Karnataka High Court

Shashi @Shashikanth vs The State Of Karnataka on 7 May, 2024

                              -1-
                                    CRL.RP No. 717 of 2017


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU
         DATED THIS THE 07TH DAY OF MAY, 2024
                         BEFORE
          THE HON'BLE MR. JUSTICE S RACHAIAH
      CRIMINAL REVISION PETITION NO. 717 OF 2017
BETWEEN:
1. SHASHI @ SHASHIKANTH
   S/O MUTHAPPA
   AGE: 37 YEARS
   R/O MUTHAPPA COMPOUND
   RAMASHAKTHI MISSION
   PRASHANTH CLINIC ROAD
   SHAKTHINAGAR, MANGALORE - 575 016.

2.    NAVEEN SHETTIGAR
      S/O LATE NARAYANA SHETTIGAR
      AGED ABOUT 49 YEARS
      R/O PRABHAKAR COMPOUND
      NEAR KAVOOR KATTE, KAVOOR
      MANGALORE - 575 015

      (BOTH ARE NOW IN JUDICIAL CUSTODY)
                                              ...PETITIONERS

(BY SRI. P.B.RAJU A/W SRI R B DESHPANDE, ADVOCATES)

AND:
   THE STATE OF KARNATAKA
   SUB INSPECTOR OF POLICE
   NORTH POLICE STATION
   MANGALORE, D.K - 575 001.

      (REPRESENTED BY STATE PUBLIC PROSECUTOR,
      HIGH COURT BUILDINGS, BENGALURU - 560 001)
                                          ...RESPONDENT

(BY SRI. RAHUL RAI K, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE IN C.C.NO.3386/2008 DATED 16-
10-2014 PASSED BY THE JMFC (II COURT) MANGALORE AND
                                 -2-
                                      CRL.RP No. 717 of 2017


THE JUDGMENT AND ORDER DATED 02-02-2017 PASSED BY
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.
MANGALORE IN CRL.A.NO.257/2014 AND ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 08.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:


                             ORDER

1. The petitioners are the accused Nos.1 and 4 before the

Trial Court. They have been convicted for the offences under

Sections 384, 506, 511 r/w 34 of Indian Penal Code (for short

'IPC').

Brief facts of the case

2. The complainant is a lawyer by profession. He is

having office at K.S.Rao Road at Mangaluru. It is stated in the

complaint that when he was in his office, four unknown persons

trespassed into his office and threatened him to make payment

of Rs.500/- as hafta by stating that they are the members of

rowdy gang namely Ballalbagh. By that time, CW.6 visited the

office, then, the unknown persons went away from the office.

Again on the following day, around about 7.00 p.m., the

accused went to the office of the complainant to ask hafta

amount, the complainant closed the door and made them to go

away.

3. It is further stated in the complaint that the accused

stated to have threatened the complainant with dire

consequences and went away from the spot. Therefore, the

complainant lodged a complaint to the jurisdictional police.

Upon the complaint of the complainant, the jurisdictional police

have registered a case in Crime No.141/2008 against the

accused for the above said offences and started investigation.

After completing the investigation, submitted the charge sheet.

4. To prove the case of the prosecution, the

prosecution examined 6 witness as PWs.1 to 6 and got marked

three documents as Exs.P1 to P3.

5. The Trial Court after appreciating the oral and

documentary evidence, convicted the accused Nos.1 and 4 for

the offences under Sections 384, 506, 511 r/w 34 of IPC and

sentenced accused Nos.1 and 4 to undergo simple

imprisonment for six months with fine of Rs.1,000/- each for

the offences punishable under Sections 384/511 of IPC.

Accused Nos.1 and 4 were sentenced to pay a fine of

Rs.2,000/- each for the offence punishable under Section 506

r/w 34 of IPC. On appeal being filed, the Appellate Court

dismissed the appeal by confirming the judgment of conviction

and order of sentence passed by the Trial Court. Hence this

revision petition.

6. Heard Sri R B Deshpande, learned counsel for the

petitioner and Sri Rahul Rai K, learned High Court Government

Pleader for the respondent.

7. It is the submission of the learned counsel for the

petitioner that the concurrent findings recorded by the Courts

below are against the evidence on record. The Trial Court and

the Appellate Court failed to appreciate the evidence of

interested witnesses properly and recorded the conviction

which is required to be set aside.

8. It is further submitted that the evidence of PW.1

has been corroborated by the evidence of PWs.2 and 3 who are

none other than the colleagues of PW.1, therefore, they are

termed as interested witnesses. In fact, the defence of the

accused was not considered by the Trial Court properly. The

averments of the complaint discloses that three persons were

present as on the date of alleged incident, however, case has

been registered against four persons. The complainant

admitted in his evidence that he was not aware about the

identity of the accused persons prior to the incident. However,

he learnt the identity through his typist namely Smt.Sandya

Shetty. The said typist neither cited as a charge sheet witness

nor examined to substantiate the said contention. Therefore,

the evidence of PWs.1, 2 and 3 ought not have been considered

as gospel truth to record the conviction.

