Karnataka High Court
Jayanna vs State Of Karnataka on 11 January, 2024
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CRL.RP No. 577 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 577 OF 2017
BETWEEN:
1. JAYANNA
S/O LATE GURUSHIDDAIAH,
63 YEARS,
2. SANTHOSH
S/O JAYANNA,
28 YEARS,
BOTH RESIDENTS OF SASALU VILLAGE,
SHETTIKERE HOBLI,
CHIKKANAYANAHALLI TALUK-561204.
...PETITIONERS
(BY SRI. S T BIKKANNAVAR., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHIKKANAYAKANAHALLI
Digitally signed
by SANDHYA S POLICE-572226,
Location: High REPTD. BY LEARNED
Court of
Karnataka HIGH COURT GOVERNMENT PLEADER
...RESPONDENT
(BY SRI. M.R.PATIL, HCGP.)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
4.4.2017 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, TIPTUR IN CRL.A.NO.10030/2015 AT
ANNEXURE-A ETC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 577 of 2017
ORDER
The revision petitioners/accused Nos.1 and 2 have
preferred revision petition against the judgment of
conviction dated 04.04.2017 passed in Crl.Appeal
No.10030/2015 by the Court of the V Additional District
and Sessions Judge, Tiptur (hereinafter referred to as
'Appellate Court' for short).
2. For the sake of convenience, the parties in this
revision petition are referred to as per their status and
rank before the Trial Court.
3. The brief facts of the prosecution is that on
29.08.2012 at about 8.00 p.m. when the complainant
along with CW.2 was at his house situated at Sasalu
village, Shettikere Hobli which comes within the limits of
C.N.Halli Police station, the accused Nos.1 and 2 in
furtherance of common intention to quarrel with the
complainant entered into the house of the complainant
and abused CW.2 in filthy language and voluntarily
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assaulted them and threatened them that to lit fire to the
house of the complainant and also given life threat to
them, thereby the accused have committed offence
punishable under Section 448,504,323,506 r/w 34 Indian
Penal Code.
4. After filing of charge sheet, cognizance was
taken by the Trial Court and the case was registered in
C.C.No.693/2012. In pursuance of the summons, the
accused have appeared before the Court and enlarged on
bail. Charge framed and read over and explained to the
Accused. Having understood the same accused pleaded
not guilty and claimed to be tried.
5. To prove the guilt of the accused, 6 witnesses
were examined as PWs.1 to 6 and 3 documents were got
marked as Exs.P1 to P3. On closure of prosecution side
evidence, statement under Section 313 of Cr.P.C. was
recorded against the accused and the accused totally
denied the evidence of prosecution witnesses and do not
choose to adduce any evidence on their behalf. On
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hearing both sides, the Trial Court has acquitted the
accused for the alleged commission of offence. Being
aggrieved by this impugned judgment of acquittal, the
complainant has preferred appeal in Crl.A.No.10030/2015
and the same came to be allowed vide judgment dated
04.04.2017 and the judgment of acquittal dated
22.06.2015 passed in C.C.No.693/2012 by the Court of
the Prl.Civil Judge and JMFC, Chikkanayakanahalli, is set
aside. Consequently, accused Nos.1 and 2 are convicted
for the offence punishable under Section 448,504,323,506
r/w 34 Indian Penal Code. Further, they are sentenced to
pay a fine of Rs.500/- each for the offence punishable
under Section 448 r/w 34 Indian Penal Code, in default of
payment of fine amount, they shall undergo simple
imprisonment for a period of 2 months. To pay a fine of
Rs.1,000/- each for the offence punishable under Section
323 r/w 34 Indian Penal Code, in default of payment of
fine, they shall undergo simple imprisonment for a period
of 3 months. Lastly, to pay a fine of Rs.1,000/- each for
the offence punishable under Section 504 r/w 34 Indian
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Penal Code, in default of payment of fine, they shall
undergo simple imprisonment for a period of 3 months.
Being aggrieved by this judgment of conviction and order
of sentence, the revision petitioners/accused Nos.1 and 2
have preferred this revision petition.
6. Learned counsel appearing on behalf of revision
petitioner submits that the learned Appellate Court while
reversing the order of Trial Court did not explained the
reasons to acquit the accused. It is the duty of the
Appellate Court to dispel the reasons given for acquittal
before reversing such an order of acquittal. The learned
Sessions Judge has erred in assessing the facts and
circumstances under which the complaint came to be
lodged. The Appellate Court has not properly appreciated
the evidence on record in accordance with law and facts.
The prosecution has not placed any material to show that
PW.1- Siddalingakumar is the owner of the house. On all
these grounds, he sought to allow the revision petition.
