Karnataka High Court
Tabrej vs State Of Karnataka on 21 February, 2025
-1-
NC: 2025:KHC-D:4138
CRL.RP No. 100052 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100052 OF 2018
(397(Cr.PC)/438(BNSS))
BETWEEN:
1. TABREJ
S/O ABDUL RAHIM SHAIKH
AGED 39 YEARS
OCC. BUSINESS
R/O NEHARU NAGAR
SIRSI (U.K)
2. GANESH
S/O VASUDEV MADGAOVKAR
AGE:34 YEARS
OCC. COOLIE
R/O NEHARU NAGAR
SIRSI (U.K.)
...PETITIONERS
Digitally signed
by SHAKAMBARI
Location: HIGH (BY SRI. VISHWANATH HEGDE, ADVOCATE)
COURT OF
KARNATAKA
AND:
STATE OF KARNATAKA
REP. BY PSI NEW MARKET
YARD POLICE STATION, SIRSI
REP. THROUGH HCGP
HIGH COURT OF KARNATAKA
DHARWAD BENCH
...RESPONDENT
(BY SMT. MALA BHUTE, AGA)
-2-
NC: 2025:KHC-D:4138
CRL.RP No. 100052 of 2018
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS AND TO SET ASIDE THE JUDGMENT DATED
04.07.2011 PASSED BY I ADDL. CIVIL JUDGE IN
C.C.NO.351/2004 AND JUDGMENT DATED 30.11.2017 PASSED
BY I ADDL. DISTRICT AND SESSIONS JUDGE U.K.KARWAR
SITTING AT SIRSI IN CRL.APPEAL.NO.104/2011 FOR
OFFENCES PUNISHABLE U/SECTION 323 AND 506 OF IPC AND
CONSEQUENTLY ACQUIT THE ACCUSED.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D.
HUDDAR
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)
This revision petition is directed against the
judgment of conviction and order of sentence dated
04.07.2011 passed in C.C.No.351/2004 by the I Addl.Civil
Judge, Sirsi confirmed in Crl.A.No.104/2011 vide judgment
dated 30.11.2017 by the I Addl.District and Sessions
Judge, U.K., Karwar sitting at Sirsi.
NC: 2025:KHC-D:4138
2. Parties to this revision petition are referred to
as per their rank before the trial Court.
3. It is the case of the petitioner/accused that,
accused Nos.1 to 4 are charge sheeted by the PSI, New
Market Police Station, Sirsi for the offences punishable
under Sections 341, 324, 307, 504, 506 r/w.34 of IPC.
The records of this case reveal that during the pendency of
the criminal case before the JMFC, Sirsi, accused no.4 died
and the case against him stood abated. Accused nos. 1 to
3 faced trial.
4. According to the case of the prosecution, on
15.9.2003 at about 4.30 p.m. all the accused in
furtherance of their common intention to commit the
offence of assault, have committed criminal trespassed
into the chamber of the complainant in Suvarna Co-
operative Society, Sirsi, wrongfully restrained the
complainant from moving from his chamber, accused no.1
assaulted the complainant with steel bracelet and accused
NC: 2025:KHC-D:4138
no.2 assaulted the complainant with hands and thereafter
torn the banian, shirt of the complainant and threatened
that if he does not cancel the suretyship of Amanulla Khan
and Abdul Sattar Honnavar and return the gold
ornaments pledged in the Society, they will break his limbs
and do away the life of the complainant and thereafter,
ran away from the said place.
5. The Investigation Officer, on completion of the
investigation filed the charge sheet against the accused for
the aforesaid offences. The Jurisdictional Magistrate took
cognizance of the offences. Copies of the Police papers
were furnished to the accused as contemplated under
Section 207 of Cr.PC. Thereafter, the charges against the
accused for the aforesaid offences were read over to them
in the language known to them and they pleaded not
guilty, claimed to be tried.
6. To prove the guilt of the accused, prosecution in
all examined 14 witnesses from PWs.1 to PW.14 and got
NC: 2025:KHC-D:4138
marked Exs.P1 to P11 and closed prosecution evidence.
On behalf of defence, no witness was examined. MO Nos.1
to 4 were marked.
7. The learned trial Court on hearing the
arguments and on assessment of the evidence found the
accused guilty of committing the offences under Sections
323 and 506 of IPC and sentenced them as under:
"Accused Nos.1 and 2 are sentenced
to pay fine of Rs.1000/- (One thousand
only) each for the offence punishable
U/sec.323 of IPC. In default of payment
of fine, they shall undergo simple
imprisonment for a period of three
months each.
