R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL REVISION PETITION NO.933 OF 2016 BETWEEN:
1. SRI. ANANDA, S/O. MURHTY, AGED ABOUT 27 YEARS, 2. SRI. VASU, S/O. LATE RAMAIAH, AGED ABOUT 36 YEARS, BOTH ARE RESIDING AT MANGANAHALLI, YESHWANTHAPURA HOBLI, BENGALURU-560 022.
... PETITIONERS (BY SRI: SRINATHA B.V., ADVOCATE FOR SRI. NANJUNDA GOWDA M.R., ADVOCATE) AND:
STATE OF KARNATAKA BY TAVAREKERE POLICE STATION, BENGALURU.
REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560 001.
…RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR. P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED AGAINST THE PETITINERS ON 07.04.2011 AND 30.04.2011 IN C.C. NO.3179/2009 ON THE FILE OF C.J.M., BANGALORE DIST., BANGALORE AND ALSO SET ASIDE THE JUDGEMENT AND ORDER DATED 01.03.2016 PASSED IN CRL. A. NO.29/2011 ON THE FILE OF PRL. DIST. AND S.J., BANGALORE RURAL DIST., BANGALORE.
THIS CRIMINAL REVISION PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER The learned counsel for the petitioners and the learned HCGP for the State are present. Though the matter is listed for admission, the same is taken up for final disposal with the consent of both the parties.
2. In this petition, challenging the judgment rendered by the appellate court in Crl.A. No.29/2011 dated 01.03.2016, whereby the appeal came to be allowed in part and extending the benefit of the provision of Probation of Offenders Act and directing each of them to pay compensation of Rs.2,000/- to PW2 is confirmed though the accused have convicted for the offence punishable under Section 323 of IPC and setting aside the judgment in respect of conviction for the rest of the offences punishable under Sections 324, 504 and 506 of IPC, consequently the accused persons were acquitted of the said charges leveled against them.
3. The factual matrix of the case are that on 10.05.2009 at about 9.30 p.m., at Manganahalli near the house of CW1, when CWs.1 to 4 were advising to CW 5 who is their relative to leave bad habits of consuming alcohol and such other habits that have been developed by him and to leave the friendship of bad friends, at that time the accused Nos.1 and 2 with their common intention of committing the offences assuming that they have been saying against them only, took up altercation and the accused No.1 assaulted CW.1 with hands and accused No.2 kicked CW.2 on her stomach who is the wife of CW1 and assaulted her with hands. In pursuance of the act of the accused, on filing of the complaint, a crime came to be registered against the accused where accused No.1 assaulted CW1 with means of hands and Accused No.2 who alleged to have kicked CW2 on her stomach who is said to be the 8 months pregnant lady and the wife of the complainant CW1, as a result of which she sustained severe pain and resulting in underwent cesarean and gave birth to a premature baby. The accused has extended life threat to CW1 to CW4 saying as to face the dire consequences. Subsequently, charges against the accused in CC No.3179/2009 have been framed against them and proceeded with case against them for facing the trial. Accordingly, PWs.1 to 7 have been examined and got marked Exs.P1 to 4 and so also got marked MO-1 seized during the course of investigation.
4. Subsequently, to closure of evidence of prosecution, the accused have been examined as required under Section 313 of Cr.P.C. and wherein the accused have denied the truth of the prosecution adduced so far. Subsequently, the accused did not come forward to adduce any defence evidence on their sides. Subsequently, after considering the arguments advanced by the prosecution and defence counsel, the trial court held conviction against the accused Nos.1 and 2 for the offence punishable under Sections 323, 324, 504 and 506 of IPC, whereas the accused Nos.1 and 2 are released under Section 4(3) of the Probation of Offenders Act, 1958 subject to the condition that in addition to hospital expenses of Rs.8,000/-, the accused Nos.1 and 2 shall pay further compensation amount of Rs.2,000/- each to PW2. The same has been incorporated in the operative portion of the order relating sentence passed by the trial court in CC No.3179/2009.
5. The judgment of conviction and order of sentence rendered by the trial court has been challenged before the first appellate court in Crl.A.No.29/2011 and the said appeal came to be allowed in part in its order dated 01.03.2016 whereby held that the conviction held against the accused for the offence punishable under Section 323 of IPC and extending their benefit under the provision of Probation of Offenders’ Act, 1958 and directing them to pay compensation of Rs.2,000/- each to PW2 is confirmed, but setting aside the rest of the conviction held against the accused under Sections 324, 504 and 506 of IPC.
