Karnataka High Court
Harry Roland S/O Simon Alexander D Cruz vs State Of Karnataka on 18 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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NC: 2025:KHC-D:3237
CRL.RP No. 100182 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100182 OF 2023
[397(CR.PC)/438(BNSS)]
BETWEEN:
HARRY ROLAND,
S/O. SIMON ALEXANDER D'CRUZ,
AGE: 47 YEARS,
OCC. PRIVATE SERVICE,
R/O. NO. 4, MANJUNATH NILAYA,
SAI NAGAR, UNKAL,
HUBBALLI-580031.
... PETITIONER
(BY SRI MAHESH WODEYAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed
by
MALLIKARJUN
BY VIDYANAGAR POLICE STATION,
MALLIKARJUN RUDRAYYA
RUDRAYYA
KALMATH
KALMATH
Date:
2025.02.25
REPRESENTED BY ADDITIONAL STATE
14:30:37 +0530
PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
DHARWAD.
2. SHRI PRAMOD @ PARMESHWAR
S/O. NINGAPPA BASAPUR,
AGE: 35 YEARS,
OCC. PRIVATE WORK,
R/O. ACHECHAVVAN COLONY,
SAI NAGAR, HUBBALLI,
NOW R/O. KOKATHE ONI,
HUBBALLI-580020.
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CRL.RP No. 100182 of 2023
3. SHRI KALLANAGOUDA
S/O. SHANKAR GOUDA KABBUR,
AGE: 59 YEARS,
OCC. GOVERNMENT SERVICE,
R/O. H.NO.31/12, PARASAWADI,
2ND STAGE, KESHWAPUR,
HUBBALLI-580023.
... RESPONDENTS
(BY SRI JAIRAM SIDDI, HCGP FOR R1;
SRI IRANAGOUDA K.KABBUR, ADVOCATE FOR R3;
R2-NOTICE SERVED- UNREPRESENTED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.PC., SEEKING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 01.12.2022 PASSED BY THE I ADDL. DIST.
AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN
CRIMINAL APPEAL NO. 19/2021 AND ALSO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 02.12.2020 PASSED
BY THE LEARNED JMFC, II COURT HUBBALLI IN CC NO. 233/2014
AND CONSEQUENTLY CONVICT THE RESPONDENTS NO.2 AND
3/ACCUSED NO.1 AND 2 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 504, 506(2), 448, 427, 109 READ WITH UNDER SECTION
34 OF IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Challenging judgment/order dated 01.12.2022 passed by
I Addl. District and Sessions Judge, Dharwad (Sitting at
Hubballi) ('Appellate Court', for short) in Crl.A.no.19/2021
and judgment/order dated 02.12.2020 passed by J.M.F.C-II,
Hubballi ('Trial Court', for short) in C.C.no.233/2014, this
revision petition is filed against concurrent findings.
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2. Sri Mahesh Wodeyar, learned counsel for petitioner
submitted prosecution case was based on complaint dated
10.12.2012 filed by Harry Roland D'cruz (complainant) stating
that he was residing with Harsh Naidu in building on plot no.4
in Sy.no.202, Sai Nagar, Unkal, Hubballi, belonging to
Nandkumar Naidu. It was stated said plot had a compound wall
around it and that complainant was contractor for construction
therein. When Nandkumar went to Shirdi, respondent no.3
(accused no.2) had property abutting to Nandkumar property
and had quarrel between them, however same was sorted out.
Complainant was aware of quarrel between Nandkumar and
accused no.2 with regard to plot and that same was resolved.
At about 5:00 p.m., on 10.12.2012, when complainant was
busy in construction work with laborers i.e. Dadapeer, Gulab
and four others, Pramod, a relative of accused no.2 came there
enquiring about Nandkumar in heated language and by picking
up iron rod lying nearby, threatened complainant and laborers
that he would finish them, if they did not stop construction
work. Immediately, complainant stopped work, sent away
laborers and informed Nandkumar. Thereafter, Harsh Naidu
informed complainant that left side compound wall was being
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brought down by accused no.1. When complainant reached
spot at around 7:30 p.m., accused no.1 ran away from there.
Therefore, he filed complaint alleging that accused no.1 and 2
frequently quarreled with Nandkumar over plot and on
instigation of accused no.2, accused no.1 had demolished
portion of compound wall thereby causing monetary loss to
extent of Rs.1,00,000/-. Based on complaint, Crime
no.162/2012 was registered by Vidyanagar Police Station for
offences punishable under Sections 504, 506(2), 448, 427, 109
read with 34 of Indian Penal Code, 1860 ('IPC' for short).
3. After investigation, charge-sheet was filed on
07.04.2014, cognizance taken and summons issued to accused.
On receipt, accused no.1 and 2 appeared, denied charges and
chose to be tried.
4. In order to substantiate charges, prosecution
examined 12 witnesses as PW.1 to PW.12 and got marked
Exs.P1 to Ex.P21. Thereafter, accused were appraised of
incriminating material against them and their statements
recorded under Section 313 of CrPC. They denied all material
as false. Though they did not lead evidence, they got marked
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letter issued by Asst. Commissioner, HDMC, as Ex.D1 by
confronting it to prosecution witness.
5. On consideration, trial Court acquitted accused of
all offences. Aggrieved, complainant filed Crl.A.no.19/2021.
Even same was dismissed on 01.12.2022. Aggrieved thereby,
revision was filed.
6. It was submitted both Courts failed to appreciate
testimony of PW1, PW3, PW6, PW9, PW10, PW11 and PW12
who supported prosecution case. They failed to notice that
there were no omissions, improvements or embellishment in
their testimony and that same were reliable, creditworthy and
free from suspicion. Thus appreciation of evidence was not in
accordance with law.
7. It was submitted, complainant examined himself as
PW-1 and deposed in terms of complaint. There is corroboration
of incident as per Ex.P2 - Seizure Mahazar conducted at spot
with PW-2 and PW-4 as witnesses. Though they turned hostile,
as per decision of Hon'ble Supreme Court, there would be no
impediment for accepting deposition of Investigating Officer for
proving panchanama. Prosecution also examined owner's son
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as PW-3, who was eye-witness, stated about demolition of
compound wall.
8. Though prosecution had examined an independent
witness - Siddanagouda as PW-7, during cross examination, he
admitted that he was not aware about incident and turned
hostile. It was submitted, Investigating Officers were examined
as PWs-11 and 12. It was submitted, both Courts failed to
assign proper and cogent reasons and that reasons assigned
and conclusion arrived were not proper and correct.
9. While, Sri Jairam Siddi, learned HCGP for
respondent no.1 - State supported petitioner, respondent no.2
remained served unrepresented. But, Sri Iranagouda K.
Kabbur, learned counsel for respondent no.3, vehemently
opposed petition and contended that both Courts had examined
material on record in detail and on due appreciation and after
assigning cogent reasons acquitted accused. Therefore, there
was no scope for interference.
10. Heard learned counsel and perused impugned
judgment and order.
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11. From above, point that arises for consideration is:
"Whether impugned judgment/order
passed by Trial/Appellate Courts call
for interference?"
12. This revision petition is filed under Section 397 read
with Section 401 (1) of CrPC. On Hon'ble Supreme Court in
case of Amit Kapoor v. Ramesh Chander, reported in
(2012) 9 SCC 460 has held scope for interference in revision
would be extremely limited normally only to questions of law
and not finding of fact.
13. Main ground on which revision is filed is that there
is no proper appreciation of material on record by both Courts
and that reasons assigned for acquittal are not justified.
14. In order to appreciate said contention, a brief
reference to prosecution case would be necessary. Accused are
alleged to have committed offences of intentional insult with
intent to provoke breach of peace under Section 504; criminal
intimidation under Section 506; house trespass under Section
448; Mischief under Section 506; abetment under Section 109
with common intention by all accused under Section 34 of IPC.
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15. To substantiate same, complainant was examined
as PW-1, who though deposed in terms of complaint, but
omitted to state about threatening by accused no.1. He also did
not state that accused no.1 had come to spot at instance of
accused no.2, apart from admitting that he was not issued with
any document appointing him as Manager. Further, during
investigation, JCB alleged to have been used for demolition of
compound was seized under Ex.P2 - Seizure Mahazar in
presence of CW-4 and CW5 pancha witnesses. But when
examined as PWs-2 and 4, they turned hostile and did not
support prosecution.
16. Harsh - eye-witness was examined as PW-3. But,
he stated was unaware of description of property or who filed
complaint. He failed to remember even minimum particulars of
JCB, used for demolition of compound wall. There was also no
explanation, why he did not file complaint, despite being son of
owner of property. His statement that Investigating Officer did
not record his statement render his deposition unreliable.
17. Ex.P5 was spot mahazar drawn at spot of incident.
It was drawn in presence of CWs-2 and 3. But only CW-2 was
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examined as PW-5, who admitted in cross-examination that he
was unaware about contents of Ex.P-5 and turned hostile.
18. Nandkumar - owner of plot was examined as PW-6.
He admitted that plot on which compound was constructed did
not belong to him, but to his daughter - Lekha. He also
admitted existence of dispute about encroachment and
O.S.no.154/2013, filed by accused no.2 against him which was
pending and that Corporation had issued notice of
encroachment to him. Further, only independent witness
examined as PW-7 admitted that he was unaware about
incident.
19. Dadapeer, who was one of laborers on date of
incident and eye-witness to incident of threat/abuse, examined
as PW-8 turned hostile. Likewise, Asst.Engineer of PWD
examined as PW-9 admitted that he did not visit spot or made
enquiry. Further, DD of HDMC examined as PW-10, stated that
he was unaware of any notice issued with regard to property.
20. Further, PW-11, who registered FIR stated that
complaint was not accompanied with any documents. Though
he stated compound was constructed by complainant, no
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documents were collected. PW-12, Investigating Officer, who
completed investigation and filed charge-sheet admitted that
he had not recorded statement of registered owner of property.
21. Though prosecution had cited as many as 20
witnesses but they had examined only 12 witnesses, other
witnesses CW-3, whose statement was recorded as Mahazar
witnesses was not entered into witness box. Even CWs-7, 8, 9
and 11 were stated to be bar benders and their statement were
recorded as eye-witness to incident and who were working in
Nandkumar's building were not examined. Prosecution also did
not examine CW-15, driver JCB and who according to
prosecution had demolished compound wall was also not
examined, despite seizure of his vehicle. Besides, it is elicited
that O.S.no.154/2013 filed by accused no.2 against
Nandkumar. Therefore, continuation of these proceedings
would also appear to be to counter civil suit.
22. While passing impugned judgment and orders, both
Courts have duly appreciated above factors while acquitting
accused. For aforesaid reasons, point for consideration requires
to be answered in negative.
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23. Hence, following:
ORDER
Criminal Revision Petition is dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
CLK
CT:PA