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7. As against this, learned High Court Government
Pleader submits that the Appellate Court has properly
appreciated the evidence on record in accordance with law
and facts and that there are no grounds to interfere with
the judgment of conviction and order of sentence passed
by the Appellate Court. On this ground, he sought to
dismiss the revision petition.
8. Having heard the arguments on both sides, the
following points would arise for my consideration:
i. Whether the Appellate Court has
committed error in reversing the
judgment of acquittal passed by the Trial
Court without proper appreciation of the
evidence on record in accordance with law
and facts?
ii. What order?
9. My answer to the above points are as under:
Point No.1: in affirmative
Point No.2: as per final order.
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Regarding point No.1:
10. I have carefully examined the material placed
before this Court.
It is the case of the prosecution that on 29.08.2012
at about 8.00 p.m. when the complainant along with CW.2
was at his house situated at Sasalu village, Shettikere
Hobli which comes within the limits of C.N.Halli Police
station, the accused Nos.1 and 2 in furtherance of
common intention to quarrel with the complainant entered
into the house of the complainant and abused CW.2 in
filthy language and voluntarily assaulted them and
threatened them that to lit fire to the house of the
complainant and also given life threat to them. Thus, the
accused Nos.1 and 2 have committed the alleged offence.
11. According to the case of prosecution, the
accused having common intention, has trespassed the
house of PW.1. With regard to the commission of offence
punishable under Section 448 r/w 34 of Indian Penal Code
is concerned, the prosecution has not shown the house
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number of the PW.1/complainant. Even the investigating
officer has not produced any documents to show that the
house in question which is mentioned in Ex.P2 - spot
panchanama belongs to the PW.1/complainant. Since the
prosecution has failed to prove that PW.1/complainant
was the owner of the house in question at relevant point of
time, at the time of trespassing the house of
PW.1/complainant does not arise. With regard to the
commission of offence punishable under Section 323,504,
506 r/w 34 Indian Penal Code are concerned, in Ex.P1 -
complaint, the PW.1/complainant has stated that the
accused have abused in filthy language and assaulted
them with hands.
12. PW.1-Siddalingakumar and PW.2-Ravikumar
have deposed in their evidence as to the assault made by
the accused. After the assault, PWs.1 and 2 have not
obtained any medical treatment. The intention and motive
of the accused have entered the house of
PW.1/complainant has not disclosed in the complaint or in
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the evidence of prosecution witnesses. The investigating
officer has also not examined by the prosecution.
Considering all these aspects, the Trial Court has observed
in paragraph Nos. 23 to 29 as under:
"23. It is settled law that when allegations of
commission of offence under section 323 of IPC is made
against accused, the prosecution is required to prove that:
(1) The accused actually caused bodily pain, disease or
infirmity to the complainant.
(2) The accused did so with the intention of causing hurt or
with the knowledge that hurt was likely to be caused.
Further when the allegations of commission of offence under
section 448 of IPC is made against accused, the prosecution
is required to prove that:
(1) The complainant was in possession of the property.
(2) property consisted of a building, tent or vessel used as
human dwelling or a building used as place of worship or for
custody of property;
(3) accused entered, into or upon such building, tent or
vessel;
(4) having entered such building, tent or vessel accused
remained there unlawfully;
(5) his intention was to commit an offence or intimidate,
insult or annoy the person in possession.
Further when the allegations of commission of offence under
section 504 of IPC is made against accused, the prosecution
is required to prove that:
(1) that the accused insulted some person;
(2) that he did so intentionally;
(3) that he thereby gave provocation to that person;
(4) that he intended or knew that it was likely that such
provocation would cause that person to break the public
peace or to commit any other offence.
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Further when the allegations of commission of offence under
section 506 of IPC is made against accused, the prosecution
is required to prove that:
(1) the accused threatened someone with injury to his
person, reputation or property or the property etc., or
another in whom the former was interested.
(2) the accused did so with intent to cause alarm to the
victim of offences; to
(3) he did so to cause that the victim to perform any act
which he was not legally bound to do.
24. The overall analysis of aforesaid evidence on
record clearly reveals that the prosecution in this case has
failed to prove the existence of aforesaid ingredients to
attract the aforesaid allegations levelled against the accused.
Further the presence of CW3 at the time of alleged incident is
doubtful. It is because the complainant in Ex.P1 and in his
portion of examination-in-chief has stated that at the time of
alleged incident CW3 was present. However in his further
examination-in-chief itself the complainant has stated that
after occurrence of the incident, after hearing his screaming
CW3 came and pacified the quarrel. In his cross- examination
PW1 has also stated that CW3 came to the spot of incident
after commencement of the quarrel. Hence, there is variance
between the case of the prosecution and the version of PW1
in his examination-in-chief and also in his cross-examination.
