Karnataka High Court
Jaki @ Jakir Hussian @ Taliban @ Hassan ... vs The State on 4 November, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 1054 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1054 OF 2016
BETWEEN:
JAKI @ JAKIR HUSSIAN @ TALIBAN @ HASSAN JAKIR
S/O LATE HAJI ALMED SAYIGABBA
AGED ABOUT 42 YEARS
R/A S M MANZIL,
NEAR MOIDEEN MASJID
JOKATTE
MANGALORE TALUK.
...PETITIONER
(BY SRI. MUZAFFAR AHMED, ADVOCATE)
AND:
THE STATE BY
MANGALORE NORTH POLICE
REP: BY THE STATE
PUBLIC PROSECUTOR
Digitally signed
BENGALURU - 01.
by LEELAVATHI
SR ...RESPONDENT
Location: HIGH (BY SMT. WAHEEDA M.M., HCGP)
COURT OF THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
KARNATAKA
SET ASIDE THE JUDGMENT DATED 14.12.2012 PASSED BY THE
J.M.F.C.-(II COURT), MANGALORE IN C.C.NO.5670/2005 AND
THE SAME WAS CONFIRMED DATED 19.07.2016 PASSED BY
THE IV ADDL. DIST. AND S.J., MANGALORE, D.K. IN
CRL.A.NO.14/2013 FOR THE OFFENCE P/U/S 332 AND 353 OF
IPC BY ALLOWING THE R.P.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1054 of 2016
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri. Muzaffar Ahmed, learned counsel for the
petitioner and Smt. Waheeda M.M., learned High Court
Government Pleader for the respondent.
2. The accused, who suffered an order of
conviction in C.C.No.5670/2005 for the offences
punishable under Sections 332 and 353 of the Indian Penal
Code and was ordered to undergo simple imprisonment for
a period of six months for the offence punishable under
Section 332 of IPC and sentenced to pay a fine of
Rs.2,000/- with sentence of simple imprisonment for a
period of 15 days and for the offence punishable under
Section 353 IPC, he was sentenced to pay a fine of
Rs.3,000/- with default sentence of simple imprisonment
for a period of one month, confirmed in Crl.A.No.14/2013,
has preferred this review petition.
3. The facts in nut shell for disposal of this review
petition are as under:
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A complaint came to be lodged by the Head
Constable of Mangaluru North Police on 28.07.2005
contending that at about 11:45 a.m. at Yathimkhan road
near Jumma Masjid of Bunder, when complainant enquired
the accused, who was facing criminal proceedings in
relation to M.C.No.184/2005 about his name and address,
there was a scuffle. At that juncture, the accused said to
have uttered the words "chaddi police nimminda
yenaguthade" and assaulted the complainant with hands
and thereby voluntarily caused hurt to the complainant
and also resulting in deterring the discharging the official
duty of a government servant.
4. Based on the complaint, a case came to be
registered in Crime No.246/2005 for the offences
punishable under Sections 332 and 353 IPC. The injured
was referred to the Government Hospital.
5. After registering the case, police thoroughly
investigated the case and filed charge sheet against the
accused for the aforesaid offences.
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6. Presence of the accused was secured and after
completing necessary formalities, plea was recorded.
Accused pleaded not guilty and therefore, trial was held.
7. In order to bring home the guilt of the accused,
the prosecution in all examined six witnesses as PWs.1 to
6 comprising of Doctor, who issued the wound certificate,
injured, eye witnesses and the investigating agency. The
prosecution in all placed on record eight documentary
evidence, which were exhibited and marked as Exs.P-1 to
8 comprising of a wound certificate, complaint, spot
mahazar, FIR, sketch showing the place of incident,
identity card and copy of the police diary.
8. Detailed cross-examination of prosecution
witnesses did not yield any positive material so as to
disbelieve the version of the prosecution witnesses. More
so when there was no previous enmity/animosity between
the police personnel, who is injured in the incident and the
accused.
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9. Thereafter, the learned Trial Magistrate
recorded the accused statement as is contemplated under
Section 313 of Cr.P.C., wherein accused has denied all the
incriminatory materials and did not chose to place on
record any written submissions as is contemplated under
Section 313(4) of Cr.P.C. nor placed any defence evidence
on record.
10. Subsequent thereto, learned Trial Magistrate
heard the arguments of both parties in detail and after
considering the oral and documentary evidence placed on
record, convicted the accused for the aforesaid offences
and sentenced as referred to supra.