Further, Accused Nos.1 and 2 are
sentenced to pay fine of Rs.10,000/-
(Ten thousand only) each for the offence
punishable under Section 506 of IPC. In
default of payment of fine, they shall
undergo Simple Imprisonment for a
period of Six months each.
NC: 2025:KHC-D:4138
Further, Acting under section 357 Cr.P.C,
a sum of Rs.10,000/- (Ten thousand
only) out of fine amount, b paid to the
complainant (PW.1) as compensation.
Material objects No.1 to 4 are ordered to
be destroyed after appeal period as they
are worthless.
Supply free copy of judgment to the
accused no.1 and 2"
8. This judgment of conviction and order of
sentence was challenged by accused nos.1 and 2 before
the I Additional District and Sessions Judge, U.K. Karwar
sitting at Sirsi by preferring a Crl.A.No.104/2011. The
learned lower appellate Court on hearing the arguments
and on evaluation of the evidence confirmed the said
judgment and order of sentence by passing judgment
dated 30.11.2017. This is how now accused nos. 1 and 2
are before this Court challenging the judgments of the
Courts below.
9. The learned counsel for the petitioner/accused,
Sri. Vishwanath Hegde submits that, none of the witnesses
NC: 2025:KHC-D:4138
have supported the case of the prosecution. The eye
witnesses so examined in the shape of PWs.5, 7 and 8
though speak with regard to witnessing of said incident
but, in the cross-examination they have given a go bye.
But, believing the evidence of these witnesses, the trial
Court has convicted the accused and sentenced them.
Even there are material contradictions in the evidence of
complainant. The complainant, out of animosity foisted a
false case against the accused persons. He would further
submit that, the prosecution has not proved its case
beyond all reasonable doubt. Therefore, he would submit
that, the witnesses so examined on behalf of the
prosecution were sought to be cross-examined and in their
cross-examination, they have given different version.
There are material contradictions, omissions in the
evidence of these witnesses. There is no proper
appreciation of evidence by the Court below in coming to
such conclusion. Therefore, as the ingredients of offences
under Sections 323, 506 of IPC are missing, it is prayed to
NC: 2025:KHC-D:4138
allow the revision petition and set aside the impugned
judgments.
10. As against this submission, the learned
Smt. Mala Bhute, Additional Government Advocate
submits that, the learned trial Court as well as the first
appellate Court have properly assessed the evidence of
the witnesses such as PW.5, 7 and 8. She would submit
that, though they have given some different version in the
cross-examination, the evidence of the complainant being
vital plays an important role. Therefore, she would submit
that, no interference is required into the impugned
judgments. According to her submission, both the Courts
have properly appreciated the evidence and have rightly
concluded that, the said incident has taken place, PW.1
was assaulted by the accused. She justifies the reasons
and finding assigned by the learned trial Court, as well as
first Appellate Court in passing the impugned judgments.
Hence, she prays to dismiss the revision petition.
NC: 2025:KHC-D:4138
11. I have given my anxious consideration to the
arguments of both the side and perused the record.
12. In view of rival submissions of both the side,
the points that would arise for my consideration are:
(i) Whether the learned trial Court as well as
the first appellate Court have committed
any error in convicting and sentencing the
accused for the offences under Sections
323 and 506?
(ii) If so, whether the impugned judgment
and award require interference by this
Court?
13. My findings on the above questions are in the
affirmative for the following reasons:
It is the case of the petitioners that, assault on the
person of the complainant by the accused nos. 1 to 3 is
not admitted. Accused no.3 is no more and was acquitted
by the learned trial Court. It is pointed out by the
- 10 -
NC: 2025:KHC-D:4138
prosecution that, the accused in furtherance of their
common intention to commit the offence of assault,
wrongfully trespassed into the chamber of the complainant
in Suvarna Co-op. Society, Sirsi, wrongfully restrained him
from moving from his chamber, gave life threat to him and
assaulted on his person. To ascertain the veracity of such
allegations one has to read the evidence placed on record
by the prosecution.
14. PW.1 complainant-victim as per the case of the
prosecution has come before the trial Court and speaks in
line with the contents of the complainant. It is stated that,
he has been working for the last 23 years in Suvarna Co-
operative Society, Sirsi as General Manager. The said Bank
is situated near Devikere Cross. The building where the
said Bank is situated belongs to one S.S.Bhat. He states,
that on 15.9.2003 at about 4.30 p.m. when he was in his
Chambers, Tabrej and Ganesh (accused nos. 1 and 2)
came tried to assault him and spoke to him in filthy
language. They gave threat to cancel the surety for loan
- 11 -
NC: 2025:KHC-D:4138
availed by one Atheshmulla Amanulla Khan to which loan
one Amnulla and Abdul Sattar Honnavar have given
surety. The same be cancelled and forced return the gold
ornaments kept as surety, otherwise they will break his
limbs. He states, accused Tabrej forcefully caught hold his
neck and by using the steel bracelet assaulted him on his
forehead. Accused Ganesh assaulted him with his hands.
Because of this, he sustained injuries on his left shoulder
and there were assault marks on the left cheek and left
thigh. His shirt and banian were torn. Tabrej hit him with
the boot. He further states that, later, they went to the
strong room which is situated next to his chamber and
tried to snatch away the gold ornaments. When he and his
colleagues joined, they took the complainant to the
downstairs where two persons by name Mahesh and Abed
were standing and they all went away in a autorikshaw.
After this incident, he removed his torn shirt and banian
and wore another shirt after getting it from home. Then
went to the police station to file complaint. Further he
- 12 -
NC: 2025:KHC-D:4138
stated that, he went to Government Hospital and took
treatment.
15. He has been cross-examined at length. He is
specific in his cross-examination that, he had not produced
any document to show that, the said borrower Atheesh
Mullah was defaulter in repayment of loan. According to
him, when the incident took place, PW.8 was present in his
chamber. His chamber is full of glass walls. He admits that
if anybody or the customer speaks inside the chamber, the
said talks could not be heard by the outsiders. He cannot
say who brought the banian and shirt and gave to him.
When he went to the police station at 5. to 5.15 p.m. at
that time, accused nos. 1 and 2 were there in the police
station. It is the defence of the accused that, there was
refusal to return the gold ornaments by the complainant,
therefore, they went to the police station to lodge a
complaint. That means, when complainant went to the
police station, these accused nos. 1 and 2 were already
there in the police station. In the cross-examination at
- 13 -
NC: 2025:KHC-D:4138
page no.7, it is categorically stated by PW.1 that, though
there was assurance by Abdul Sattar to deposit the loan
amount and take away his gold ornaments, for this
assurance of depositing the loan amount, this PW.1 had
not agreed. He denied the suggestion that, as there was
refusal by the complainant therefore, accused nos. 1 and 2
went to the police station to lodge a complainant. He
deposed ignorance to that effect. Further, he states that,
he had showed the injuries sustained by him to his left
cheek and left thigh to the doctor. But, wound certificate is
silent to that effect. PW.12 Doctor Madhusudan has stated
only two injuries on the person of the complainant, when
he medically examined him at 6.45 p.m on 15.9.2003.
Therefore, we find a quite contradictory evidence with
regard to the injuries suffered by the complainant in the
alleged incident.
16. Further, he has stated that, in his chambers
lockers were searched in which the gold ornaments were
kept and this fact is not told by him. On that day, at about
- 14 -
NC: 2025:KHC-D:4138
4.30 p.m about 7 to 8 customers were there in the bank.
At that time, accused dragged him to a considerable
distance and at that time, 50 to 60 people gathered.
17. On perusal of his chief-examination as well as
cross-examination, it shows that, the said incident took
place at 4.30 p.m. when he was in his chambers.
According to him, accused Tabrej and Ganesha came to
his chamber started assaulting him and abused him in
filthy language and also gave a life threat to him. He
further states that, accused Tabrej caught hold his neck
and assaulted him by using steel bracelet. Because of this
he sustained injuries on his forehead and left shoulder.
The prosecution has produced the wound certificate to
show that he had sustained multiple abrasions on forearm
and also heamatoma on his forehead and injuries in simple
in nature. With regard to the assault on the person of the
complainant on the forearm, there is no evidence. Though
he states that, he had pain in his left cheek and left thigh,
the wound certificate is very much silent about the same.
- 15 -
NC: 2025:KHC-D:4138
He states that, the accused tried to take away the gold
ornaments from the strong room situated by the right side
of his chambers. All of them, dragged the accused
persons, took them outside the chambers. Two persons
fell down and they were accused Mahesha and Abeeb.
Further, he states that, the people gathered there and on
seeing the gathering of people, accused went away in a
rickshaw. For the first time, without any averments in the
complaint, he had stated so many facts in his chief
examination. Further, he states that, the bolt put to the
partition to his chamber had come out and the glass put to
the chambers were broken into pieces. The panchanama is
very much silent about the said bolt and the so called bolt
is not seized by the police.
18. PW.2 Gopal Subray Shet is a signatory to
panchanama has spoken about the incident. He has stated
that, the said Suvarna Co-operative Bank is situated on
Devikere Road. CW.8 showed him the place where incident
took place. There were banian and a shirt. The glass
- 16 -
NC: 2025:KHC-D:4138
pieces were there on the floor. He has stated in the cross-
examination that, he is signatory to Ex.P2 but, he does not
know what is written in it. Thus, nothing worth is elicited
from his mouth in the cross-examination by the
prosecution.
19. PW.3 is Ravi is also one of the customers who
was called by Market Police on 15.9.2003. It was about 6
to 7 p.m. He recognized the steel bracelet which was used
for the assault. It was seized from accused Tabrej. He
denied a suggestion regarding assault on the left cheek as
well as on thigh of the Manager of the Bank.
20. PW.4 Divyaspathi is also a panch witness. He
has stated that, police have taken his signature on
panchanama. He has stated that, he can identify his
signature on it but, he does not know what was written in
it.
21. PW.5 Ramdas is an employee of Suvarna
Co-operative Bank. He has stated that, while he was on
- 17 -
NC: 2025:KHC-D:4138
duty on 15.9.2003, at about 4.00 p.m. accused nos. 1 and
2 initially asked the peon where is the chamber of the
Manager and suddenly tresspassed into the chamber of
the Manager. He has spoken in line with the version of the
complainant. Further, in the cross-examination, he has
admitted the facts about his employment in the Suvarna
Co-op.Bank and the date of the incident. His evidence is
full of contradictions and omissions. We find improved
evidence spoken to by this witness.
22. PW.6 Dayananda is also an Assistant Manager
in the said Suvarna Co-operative Society, Sirsi. He has
stated, that on 15.9.2003 at about 4.00 p.m., when he
was in the counter of the bank, accused 1 and 2 came and
asked him that, they want to talk with the Manager. He
sent them to the Chambers of the Manager. They were
talking. At that, time he heard the loud sound. One Abdul
Sattar had signed as surety for the loan obtained by
Athesh Mulla. They asked the Manager to return the gold
ornaments which were pledged by Abdul Sattar. Manager
- 18 -
NC: 2025:KHC-D:4138
refused to return as they are pledged against the loan
taken by Athesh Mulla. At that time, accused no.1 came
and attacked on the Manager due to which, Manager's
shirt and banian were torn and there were injuries on his
person. By that time, accused no.2 dragged the Manager
to the ground floor. They all bombarded to rescue him. On
hearing the screaming sound, the public gathered. At that
time, the accused went away in a auto which was parked
outside the Bank. But in the cross-examination, there are
some improvements in his evidence and also
exaggerations.
23. PW.7 is Govardhan Gundu who was working as
Attender in the said Bank. He has also spoken in line with
evidence of PW.6 regarding the incident. But. in the cross-
examination he has denied all the allegations. He has been
declared as hostile witness to the prosecution case.
Nothing worth is elicited in the cross-examination.
- 19 -
NC: 2025:KHC-D:4138
24. PW.8 Mohan Vasudev Manakambe is a Director
of Suvarna Co-operatiave Bank, Sirsi and has stated that,
he knows the complainant. He states that, accused no.1
Tabrej came inside the chamber of PW.1 and started
assaulting the Manager stating that as he has not released
the gold ornaments kept in the Bank. He has stated that,
he is a Director of the Bank and would solve the problem.
But, the accused told him not to do and dragged the
Manager to the ground floor and there again, he assaulted
on the complainant. Then the accused went away in a auto
rikshaw. Later, Police came and they took the complainant
to the Police Station. He has stated that, accused no.2 did
not accompany accused no.1 to the chambers of the
complainant and has not attempted to assault the
Manager. Evidence of this witness is quite contrary to the
evidence of PW.1.
25. PW.9 is one Pundaleek is a shop keeper. He has
stated that, he had closed his shop on the day of incident.
- 20 -
NC: 2025:KHC-D:4138
Therefore, his evidence does not help the case of the
prosecution as he has not seen the incident.
26. PW.10 Athaf Ahmad Khan and PW.11
Mohammad Rafeeq are running fruits shops near Suvarna
Co-operative Bank. They have denied about witnessing the
incident. Thus, their evidence is not worth to be
considered.
27. PW.12 is Dr.Madhusudan has stated that, on
15.9.2003 at about 6.45 p.m. with history of assault, a
patient by name Vijayakumar aged about 44 years came
to his hospital. On examining him, he found multiple
abrasions over left fore arm over its volar aspect
measuring 2 cms x 1 cm each and haematoma over left
side of forehead measuring 3 x 2 cms. He has stated that,
the said injuries are simple in nature. He has been cross-
examined by the defence wherein, he has stated that, the
said injuries may happen when a person falls on the
ground. His evidence can be accepted to the extent of
- 21 -
NC: 2025:KHC-D:4138
examining the complainant and issuing of Ex.P9 the wound
certificate.