25. On the other hand PW2 another alleged injured
also state before Court that after the occurrence of the
incident CW3 and CW4 came and pacified the quarrel. On the
other hand CW3 in his evidence has deposed that after
knowing about the quarrel himself and CW4 went inside the
house and pacified the quarrel. The said version of PW1 to
PW3 in respect of presence of CW3 at the time of occurrence
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of alleged incident creates doubt in the mind of the Court.
Further PW1 in his evidence has pleaded ignorance about the
existence of house of one Mallikarjunaiah and others adjacent
to his house. On the other hand PW2 who is brother of the
complainant in his cross-examination has admitted that their
house is surrounded by house of Mallikarjunaiah and others.
Further PW1 has denied that he is running a Shop at Tiptur
and whereas PW2 has admitted that the complainant is
running a Shop at Tiptur. According to PW1 and PW2 the said
incident took place since the accused have previous ill-will
against them. However, in this regard the prosecution has
not produced any document and hence the said contention of
PW1 and PW2 is not tenable.
26. According to the complainant and according to
the prosecution PW3 and PW4 were present at the time of
alleged incident. They have pacified the quarrel. However,
PW3 and PW4 in their cross- examination have admitted that
their house is situated far away from the premises of the
complainant. Further PW2 to PW4 have clearly admitted
about the existence of residential house of Mallikarjunaiah
and others nearby the house of the complainant and hence if
at all any such incident as contended by the prosecution has
occurred, the neighbours of the complainant ought to have
witnessed the same. Further it is the case of the complainant
that the said incident took place initially inside the house and
thereafter outside the house. However PW3 who is one of the
alleged eye- witness deposed before the Court that no
quarrel took place inside the house of the complainant.
Further none of the prosecution witnesses have deposed the
alleged abusive words used by the accused at the time of
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said incident. Further the materials on record also reveals
that the concerned Investigating Officer has not made any
attempts to secure the statement of witnesses of the locality.
Further the concerned Investigating Officer has not cited
residents of said locality as witnesses. The said fact creates
doubt about the case of the prosecution.
27. Further the complainant and PW2 have admitted
that CW3 to CW5 are having good relationship with them and
even said PW3 to PW5 also admitted this fact in their cross-
examination. Hence, PW3 to PW5 appears to be interested
witnesses and the evidence of PW1 to PW5 does not inspire
confidence of the Court. Further evidence of CW6 is not
helpful to prosecution as his evidence revolves around the
fact of conducting investigation in this case.
28. As stated above the prosecution has failed to
secure the concerned Investigating Officer and non-
examination of Investigating Officer is fatal to the case of
prosecution. The overall analysis of aforesaid evidence on
record clearly reveals that version of PW1 and PW2 in respect
of occurrence of incident is contrary with each other. Likewise
evidence of alleged eye-witnesses PW3 & PW5 also
contradicts with the version of complainant and version of
prosecution witnesses does not inspire confidence of the
court and hence, the Court opines that prosecution has
miserably failed to prove the case beyond reasonable doubt.
29. Further it is well settled law that the prosecution
has to prove the case beyond reasonable doubt and the case
of the prosecution cannot be accepted on assumptions and
presumptions. Further it is settled law that when two views
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are possible, the view which is in favour of the accused has
to be accepted by the Court. The overall analysis of the entire
evidence on record clearly reveals that the prosecution has
miserably failed to prove the guilt of the accused beyond
reasonable doubt. Hence, the Court is of the opinion that the
accused No.1 and 2 are entitled for an order of acquittal on
the basis of concept of benefit of doubt. In the result, this
Court proceeds to answer Point No.1 to 4 in the negative."
13. The Appellate Court has not properly
appreciated the evidence on record in accordance with law
and facts.
14. On re-appreciation / re-examination /
re-consideration of the entire evidence on record, I do not
find any irregularity/illegality in the judgment of acquittal
passed by the Trial Court. Accordingly, the revision
petitioner has made out a case that the Judgment of
Conviction and order on sentence passed by the Appellate
Court is illegal and not sustainable under law. Hence, I
answer point No.1 in affirmative.
Regarding point No.2:
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15. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. Criminal revision petition is allowed.
ii. Judgment of acquittal dated 22.06.2015 passed
in C.C.No.693/2012 by the Court of the Prl.Civil
Judge & JMFC, Chikkanayakanahalli is
confirmed.
iii. Judgment dated 04.04.2017 passed in
Crl.Appeal No.10030/2015 by the Court of the V
Additional District and Sessions Judge, Tiputur
is set aside.
iv. Revision petitioner/accused Nos.1 to 2 are
acquitted for the offence punishable under
Section 448, 504,323 and 506 read with Section
34 of Indian Penal Code.
v. If any fine amount is paid by the accused, the
same shall be paid to them in accordance with
law.
vi. Registry is directed to send copy of this order
along with records to the concerned Courts.
Sd/-
JUDGE
SSD