11. Being aggrieved by the same, accused
preferred an appeal before the First Appellate Court in
Criminal Appeal No.14/2013.
12. Learned First Appellate Court after securing the
records from the Trial Court, heard both parties in detail
and taking note of the material evidence placed on record,
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re-appreciated the same and agreed with the findings
recorded by the learned Trial Magistrate and dismissed the
appeal.
13. Learned Judge in the First Appellate Court did
not consider the accused for reduction of sentence though
urged before him.
14. Being further aggrieved by the same, the
accused has preferred the present revision petition before
this Court.
15. Sri. Muzaffar Ahmed, learned counsel for the
revision petitioner reiterating the grounds urged in the
revision petition contended that by the external
appearances of the accused, the police have accused the
present revision petitioner with the words that "he looks
like Taliban" and the scuffle started thereunder and for the
use of such words, the accused has reacted spontaneously
at the spur of the moment, which has been blown out of
proportion by the police personnel in falsely implicating
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the accused for the aforesaid offences in the case on hand,
which has not been rightly appreciated by the learned Trial
Magistrate or the learned First Appellate Judge, resulting
in miscarriage of justice and sought for allowing the
revision petition.
16. Alternatively, learned counsel for the revision
petitioner contended that in the event of this Court holding
conviction order has to be maintained, taking note of the
fact that there is no criminal antecedent of the accused
and the accused is in social service for the last 10 years in
the society and in the absence of any further criminal
cases being filed against the petitioner herein, the
sentence ordered by the Trial Magistrate and confirmed by
the First Appellate Court needs to be set aside by imposing
reasonable amount of fine.
17. Per contra, Smt. Waheeda M.M., learned High
Court Government Pleader supports the impugned
judgments by contending that PWs.2 and 3 being police
personnel, had been given the task of service of notice in
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respect of a criminal case in relation to M.C.No.184/2005.
At that juncture, when they approached the accused,
voluntarily the accused interfered with the due discharge
of the official work by PWs.2 and 3 resulting in PW.2 being
injured near the left eye as is found in Ex.P-1, wound
certificate and thereby all the ingredients required to
attract the offences punishable under Sections 332 and
353 of IPC has been successfully established by the
prosecution and thus, sought for dismissal of the revision
petition.
18. In so far as the alternate submission is
concerned, learned High Court Government Pleader
contended that if a person can abuse and assault a police
personnel in public voluntarily, which has been duly
established before the Court by placing sufficient evidence
on record, no lenience or mercy can be shown to such
persons as it would directly send a wrong message to the
society in encouraging such miscreants in future to take
law into their own hands and not respecting the police in
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the public. Therefore, she sought for dismissal of the
revision petition in toto.
19. Having heard parties in detail, this Court
perused the material on record meticulously. On such
perusal of the material on record, the following points
would arise for my consideration:
(i) Whether the prosecution has successfully
Established all ingredients punishable under
Sections 332 and 353 IPC?
(ii) Whether the impugned judgment is suffering
from legal infirmity or perversity?
(iii) Whether the sentence is excessive?
(iv) What order?
Re. Point Nos.1 and 2:
20. In the case on hand, admittedly, PWs.2 and 3
had met the accused-revision petitioner for the first time
on 28.07.2005. PWs.2 and 3 were given the task of finding
of the whereabouts of the accused in respect of a
proceedings under the provisions of Cr.P.C. initiated by the
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Taluk Executive Magistrate. At that juncture, the accused
said to have uttered the words "chaddi police nimminda
yenaguthade". The accused also voluntarily caused hurt
near the left eye of PW.2. As such, PW.2 went back to the
Mangaluru North Police Station and lodged a complaint
with regard to the incident. A case came to be registered
in Crime No.246/2005 and the injured was referred to the
Government hospital and he was treated by PW.1, Doctor,
who issued Ex.P-1, wound certificate.
21. The contents of Ex.P-1 was sought to be
assailed by cross-examining PW.1 in detail.
22. PW.1 in his cross-examination, has admitted
that if someone falls on the ground, the injury noted by
him in Ex.P-1 could be caused, but he has also answered
that the injured has stated that the accused has assaulted
him with his hands.