9. It is further submitted that the Trial Court and the

Appellate Court recorded the conviction based on the evidence

of the interested witnesses without any corroboration which is

erroneous and not proper and therefore, the concurrent

findings are required to be set aside. Making such submission,

the learned counsel for the petitioner prays to allow the

petition.

10. Per contra, the learned HCGP for the respondent -

State vehemently justified the judgments of the Courts below

and submitted that the findings of the Trial Court in recording

the conviction is proper for the reason that the prosecution

examined three witnesses who are the eye witnesses to the

incident. They have been extensively examined by the defence,

however, nothing has been elicited to discredit their evidence.

11. It is further submitted that of course PW.1 admitted

in his evidence that he was not aware about the identity of the

accused prior to the incident, however, it is an admitted fact

that the accused persons are residents of nearby areas and one

of the accused has been identified by his typist and therefore,

complaint has been lodged against the said person and others.

The findings of the Trial Court and the Appellate Court in

recording the conviction based on the evidence of eyewitnesses

are appropriate and therefore, interference with the said

findings may not be proper. Hence, the petition deserves to be

dismissed. Making such submission the learned HCGP prays to

dismiss the petition.

12. After having heard the learned counsel for the

respective parties and also perused the findings of the Trial

Court in recording the conviction, it is relevant to refer to the

evidence of all the witnesses in brief to conclude as to whether

any error committed by the Trial Court and the Appellate Court

in appreciating the evidence or any error committed by the

Courts below in recording the conviction.

13. PW.1 being a complainant stated in his evidence that

when he was in his office on 05.06.2008, three persons

trespassed in his office and demanded to pay amount of

Rs.500/-. When PW.1 asked the reason as to why he was asked

to pay Rs.500/-, they told him that they were the gangsters of

Ballalbagh and it is a hafta to be paid for them. However, one

of the advocate entered his office to seek vote for the election

which was being held for the Advocate's Association. PW.1

further stated that the persons went away on that day,

however, they came back on the following day around 7.30

p.m., one of the accused tried to enter his office and by that

time, PW.1 locked his chamber and not allowed the accused to

come inside. Then, the accused threatened him with dire

consequences and went away from the spot. On seeing his

evidence, it appears that PW.1 did not mention the presence of

other two witnesses in his office. Further, PW.1 admitted in his

evidence that he was not aware about the identity of the

person who trespassed his office and demanded extortion

money.

14. Further, in the cross-examination, PW.1 admitted

that he cannot say who had entered his office to demand

extortion money. When the evidence of PW.1 is ambiguity in

respect of identity of the accused, conviction in respect of

extortion or attempt to extortion or criminal intimidation should

not to have been recorded. In fact, as per the evidence of PW.1

only one person tried to enter his chamber and demanded the

hafta, however, the Investigating Officer registered a case

against four accused. The over-act of each accused is not

forthcoming. Unless, a specific allegation is made against each

accused, conviction ought not to have been recorded against all

the accused.

15. PW.2 was working as colleague of PW.1. According

to him, there were four members entered the chamber of PW.1.

Similarly, the evidence of PW.3 also discloses that four persons

entered into the chamber of PW.1. However, PW.1 in his

evidence has admitted that three persons were entered the

office and one person entered the chamber of PW.1 and

demanded Rs.500/-. When PW.1 himself stated that three

persons had come, the evidence of PW.2 and 3 in respect of

four accused entered the office creates doubt regarding their

presence in the office.

16. The Trial Court and the Appellate Court recorded

the conviction even though the evidence of PW.1 was not

specific as to who had entered into the chamber and demanded

hafta amount of Rs.500/- which is not proper and appropriate.

When there is no specific evidence regarding overt-act of the

accused, conviction should not be recorded on the basis of

assumption and presumption. It is needless to say that in

criminal jurisprudence, the prosecution has to prove the case

beyond reasonable doubt and allegation has to be proved

through proper evidence.

17. On reading of the findings of the Trial Court and the

Appellate Court, I am of the considered opinion that the Courts

below have committed error in recording the conviction even

though the overt-act of each accused has not forthcoming.

Therefore, the findings of the Trial Court and the Appellate

Court are required to be set aside.

18. In the light of the observation made above, I

proceed to pass the following:

ORDER

i) The Criminal Revision Petition is allowed.

ii) The judgment of conviction and order of sentence

dated 16.10.2014 in CC No.3386/2008 on the file of

the JMFC (II Court) Mangaluru and its confirmation

order dated 02.02.2017 in Crl. A No.257/2014 on

the file of the I Additional and Sessions Judge, D.K.,

Mangaluru are hereby set aside.