shetty and found the following injuries:

1) Abrasion Right Side of Chest ½ X ½ cm.

2) Contusion Right Side of Chest 5 X 5 cm.

3) Abrasion Right Arm Poster only ½ X ½ cm.

4) Contusion Right Arm Poster only 2 X 2 cm.

5) Abrasion Right Elbow ½ X 1 cm.

PW.5 Dr.Sudhakar is of the opinion that all the

aforementioned injuries are simple in nature and the said

injuries are caused within six hours from the time of his

examination.

13. If the evidence of aforementioned witnesses

PW.1 Naveen Shetty, PW.2 Dayanand and that of PW.5

Dr.Sudhakar is appreciated, then it would go to show that

PW.1 Naveen Shetty has suffered injuries noted in wound

certificate Ex.P.5 and the said injuries can be caused if a

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person is assaulted by means of stone. The defence

counsel though has subjected these three material

witnesses of the prosecution, nothing worth material has

been brought on record, so as to discredit their evidence.

Looking to the time of incident at about 12.30 p.m. and

the time of injured being examined by the doctor PW.5

Dr.Sudhakar at about 1.50 p.m. and in the absence of any

material in their cross-examination, there is no scope of

complainant suffering injury by any other means than the

one in the incident claimed during the course of his

evidence.

14. The seizure of MO.1 is claimed to be under the

panchanama Ex.P.3. The material witnesses PW.6 Latif

and PW.7 Mohammed Sheik have not supported the case

of prosecution to prove the seizure of MO.1 under

panchanama Ex.P.3. However, PW.6 Latif admits his

signature on Ex.P.3 as Ex.P.3(b). The evidence of PW.8

would go to show that, he has prepared the panchanama

Ex.P.3 in presence of the panch witness PW.6 Latif and

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PW.7 Mohammed Sheikh and seizure of MO.1. The said

evidence of Investigating Officer PW.8 K.K.Ramakrishna

has not been challenged in the cross-examination, other

than making suggestion that panchanama has been

concocted, no any other material has been brought on

record. Therefore, the prosecution out of the material

evidence placed on record has proved that on account of

overt act of accused by means of MO.1 stone seized in this

case PW.1 Naveen Shetty has suffered injuries as noted in

the wound certificate Ex.P.5. Therefore, both the Courts

below have rightly held that prosecution has proved the

offence punishable under Section 324 of IPC.

15. The prosecution also alleges that accused has

abused the complainant in filthy language with an

intention to cause insult to provoke complainant, to

commit breach of peace. In this contest of the matter, it is

useful to refer to the judgment of the Hon'ble Apex Court

in Fiona Shrikhande V. State of Maharashtra and

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another reported in AIR 2014 SC 957 wherein in 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 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."

The evidence of material witnesses PW.1 Naveen

Shetty, PW.2 Dayanand does not meet the above referred

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legal requirement in proof of the offence under Section 504

of IPC.

16. The only evidence that has been proved by the

accused is that the offence punishable under Section 324

of IPC. Now question remains is the imposition of

sentence. The Trial Court has imposed the sentence of

simple imprisonment of six months for the offence

punishable under Section 324 of IPC. The said imposition

of sentence has also been affirmed by the First Appellate

Court. However, both Courts have not recorded any

finding based on the circumstances brought on record by

the prosecution for imposition of sentence. The offence

punishable under Section 324 is punishable with

imprisonment for three years or with fine or with both. The

Court while imposing sentence will have to keep in mind

the nature of the allegations made against accused, the

weapon used by accused for inflicting the injury. The

circumstances under which the incident took place, any

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other attending circumstances that has been brought on

record.

17. In the present case the incident in question

took place between two unknown persons. The

prosecution has not brought any evidence on record

regarding the enmity between the complainant and the

accused. There are no other circumstances that has been

brought on record leading to the incident in question which

compels the imposition of sentence of imprisonment.

Therefore, looking to the nature of evidence placed on

record and the circumstances under which the offence has

been committed in inflicting injury to PW.1 Naveen Shetty,

the imposition of sentence of simple imprisonment for six

months for the proved offence under Section 324 of IPC is

too harsh and it is disproportionate to the proved offence

against accused and the same needs to be interfered by

this Court. In view of the facts and circumstances of the

case referred above, if the accused is sentenced to pay

fine of Rs.2,000/- and in default of payment of fine shall

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undergo simple imprisonment for three months is ordered

for the offence punishable under Section 324 of IPC will

meet the ends of justice. Consequently, proceed to pass

the following:

ORDER

Revision Petition filed by the revision petitioner is

hereby partly allowed.

The judgment of the First Appellate Court on the file

of Principal Sessions Judge, Dakshina Kannada, Mangaluru

in Crl.A.No.140/2017 dated 18.12.2017 in confirming the

judgment of Trial Court on the file of JMFC (II Court),

Mangaluru in C.C.No.908/2015 dated 15.09.2017 is

hereby ordered to be modified as under: