Allowed

Mohammed Ismail S/O. Mohammed Jameel Tamatagar v. the State of Karnataka

Karnataka HC18 Oct 2022CRL.RP/2206/2013

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a criminal revision petition filed by Mohammed Ismail, President of an Auto Drivers Union. The revision bench set aside the convictions and sentences of the subordinate courts and acquitted the petitioner of an offence under Section 332 of the IPC regarding voluntarily causing hurt to deter a public servant from his duty.

What did the court decide?

The judgment of conviction and order of sentence dated 03.07.2010 and the confirmation order dated 13.06.2013 have been set aside; the accused is acquitted of the offence under Section 332 of IPC.

Mohammed Ismail S/O. Mohammed Jameel Tamatagar… — Criminal Trial and Appeal | Karnataka HC (2022)

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Crl.R.P.2206/2013

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL REVISION PETITION NO.2206/2013

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BETWEEN

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MOHAMMED ISMAIL S/O MOHAMMED JAMEEL TAMATAGAR AGED ABOUT 34 YEARS OCC: BUSINESS/FRUIT MERCHANT R/AT NEAR VIDYARANYA SCHOOL NIZAMUDDIN COLONY, DHARWAD.

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…PETITIONER

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(BY SRI M.L. VANTI, ADVOCATE)

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AND

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Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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STATE OF KARNATAKA THROUGH TOWN P.S. DHARWAD, REP. BY SPP, HIGH COURT OF KARNATAKA CIRCUIT BENCH, DHARWAD.

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(BY SRI M.H. PATIL, AGA)

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…RESPONDENT

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W 401 OF CR.P.C SEEKING TO SET ASIDE THE JUDGMENT AND ORDER DATD 13.06.2013 PASSED BY THE PRL. DIST. & SESSIONS JUDGE, DHARWAD, IN CRL.A.NO.79/2010 REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER ON SENTENCE PASSED BY THE I- ADDL. SENIOR CIVIL JUDGE & CJM, DHARWAD, IN C.C.NO.585/2007 DATED 03.07.2010.

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THIS PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

Crl.R.P. 2206/2013

ORDER

This Criminal Revision Petition is filed by the petitioner seeking to set aside the judgment of conviction and order of sentence dated 03.07.2010 in CC No.585/2007 on the file of the I Additional Senior Civil Judge and CJM, Dharwad and its confirmation order dated 13.06.2013 in Criminal Appeal No.79/2010 on the file of Principal District and Sessions Judge, Dharwad wherein the petitioner had been convicted for the offence under Section 332, of IPC.

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For the sake of convenience, the parties would be referred to as per their rankings before the Trial Court.

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It is the case of the prosecution that on 14.08.2007 at about 11.30 p.m. when P.W.1 and P.W.4 were on patrolling duty near Sangam Circle, Dharwad, the accused asked P.W.1 about the hotel for dinner. P.W.1 told that hotel service was not available during the odd hour. By that time, P.W.6 and P.W.10 also joined there. All of a sudden, the accused alleged to have scolded all the

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Crl.R.P. 2206/2013

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witnesses, though P.W.1 advised him not to scold, he was scolding without hearing their words. The witnesses have suspected that he might have consumed alcohol and was taken to police station. In the police station, the accused alleged to have assaulted P.W.1 and P.W.4, as a result, both have sustained injuries. As such, a case was registered against him and the police have conducted the investigation and submitted the charge sheet for the offences under Sections 323, 332, 353, 504 of IPC.

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To prove the case of the prosecution the prosecution examined P.W.1 to P.W.11 and got marked Exs.P1 to P6. On the other hand, the accused got marked Ex.D1 endorsement.

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The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused under Section 332 of IPC and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-, in default of payment of fine, he shall undergo simple imprisonment for a period of two months.

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Crl.R.P. 2206/2013

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However, the accused was acquitted for the offences under Sections 323, 353 and 504 of IPC. When the order of sentence is challenged before the Appellate Court, the Appellate Court dismissed the appeal filed by the accused.

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Heard Sri. M.L.Vanti learned counsel for the petitioner and Sri.M.H.Patil, learned AGA for the respondent.

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Sri.M.L.Vanti, learned counsel for the petitioner

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submits that the judgment of conviction passed by the Trial Court and its confirmation by the Appellate Court in respect of the offence under Section 332 of IPC is contrary to the facts and the law. Hence, the concurrent findings recorded by both the Courts are liable to be set aside.

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It is further submitted that, the accused was President of Auto Drivers Union and he was tying banner on the eve of the Independence Day. During that time, the police have assaulted him and also registered the case which is used as sword to protect them from the illegal

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Crl.R.P. 2206/2013

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assault and arrest. In fact, the accused and the union members of Auto Drivers Union have staged dharna in front of the police station and lodged a complaint against the police persons who have assaulted the accused. The accused has received an endorsement which is marked as Ex.D1. The said endorsement is dated on 15.08.2007 at about 00.45 hours, in fact, the accused in his statement under Section 313 of Cr.P.C has categorically stated about the same before the Magistrate. These crucial points have not been considered by the Courts below. Therefore, the revision petition filed by the petitioner requires to be allowed.