6. The first appellate court has re-appreciated the entire evidence on record. CW5 Ananta is the nephew of the complainant PW1, he became addicted to bad vices. PW1 - complainant, PW2-Manjula who is the wife of the complainant, CW3 Nagaraj, so also his sister Roopa-CW4 have been called on 10.05.2019 to their house in order to advise CW5 – Anantha not to develop any bad vices. At that time, the incident was taken place, the same has narrated in the complainant. It is based upon the complaint filed by the complainant on 11.05.2009 at around 11.45 A.M., The crime came to be registered against the accused. Subsequently, the Investigating Officer has investigated the case thoroughly and laid the charge sheet. Though the trial court has held conviction against the accused in CC No.3179/2009 which incorporated in the operative portion of the order regarding sentence held by the trial court, but the appellate court in Crl.A.No.29/2011 has re-appreciated the entire evidence on record, consisting of the evidence of PW5 and so also the evidence of PW2 Manjula who is said to be the wife of the complainant and so also the evidence of PW3 Nagaraja, PW4 Ropa, so also PW7 who is said to be the doctor. These are all the witnesses which put-forth by the prosecution have been re-appreciated by the trial court and allowed the appeal in part and setting aside the conviction held by the trial court for the offence punishable under Sections 324, 504 and 506 of IPC. Consequently, the accused were acquitted of said charges, but conviction of the accused for the offence punishable under Section 323 of IPC and extending the benefit under the Probation of Offenders Act, 1958 and directing them to pay compensation of Rs.2,000/- to PW2 has been ordered. In this criminal revision petition, challenging the order passed by the first appellate court in Crl.A.No.29/2011 by urging various grounds.
7. The learned counsel for the petitioners who has taken me to the evidence of PW7 being a doctor who has given treatment to the injured, in which, he has not specifically stated the name of assailants before him at the earliest point of time. Further, he has taken contention that PW2 has not sustained any external or internal injuries on any part of the body. The same has not been appreciated by the trial court so also by the first appellate court. Therefore, in this petition, it is requires to be intervene the judgment rendered by the First Appellate Court in Crl.A.No.29/2001 dated 01.03.2016 by maintaining the conviction under Section 323 of IPC and also extending the benefit under Probation of Offenders Act, 1958, so also in terms of compensation of Rs.2,000/- be payable by accused Nos.1 and 2. These are all the contention taken by the learned counsel for the petitioners and seeking for intervention of the impugned judgment rendered by the appellate court in Crl.A.No.29/2011 and so also the judgment of conviction and order of sentence rendered by the trial court in CC No.3179/2009 in respect of the offence punishable under Section 323 of IPC, which has been maintained by the first appellate court are needs, if not, there shall be a miscarriage of justice.
8. The learned HCGP for the State has countered to the arguments advanced by the learned counsel for the petitioners by challenging the impugned judgment rendered by the First Appellate Court in Crl.A.No.29/2011, whereby maintaining the conviction under Section 323 of IPC and ordered to pay compensation at Rs.2,000/- each to PW2. PW2 is the wife of the complainant and she has stated in her evidence that on 10.05.2009 at 9.30 p.m., that herself along with her husband, CW5 and others were present in their house. In the meanwhile, her husband was advising CW5 Ananta in respect of indulging himself in bad activities. Therefore, there was an altercation took among the injured and accused. The said PW2 Manjula was a pregnant lady of 8 months, she went in order to rescue her husband, at that time Accused No.1 kicked on her stomach and accused No.2 said to be assaulted on her stomach, as a result of which she fell down unconsciously and when she regain consciousness, she was in Shobha Nursing Home and she was on treatment, then she underwent cesarean operation and delivered a baby which was a premature baby. While she was in hospital, the police came and took her statement. However, the appellate court as well as the trial court had considered the evidence of PWs.1, 3, 4, 5, 6 and 7 extensively and so also the evidence of PW6 who said to be the Investigating Officer laid charge sheet against the accused. The appellate court has considered entire material on record and allowed the appeal in part and setting aside the conviction held against the accused for the offence punishable under Sections 324, 504 and 506 of IPC, consequently, the accused are acquitted of the said charges, but the conviction of the accused for the offence punishable under Section 323 of IPC is maintained and extended the benefit under the relevant provision of the Probation of Offenders Act, 1958 and directing them to pay compensation of Rs.2,000/- to PW2. Therefore, the appellate court has already been taken a lenient view regarding the conviction held against the accused. Therefore, in this criminal revision petition, it does not call for any interference as submitted by the learned counsel for the petitioners/accused and no warranting circumstances to call for interference of the impugned judgment rendered by the first appellate court. These are all the contentions taken by the learned HCGP for the State and seeking for dismissal of the criminal revision petition preferred by the petitioners/Accused Nos.1 and 2 and maintain the conviction held by the court below.