28. PW.13 Athes Mullah is the person who has
availed loan from the said Bank. But, he has stated that,
he does not know who stood surety for his loan. He has
been turned hostile.
29. PW.14 Sri B.Gireesh PSI, New Market Police
Station, Sirsi at the relevant time, stated that, on
15.9.2003, the complainant gave written complaint vide
Ex.P1. He registered the same in Crime No.106/2003. He
took custody of Tabrej and Ganesh who are accused nos. 1
and 2 in the present case. He has also seized the steel
bracelet used for assault marked as MO No.1.
30. In all criminal cases panchas are the authors of
the panchanama and investigation officers are the
supervisors of the investigation. Unless there is
corroborative evidence, the evidence of these
Investigation Officers become formal in nature. To the
- 22 -
NC: 2025:KHC-D:4138
extent of conducting investigation and filing of the charge
sheet, the evidence of these police officers is to be
accepted.
31. On perusal of the entire evidence stated by the
witnesses, particularly of PW.1, it shows that, he is not
consistent as to what time the said incident has taken
place. Such evidence requires corroboration. In the
absence of corroboration, the case of the prosecution
cannot be accepted. On scrupulous reading of the
evidence placed on record, most of the witnesses have
turned hostile especially PW.7 who was Attender of the
Bank, PW.8 Director of the Bank who was stated to be
with the complainant at the time of incident and PW.9 a
shop keeper nearby.
32. On overall reading of the entire evidence placed
on record by the prosecution, no eye witnesses have
supported the case of the prosecution. That means the
- 23 -
NC: 2025:KHC-D:4138
ingredients of the offences so alleged against the accused
are not fulfilled by the prosecution.
33. The prosecution evidence is full of
contradictions, omissions and discrepancies. PW is
evidence is full of improvements with exhaustive evidence.
The other employees of the Bank who were really present
and witnessed the incident are not examined. The
witnesses who are examined are not consistent about the
alleged assault on the person of PW.1-complainant. Based
upon the evidence of PW.1 that, accused assaulted him
and gave a life threat to him, it cannot be stated that, he
was really assaulted as alleged by him. His own evidence
shows that, when a request was made to return the gold,
he refused. Accused nos.1 and 2 were in the police station
when he went to police station. It is the defence of
accused nos.1 and 2 that, when PW.1 refused to return
the pledged gold ornaments, they went to police station to
lodge complaint. Perhaps to defeat the complaint of
accused nos.1 and 2, PW.1 must have designed a
- 24 -
NC: 2025:KHC-D:4138
complaint. He has not whispered about his refusal to
return the gold ornaments in his complaint.
34. The learned trial Court as well as the first
appellate Court have not properly appreciated the
evidence in proper perspective. Just believing the
evidence of PW.1 and evidence of the Investigating
Officer, have wrongly come to the conclusion that, accused
are guilty of the offences so alleged against them and
when there is no proper appreciation of the evidence by
both the Courts below, this Court can very well exercise its
power under Section 397 of Cr.P.C and interfere into such
judgments. In view of discussions made above, the
prosecution has utterly failed to prove the guilt of the
accused beyond all reasonable doubt. A doubt arises in
the case of prosecution and that benefit of doubt has to be
extended to the accused. Therefore, the accused are
entitled for acquittal by giving benefit of doubt.
- 25 -
NC: 2025:KHC-D:4138
35. Resultantly, I pass the following:
ORDER
i. Criminal Revision petition is
allowed.
ii. The judgment of conviction and
order of sentence passed in CC
No.351/2004 dated 04.07.2011 by
the I Addl. Judicial Magistrate First
Class at Sirsi and confirmed in
Crl.A.No.104/2011 dated 30.11.2017
by the I Addl. District and Sessions
Judge, U.K.Karwar sitting at Sirsi,
are hereby set aside.
iii. Consequently, accused nos.1 and 2
are acquitted of the charges
punishable under Sections 323 and
506 read with Section 34 of IPC.
iv. Their bail bonds if any shall stand
cancelled.
- 26 -
NC: 2025:KHC-D:4138
v. Fine amount if paid by the accused,
shall be refunded to the accused
forthwith digitally on due verification.
vi. Send the operative portion of the
judgment to the trial Court as well as
first appellate Court forthwith for
compliance through mail.
vii. Send back the trial Court records
along with a copy of the judgment
forthwith. So also send the copy of
the judgment of the first appellate
court for reference.
Sd/-
( RAMACHANDRA D. HUDDAR)
JUDGE
Sk/-
