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2023 DIGILAW 771 (KAR)

Tammanna v. State of Karnataka

2023-06-15

ANIL B.KATTI

body2023
JUDGMENT 1. Revision petitioner/accused No.1 feeling aggrieved by judgment of First Appellate Court on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur in Crl.A.No.4/2010, dtd. 31/10/2013, preferred this revision petition. 2. Parties to the revision petition are referred with their ranks as assigned before the trial Court for the sake of convenience. 3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that on 17/4/2007 at 1.00 p.m. complainant was driving bus bearing No.KA-25/F-1957 and stopped the said vehicle by Thippaikoppa cross for alighting passengers. At that time, accused came driving his tractor and stopped across the bus. The complainant asked the accused to take side of tractor, so that he can pass. However, accused No.1 assaulted on his neck and chest and accused No.2 fisted on his shoulder, thereby both the accused have voluntarily deterred the complainant being public servant from lawful discharged of his duties. On these allegations made in the complaint, investigation was carried out and investigating officer filed charge sheet. 4. In response to summons, accused Nos.1 and 2 have appeared through counsel. The trial Court on being prima facie satisfied framed charges for the offences alleged against them. Accused Nos. 1 and 2 pleaded not guilty and claimed to be tried. The prosecution to prove the allegations made against accused relied on the evidence of PWs-1 to 8 and documents at Exs.P.1 to 5, so also got identified M.O.1 and 2. 5. On closure of the prosecution evidence, statement of accused under Sec. 313 Cr.P.C. came to be recorded. Accused denied all the incriminating material evidence appearing against them and claimed that false case is filed. The trial Court after appreciation of evidence on record, convicted the accused No.1 for the offences punishable under Ss. 332, 353 and 504 of I.P.C. and acquitted accused No.2 from the charges levelled against him. 6. Revision petitioner/accused No.1 challenged the said judgment of conviction and order of sentence before the First Appellate Court in Crl.A.No.4/2010. The First Appellate Court on re-appreciation of evidence on record by judgment dtd. 31/10/2013, dismissed the appeal and confirmed judgment of conviction and order of sentence passed by trial Court. 7. 6. Revision petitioner/accused No.1 challenged the said judgment of conviction and order of sentence before the First Appellate Court in Crl.A.No.4/2010. The First Appellate Court on re-appreciation of evidence on record by judgment dtd. 31/10/2013, dismissed the appeal and confirmed judgment of conviction and order of sentence passed by trial Court. 7. Revision petitioner/accused No.1 challenged concurrent finding of both courts below contending that the approach and appreciation of oral and documentary evidence by both the Courts below are contrary to law and evidence on record. The defence of the accused has not been appreciated with reference to evidence of PWs.1, 4, 5 and 6 and their admission in the cross examination. The evidence of PW.7 Doctor who has treated injured complainant and issued wound certificate Ex.P.4 is not substantiated by the evidence of PWs.1, 4, 5 and 6. The courts below on misreading the evidence on record, erroneously recorded the finding holding that accused No.1 is guilty of the offences alleged against him. Therefore, prayed for allowing revision petition and to set aside the judgment of courts below. Consequently, to acquit the accused No.1 from the charges levelled against him. 8. In response to notice, learned High Court Government Pleader has appeared for respondent/State. 9. Heard the arguments of both sides. 10. On careful perusal of oral and documentary evidence placed on record, it would go to show that the incident in question took place on 17/4/2007 at about 1.00 p.m. in Thippaikoppa cross. The complainant driver of bus bearing No.KA-25/F-1957 stopped the vehicle at the cross for alighting the passengers. At that time, accused No.1, who came by his tractor asked the complainant to take bus side, further complainant asked the accused No.1 to wait for some time, since passengers alighting from the bus. However, both accused started abusing the complainant in filthy language. Accused No.1 dragged the complainant from the bus and assaulted on his neck and chest. Accused No.2 assaulted over his shoulder, thereby both the accused deter the complainant being public servant from lawful discharged of his duties. The prosecution to prove the said allegations, merely relied on the evidence of PW.1- driver of bus, who filed complaint as per Ex.P.1, PW.4 is conductor, PWs.5 and 6 are inmates of the bus and also eye witnesses to the incident. The prosecution to prove the said allegations, merely relied on the evidence of PW.1- driver of bus, who filed complaint as per Ex.P.1, PW.4 is conductor, PWs.5 and 6 are inmates of the bus and also eye witnesses to the incident. The said evidence was sought to be corroborated by evidence of doctor PW.7 and wound certificate Ex.P.4 with that of evidence of investigating officer PW.8. 11. The oral evidence of PWs.1 and 2, who are driver and conductor of the bus would go to show that they have spoken about the incident and accused questioning the complainant for not giving side to them and started abusing the complainant in filthy language. They have further deposed to effect that complainant has asked accused No.1 to wait for some time, since the passengers alighting from the bus. The accused No.1 dragged PW.1 and assaulted him by means of hand over his neck, chest and accused No.2 fisted on his shoulder. PW.1 has identified M.O.1 and 2-Uniform and Banyan. They have further deposed to the effect that accused have deterred PW.1 from lawful discharged of his duties as a public servant. 