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Per contra, Sri.M.H.Patil, learned AGA justifying the concurrent findings of conviction submits that, the accused being a President of Auto Drivers Union, deliberately and intentionally has assaulted P.W.1 and P.W.4 in order to over power the system to suit his convenience.

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Crl.R.P. 2206/2013

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It is further submitted that, the evidence of P.W.1, P.W.4 assumes significance as they are the injured witnesses. P.W.6 and P.W.10 who are also the police officials supported the case of the prosecution. In addition to the evidence of these witnesses, P.W.5, the Doctor who treated P.W.1-injured, has supported the case. Therefore, there is no reason to disbelieve their evidence. The evidence of P.W.1, P.W.4, P.W.6 and P.W.10 cannot be brushed aside as they are police officials. The evidence of these witnesses is corroborated by the evidence of P.W.5 who is independent witness and the Doctor who treated P.W.1. Therefore, the conviction recorded by the Trial Court for the offence punishable under Section 332 of IPC and its confirmation by the Appellate Court are appropriate and interference does not call for. Therefore, the learned AGA prays to dismiss the petition.

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After having heard the learned counsel for the parties, this Court being a Revisional Court, perused the documents available on record in order to assess the

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Crl.R.P. 2206/2013

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illegality or perversity crept into the findings of conviction recorded by the subordinate Courts.

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The case of the prosecution is that, the

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accused came on a motor cycle and asked P.W.1 about the hotel for dinner. The P.W.1 told that there was no hotel facility during the odd hours, there was a verbal exchange between P.W.1 and the accused. By that time, P.W.6 and P.W.10 being the police officials joined to the spot. The accused was abusing in the filthy language against the police officials and the officials have thought that he might have consumed alcohol and took him to the station to subject him for medical examination. During that process,

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soon after the accused reached the police station, the assaulted P.W.1 and the quarrel had been pacified by the intervention of other police officials.

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On careful reading of evidence of P.W.1 in the cross-examination it appears that, the members of Auto Drivers Union were preparing to celebrate Independence Day and it is also admitted that the accused was in the

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Crl.R.P. 2206/2013

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police station till 3.00 a.m., on 15.08.2007. It is also admitted that about 50 to 60 members of the Auto Drivers Union staged dharna in front of the police station and ultimately, the accused was sent back from the police station along with the other members of the union at about 3.00 a.m. During the interregnum, the accused has lodged a complaint against the police officials and an endorsement was issued by the police which is marked as Ex.D1. It is to be noted here that, though P.W.1 made several allegations against the accused to attract the ingredients of Sections 323, 332, 353, 504 of IPC, the subordinate Courts acquitted him for all the offences except Section 332 of IPC.

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Now it is relevant to refer Section 332 of IPC which reads thus,

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“332. Voluntarily causing hurt to deter public servant from his duty .- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant,

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Crl.R.P. 2206/2013

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shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

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On careful perusal of the above said provision,

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to attract the ingredients, one must have caused hurt to the public servant when he was on his duty with intention to prevent that person to discharge his duty as a public servant.

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As per the complaint, the accused had asked P.W.1 about the availability of hotel for dinner and according to P.W.4 and other witnesses, there was verbal exchange took place between the accused and P.W.1. The evidence of P.W.1 and P.W.4 clarified that the alleged assault said to have taken place when the accused reached the police station. However, the complaint discloses that he has abused the police officials near Sangam Circle and deterred them from discharging their duties. On careful reading of the complaint and the evidence of P.W.1, P.W.4, P.W.6 and P.W.10, it appears that there are some inconsistencies in the evidence of all these witnesses with

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Crl.R.P. 2206/2013

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regard to attracting the ingredients of Section 332 of IPC. Mere asking the whereabouts of the hotel for dinner does not amount to deterring the public servant from discharging his official duties. Moreover, it is admitted by the witnesses that the accused was the President of Auto Drivers Union. Such being the fact, asking about the hotel for dinner would not arise. The Trial Court and the Appellate Court committed a grave error in appreciating the evidence and convicted the accused. Therefore, the finding of conviction recorded by the subordinate Courts requires to be set aside.

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In the light of the observation made above, I proceed to pass the following:

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ORDER

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The Criminal Revision Petition is allowed.

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Judgment of conviction and order of sentence dated

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03.07.2010 in C.C No.585/2007 passed by the learned I Additional Senior Civil Judge, and CJM,

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Crl.R.P. 2206/2013

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Dharwad and its confirmation order dated 13.06.2013 in Criminal Appeal No.79/2010 passed by the learned Principal District and Sessions Judge, Dharwad are hereby set aside.

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The accused is acquitted for the offence under Section 332 of IPC and bail bonds executed, if any, stands cancelled.

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Sd/JUDGE

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Bss

Mohammed Ismail S/O. Mohammed Jameel Tamatagar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mohammed Ismail S/O. Mohammed Jameel Tamatagar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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