1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H DAY OF DECEMBER, 2019 BEFORE THE HONBLE MR. JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION No.577 OF2011BETWEEN :
Mohana @ Mohi @ Thimmaiah S/o Govindappa Aged 24 years Agriculturist R/at Lakkenahalli Kasaba Hobli Gubbi Taluk Tumkur District. (By Sri Y. S. Shivaprasad - Advocate) And: State of Karnataka By Gubbi Police Station Represented by State Public Prosecutor High court building Bangalore-560 001. ...... Petitioner
... Respondent (By Sri Thejesh .P - HCGP ) ****** 2 This Criminal Revision Petition is filed under Section 397(i) of the Code of Criminal Procedure, praying to, set aside the judgment of conviction and order of sentence dated 26.03.2009 passed by the C.J.
(Sr. Dn.,) and JMFC., Gubbi in C.C.No.188/2007 and confirmed order dated 08.03.2011 passed by the Presiding Officer, FTC-I, Tumkur in Crl.A.No.43/2009 and acquit the petitioner. This Criminal Revision Petition coming on for Hearing, this day, the Court made the following: ORDER
Heard the learned counsel Sri. Y.S. Shivaprasad for the petitioner and the learned HCGP Shri Thejesh for the State.
2. This Criminal Revision Petition is directed against the judgment passed by the Appellate Court in Crl.A.No.43/2009 dated 08.03.2011 dismissing the appeal and thus confirming the impugned judgment of conviction and sentence passed by the Trial Court in 3 C.C.No.188/2007 dated 26.03.2009. The Trial Court had convicted accused petitioner herein for offence under Sections 354 of IPC and sentenced him to undergo simple imprisonment for a period of six months but however, acquitted him for the offence under Section 506 IPC. The Appellate Court had dismissed the appeal filed by the accused and thus confirmed the order of the Trial Court, by its order dated 08.03.2011 in Crl.A.No.43/2009. It is against the said judgment that the petitioner has preferred this petition.
3. The factual matrix of the petition as per the case put forth by the prosecution is that on 28.01.2007 at about 2.30 p.m. in Lakkenahalli village, when the complainant Smt. Roopa / PW-1 was cutting firewood near the bank of a pond, it is alleged that the accused held her breast from behind and had tried to molest her. But however, PW-1 had at once cried for help as a result of which PWs 2 and 3 who were also cutting 4 firewood nearby had rushed to the spot. The accused on seeing both of them, had gone away from the spot however threatening the complainant of dire consequences if she complained the incident to the police. The complainant then went home and since her husband was not in town, lodged a complaint as per Exhibit P1 on the next day when her husband came home. Then the Gubbi Police registered a case in Cr.No.16/2007 for the aforesaid offences and proceeded for investigation. The statement of eye-witnesses were recorded including the statement of the complainants husband PW-4 and a spot mahazar was drawn as per Exhibit P2. PW-7 who had treated PW-1 gave the wound certificate which was marked as Exhibit P5. After completion of investigation, the charge sheet was submitted to the court of the Sr. Civil Judge and JMFC, Gubbi. The Magistrate then took cognizance and after securing the presence of the accused, framed charges for offences punishable under Sections 354 and 506 of 5 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined seven witnesses as PWs 1 to 7 and got marked five documents as Exhibits P1 to P5. Thereafter, the incriminating statement of the accused was recorded under Section 313 Cr.P.C. However he did not come forward to adduce any defence evidence. The learned Magistrate, after hearing the arguments of both sides, by its judgment dated 26.03.2009 convicted the accused for the offence under Section 354 IPC and sentenced him to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence of the Trial Court, the accused challenged the said judgment by way of Crl.A.No.43/2009. The Appellate Court on a re-appreciation of the evidence on record, dismissed the appeal and confirmed the conviction and sentence rendered by the Trial Court. 6 It is this order which is under challenge in this petition urging various grounds.