12. PWs.5 and 6 are inmates of the bus and eye witnesses to the incident and they have vouchsafed oral testimony of PWs.1 and 2 and incident that took place on 17/4/2007 and overt act of accused Nos.1 and 2 in deterring PW.1 from lawful discharged of his duties. The defence counsel though has subjected PWs.1, 4, 5 and 6 to cross examination, but nothing worth material has been brought on record, so as to discredit their evidence. The presence of accused and place of incident is not seriously disputed by defence counsel. PW.7 doctor has treated the injured PW.1 and issued wound certificate as per Ex.P.4. On perusal of evidence of PW.7 and wound certificate Ex.P.4, it would go to show that PW.1 was examined by PW.7 at about 1.30 p.m. in PHC, Masur and on examination found the following injuries. i) Abrasion over both sides of neck ii) Contusion over left side of forehead 2 c.m.X1 c.m. iii) Tenderness over left shoulder. The injury Nos.1 and 2 are opinioned to be simple in nature. i) Abrasion over both sides of neck ii) Contusion over left side of forehead 2 c.m.X1 c.m. iii) Tenderness over left shoulder. The injury Nos.1 and 2 are opinioned to be simple in nature. Looking to the time of incident at 1 p.m. and he being examined by PW.7 at 1.30 p.m at Masur PHC, it is evident that complainant PW1 suffered injuries found in the Ex.P.4 wound certificate, in the incident itself. 13. The defence has not elicited anything in the cross examination of PWs.1, 4, 5 and 6 that there were other occasion for the complainant PW.1 to suffer the injuries found in the wound certificate Ex.P.4. Therefore, from the said material evidence placed on record, it is evident that complainant PW.1 has suffered injuries found in Ex.P.4 due to overt act of accused. The said fact has been corroborated by oral evidence of PWs.1, 4, 5 and 6. The fact that PW.1 was on duty as driver of bus at the relevant point of time is not in dispute. Therefore, from the above referred material placed on record, the courts below have rightly held that the prosecution proved beyond all reasonable doubt the offences under Ss. 332, 353 R/w. Sec. 34 of I.P.C. The trial Court has acquitted the accused No.2 from the charges levelled against him. The prosecution has not challenged the judgment of acquittal passed by the trial Court and the same has attained finality. 14. The courts below have convicted the accused No.1 for the offence punishable under Sec. 504 of I.P.C. The evidence of PWs.1, 4, 5 and 6 is not consistent with regard to the alleged abusive words said to have been used by the accused No.1, which were intending to provoke complainant to commit breach of public peace. The mere reference of abusive words in complaint Ex.P.1 and evidence of PW.1 alone itself cannot be said as sufficient evidence to hold that there was intentional insult with intent to provoke breach of public peace. 15. The mere reference of abusive words in complaint Ex.P.1 and evidence of PW.1 alone itself cannot be said as sufficient evidence to hold that there was intentional insult with intent to provoke breach of public peace. 15. In this context of the matter, it is useful to refer to the judgment of Hon'ble Apex Court in Fiona Shrikhande V/s. State of Maharashtra, reported in AIR 2014 SC 957 , wherein it has been observed and held that "Sec. 504 of IPC comprises of the following ingredients viz., a) Intentional insult, b) the insult must be such as to give provocation to the persons insulted, and c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Sec. 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Sec. 504 of IPC." 16. The evidence of PWs.1, 4, 5 and 6 is not in conformity with principles enunciated in the above referred judgment of Honb'le Apex Court. Therefore, both courts below have committed serious error in holding that prosecution beyond all reasonable doubt proved the guilt of accused No.1 for the offence under Sec. 504 of I.P.C. 17. Now coming to the imposition of sentence, accused No.1 was sentenced to undergo simple imprisonment for six months for the offences punishable under Ss. 332, 353 and 504 of I.P.C. Now in view of reasons referred above, the finding of courts below for the offence punishable under Sec. 504 of I.P.C. held to be not sustainable in law. The offences punishable under Ss. 332, 353 of I.P.C. are punishable with imprisonment or with fine or with both. Therefore, discretion is left with the Court to impose imprisonment, fine or with both. The offences punishable under Ss. 332, 353 of I.P.C. are punishable with imprisonment or with fine or with both. Therefore, discretion is left with the Court to impose imprisonment, fine or with both. Looking to the facts and circumstances of the case and nature of injury suffered by PW.1 and other attending circumstances are taken into consideration, then it appears that imposition of simple imprisonment for the offences punishable under Ss. 332 and 353 of I.P.C. appears to be too harsh and the same needs to be interfered with by this Court. 18. Looking to the facts and circumstances of the case and evidence on record, if accused No.1 is sentenced to pay fine of Rs.5, 000.00 each for the offences punishable under Ss. 332 and 353 of I.P.C. and in default of payment of fine amount sentenced to undergo simple imprisonment for three months each is ordered will meet the ends of justice. Consequently, proceed to pass the following. ORDER Criminal Revision Petition filed by revision petitioner/accused No.1 is hereby partly allowed. The judgment of the First Appellate Court on the file of II Addl. District and Sessions Judge, Haveri, sitting at Ranebennur in Crl.A.No.4/2010, dtd. 31/10/2013, confirming the judgment of the trial Court on the file of JMFC, Hirekerur in C.C.No.209/2007, dated 6.1.20210 is hereby modified as under: Accused No.1 is sentenced to pay fine of Rs.5, 000.00 for the offence punishable under Sec. 332 of I.P.C. and in default of payment of fine amount sentenced to undergo simple imprisonment for three months. Accused No.1 is sentenced to pay fine of Rs.5, 000.00 for the offence punishable under Sec. 353 of I.P.C. and in default of payment of fine amount sentenced to undergo simple imprisonment for three months. Accused No.1 is acquitted for the offence under Sec. 504 of IPC. In exercising power under Sec. 357 of Cr.P.C., the entire fine amount is ordered to be paid to inujured/PW.1. The registry is directed to transmit the records with the copy of this judgment to trial Courts.