9. It is in this background, taking into consideration the contentions taken by the learned counsel for the petitioners stated supra and so also the counter made by the learned HCGP for the State, it is relevant to refer that the prosecution has relied upon the evidence of PWs.1 to 4 and so also the evidence of PW7 said to be the doctor who had given treatment to PW2 Manjula and so also she has given birth to a premature baby as she was kicked by Accused No.1 and also assaulted by Accused No.2 with means of hands on her stomach as a result of which, Manjula fell unconscious. Subsequently, she was shifted to Shobha Nursing home where she regained conscious, she gave birth to a premature baby. The same could be seen from the evidence of PW7-doctor who has given treatment to her. The Appellate Court in Crl.A.No.29/2011 has considered the evidence extensively on the part of the prosecution. Though the accused have charge-sheeted and also facing of the trial for the offence punishable under Sections 324, 504 and 506 of IPC, so far as Section 504 of IPC is concerned, the accused has extended life threat to the complainant, but the prosecution did not place the evidence in corroborative manner, probablized that the accused had extended the criminal intimidation. The accused has been facing trial for the offence punishable under Section 324 of IPC. PW7 being a doctor deposed in his evidence on the part of the prosecution that he did not find any external or internal injury over the body. It is held in the evidence of the doctor that when the history was given, it was stated that PW2 Manjula was assaulted with means of hands. Therefore, the prosecution could not establish the guilt against the accused for the offence punishable under Sections 324, 504, 506 of IPC. So far Section 506 is concerned, it is attracted only if the accused facilitates the persons and thereby provokes them to commit breach of peace. If such is a situation, the Investigating Officer would have file the FIR and proceed with case for investigation and laid charge sheet against the accused for the offence punishable under Sections 324, 504, 506 of IPC. The prosecution did not facilitate the cogent as well as corroborative evidence to probablize that the accused have committed all these offences. Therefore, the First Appellate Court in Crl.A.No.29/2011 has rightly come to the conclusion by re-appreciating the entire evidence on record and setting aside the conviction held by the trial court in CC No.3179/2009 in respect of the offence punishable under Sections 324, 506, 506 of IPC. But in the appeal, it has maintained the conviction under Section 323 of IPC and extending the benefit under the Probation of Offenders Act, 1958 and directing the accused Nos.1 and 2 to pay a compensation of Rs.2,000/- each to PW2 Manjula who is said to be the injured. As all these allegations made in the charge sheet laid by the Investigating Officer against the accused, but the petitioners being arraigned as Accused Nos.1 and 2 and so also the complainant as well as PW2 Manjula said to be the relative to each other and the incident was taken place in front of the house of the complainant, however, the harmonious relationship is required to maintained among the family members said to be the relative to each other. Therefore, in this criminal revision petition, it does not arise for call for any interference, where the first appellate court in Crl.A.No.29/2011 has rightly come to the conclusion by maintaining the conviction held against the accused for the offence punishable under section 323 and also extending the benefit under the relevant provision of the Probation of Offenders Act, 1958. It is based upon the report as collected by the Probation Officer under the Probation of Offenders’ Act and the same has considered by the court below relating to their behavior, which maintained by them. However, in terms of the aforesaid reasons and findings, it is appropriate to reject the criminal revision petition filed by the accused Nos.1 and 2 as devoid of merits. Accordingly, I pass the following:
ORDER The criminal revision petition filed by the petitioners-accused Nos.1 and 2 under section 397 read with Section 401 of Cr.P.C. is hereby rejected.
Consequently, the judgment rendered by the appellate court in Crl.A.No.29/2011 dated 01.03.2016 shall be confirmed.
Sd/- JUDGE SNC