4. The learned counsel for the petitioner contends that both the courts below erred in holding the petitioner guilty of the offences alleged even when the same had not been proved beyond all reasonable doubt. It is the contention of the learned counsel that the prosecution had not at all placed cogent and consistent evidence in respect of the charges under Sections 354 IPC. He contends that the Trial Court has convicted the accused based on the oral evidence of PWs 1 and 2 who are the complainant and one of the eye-witnesses. The learned counsel contends that the complaint at Exhibit P1 was lodged after a lapse of 35 hours from the time of the alleged incident. However, when the said complaint was lodged, there was no whisper as regards the simple injuries on the body of PW-1 as found in Exhibit P5 wound certificate. Though there 7 was no impediment to have stated in the complaint as regards the injuries caused to the complainant in view of the alleged molestation, the same had not been stated in the complaint. Hence, the learned counsel contends that the Wound Certificate at Exhibit P5 has been created to suit the situation so as to implicate the petitioner for causing those injuries. It is the further contention of the learned counsel that PW-2 and PW-3 the alleged eye-witnesses to the incident had not at all fully supported the case of the prosecution. In that, PW-2 only partly supported the case whereas PW-3 had not at all supported the case of the prosecution and had turned hostile. Further, it is to be seen that both the eye-witnesses had not seen the petitioner molesting the complainant. They had only seen the petitioner moving away from the spot of the incident. The wound certificate reveals that she had sustained injuries on the elbow joint and knee joint apart from abrasion injuries on her breast. The learned 8 counsel contends that the complainant PW-1 was in fact cutting firewood and in the process would have sustained the said injuries. Even if the abrasion injury sustained on her breast is to be assumed to have been caused by the petitioner, there is no explanation forthcoming as regards the cause for the injuries sustained on her elbow joint and knee joint. Hence, the learned counsel contends that the prosecution has created a story so as to implicate the accused falsely. It is the further contention of the learned counsel that the Trial Court has failed to notice that there was a dispute between the complainant and the accused as regards ingress and aggress via the garden land of the accused. In that, PW-4, the husband of the complainant was in the habit of parking his luggage auto near the place where the petitioner was growing vegetables, thus spoiling the vegetable plants grown by the accused due to which accused was complaining 9 them about it. As a result, it is stated that PW-1 complainant as well as PW-4 husband of the complainant had hatched a plan to snub the petitioner on false charge of molesting her since PW-4 was always running his luggage auto over the vegetable plants. Further, it is contended that rest of the witnesses have not at all supported the case of the prosecution including the mahazar witnesses as per Exhibit P2. The main flaw in the case of the prosecution is that the Investigating Officer who had conducted the investigation has not at all been examined, which renders the case of the prosecution doubtful. In view of all these flaws, the learned counsel contends that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. The Trial Court rightly noticing the fact that the allegation of the complainant was not true as regards offence under Section 506 IPC, has acquitted the accused of the said offence, which judgment has also 10 been affirmed by the Appellate Court. Further, all the witnesses who have supported the case of the prosecution are all interested witnesses who were related to the complainant PW-1. Hence, the courts below ought not to have convicted the accused purely on the basis of interested witnesses. Hence the learned counsel contents that both the courts below have erred in appreciating the evidence of the witnesses mechanically without scrutinizing the same about the trustworthiness and credibility of the same. On all these grounds, the learned counsel for the petitioner prays that the order of conviction and sentence passed by the Trial Court in C.C.No.188/2007 dated 26.03.2009 which was affirmed by Appellate Court in Crl.A.No.43/2009 by order dated 08.03.2011 be set aside and the petitioner be acquitted of the offence under Section 354 IPC. 11 5. Per contra, learned HCGP for the State has taken me through the scope and object of Section 354 IPC. He contends that though the courts below have acquitted the petitioner from the offence under Section 506 IPC in view of the fact that there was no acceptable evidence relating to the said offence, it cannot be said that the accused did not molest the complainant. Hence he contends that the courts below have rightly held the accused guilty of offence under Section 354 IPC though acquitted him of the offence under Section 506 IPC. Hence, the learned HCGP contends that the order passed by both the Trial Court and the Appellate Court being just and proper, needs no interference in this revision petition.
6. On a careful consideration of the contentions advanced by the learned counsel for the petitioner - accused and the learned HCGP and having regard to the material on record, it is seen that the courts below have 12 erred in convicting the petitioner for an offence under Section 354 IPC in the absence of legally acceptable and clinching evidence. It is seen that the prosecution has not at all placed cogent and consistent evidence in respect of the offence under Section 354 of the IPC. Further, though sufficient opportunity was granted to the Investigating Officer to depose about the investigation conducted by him, it is seen that he never appeared and stated about the investigation done by him. Hence, non-examination of the Investigating Officer is fatal to the case of the prosecution in view of the fact that all the witnesses who were examined for the prosecution have not given cogent, corroborative and consistent evidence in order to prove the guilt of the accused beyond all reasonable doubt. The second thing to be noticed is there is no explanation given by the complainant as regards the cause of the injuries sustained in the Wound Certificate at Exhibit P5. The injuries as revealed from the wound 13 certificate are, abrasion injuries to the breast and injuries over both the elbow joints and knee joint. It is very much possible for the complainant to have sustained the above injuries due to a fall in the process of cutting firewood. Hence, I find that credibility cannot be placed on the said Wound Certificate at Exhibit P5 to convict the accused. Finally, it is to be noticed that complainant PW-1 as well as her husband PW-4 carried a grudge against the accused petitioner herein in view of the fact that the petitioner was complaining about PW-4 destroying the vegetable plants grown by the accused in his land by driving his luggage auto over the saplings and parking it in the land of the accused. Hence, there is a possibility for PW-1 as well as PW-4 to have foisted a false case against the accused. This also has been lost sight of by both the courts below while convicting the accused. Since the offence alleged against the accused has not been proved by the prosecution beyond all 14 reasonable doubt by placing cogent, corroborative and consistent evidence, consequently it is opined that the courts below ought to have acquitted the accused of the offence alleged by extending benefits of doubt.
7. At a cursory glance of the evidence of the witnesses, it is seen that they do not corroborate each other and further there are inconsistencies and contradictions in the case put forth by the prosecution. When there are inconsistencies and contradictions, the benefit of doubt shall accrue in favour of the accused. Hence, I am of the opinion that the prosecution has failed to establish the guilt of petitioner Accused for the offence under Section 354 IPC, beyond all reasonable doubt. Consequently, the petitioner/accused deserves to be acquitted. Accordingly, I proceed to pass the following:
15. ORDER This revision petition is allowed. The impugned order passed by the Trial Court in C.C.No.188/2007 dated 26.03.2009 as well as the impugned order passed by the Appellate Court in Crl.A.No.43/2009 dated 08.03.2011 are hereby set-aside. The petitioner accused is acquitted of the offence punishable under Sections 354 IPC. Sd/- JUDGE KS