23. Admittedly, PW.1 is a Government Doctor, who
did not nurture any enmity as against the accused nor
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extra affinity towards the complainant. Why would such a
person would give a false wound certificate only with an
intention to falsely implicate the person is the question
which remains unanswered on behalf of the accused. The
oral testimony of PWs.2 and 3 coupled with the contents of
Ex.P-1 and taking note of the fact that there is no loss of
time in lodging the complaint and taking note of the
further fact that soon after the incident, PW.2 had rushed
to the police station and lodged the complaint, is rightly
appreciated by the learned Trial Magistrate while finding
truth in the case of the prosecution and with sound and
proper reasons, convicted the accused for the offences
punishable under Sections 332 and 353 of IPC.
24. Learned Judge in the First Appellate Court re-
appreciated the material evidence on record and the
evidence on record in the light of the grounds urged on
behalf of the accused.
25. Assuming that the version stated before this
Court by the learned counsel for the revision petitioner is
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to be accepted and accused has acted as a normal prudent
person in the set of circumstances and it could be turned
as right to private defence, in order to invoke the right to
private defence, it is incumbent on the part of the accused
to accept the incident at the first place, which has been
not forth coming in the records.
26. The accused cannot deny the incident and then
still raise a question of private defence. Therefore, the
grounds urged on behalf of the revision petitioner that the
incident as is contended by the prosecution has not at all
taken place at one breath and cannot urge the Right to
Private Defence in the next breath.
27. Under such circumstances, conviction of the
accused for the aforesaid offences is just and proper.
Moreover, this Court cannot re-visit into the factual
aspects unless it is patently illegal. No such patent
illegality is pointed out either, on behalf of the revision
petitioner.
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In view of the foregoing discussion, point Nos.1 and
2 are answered in the affirmative and negative,
respectively.
Re. Point No.3:
28. Admittedly, the accused is a first time offender.
In the order of passing the sentence, no reason is
forthcoming as to why simple imprisonment of 6 months is
ordered for the offence punishable under Section 332 IPC.
All that the Trial Magistrate has narrated while passing the
sentence is the respective contentions of the parties.
What is the reason for imposing the imprisonment for a
period of six months is totally absent in the order
regarding sentence.
29. It is well settled principles of law and requires
no emphasis that a role of a judge while passing the order
of conviction is altogether a different role when it comes to
the question of passing appropriate sentence in a given
case.
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30. The learned Trial Magistrate failed to discharge
such a role while passing an order of sentence in the case
on hand.
31. The learned Judge in the First Appellate Court
did not discuss the said aspect of the matter and missed
the same in toto while upholding the order of conviction
and sentence.
32. Therefore, a case is made out by the revision
petitioner for this Court in this revisional jurisdiction to re-
visit into the question of passing appropriate sentence.
33. Learned counsel for the revision petitioner
urged before this Court that admittedly accused did not
have any criminal antecedents. Learned High Court
Government Pleader is unable to point out any such
criminal antecedents of the accused directing the
Probation Officer to get the report at this distance of time
in respect of the criminal antecedents taking note of the
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fact that the incident is of the year 2005 would be a futile
exercise.
34. Admittedly, after registration of the present
case, no other criminal cases are filed against the
petitioner either. Further, the learned counsel for the
revision petitioner contended that the accused is doing
social service for more than 10 years as he is of digging
graves at the graveyard and eaking out his livelihood.
35. Taking note of the above aspects of the matter,
directing the accused to undergo simple imprisonment for
a day by enhancing the fine amount by Rs.10,000/- would
meet the ends of justice. Accordingly, Point No.3 is
answered partly in the affirmative.
Re. Point No.4:
36. In view of the finding of this Court on point
Nos.1 to 3 as above, the following orders is passed:
(i) The Criminal Revision Petition is allowed-in-
part.
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(ii) While maintaining the conviction of the
accused for the aforesaid offences
punishable under Sections 332 and 353
IPC, the accused is ordered to undergo
simple imprisonment for a day till raising of
the Court by enhancing fine amount of
Rs.10,000/-, in all a sum of Rs.15,000/-
(Rs.5,000/- imposed by the learned Trial
Magistrate for the offence punishable under
Sections 332 and 353 IPC and Rs.10,000/-
enhanced by this Court by this order).
(iii) The balance fine amount is ordered to be
paid on or before 30.11.2024, failing which
the accused shall undergo simple
imprisonment for a period of three months.
Sd/-
(V SRISHANANDA)
JUDGE
